Chapter 32A, Article 4 NMSA 1978 may be cited as the “Abuse and Neglect Act”.
HISTORY:
1978 32A-4-1, enacted by Laws 1993, ch. 77, § 95; 2016, ch. 54, § 1.
Amendment Notes.
The 2016 amendment, effective May 18, 2016, substituted “Chapter 32A” for “Chapter 32.”
Notes to Decisions
Children.
Complaint alleging that defendants violated children's constitutional rights not to be placed in danger by state officials contained sufficient factual allegations to show that defendants had a special, custodial relationship with the children for substantive due process purposes even though social workers accomplished a voluntary placement arrangement from the children's mother to a family friend and then back again while bypassing New Mexico Children's Code procedures. While the state did not financially provide for the children's welfare, it dictated who would provide for them, controlled how long the family friend would provide for them, and shaped how she would care for them. Valdez v. Roybal, No. CIV 15-1039 JB/SCY, 2016 U.S. Dist. LEXIS 62872 (D.N.M. May 12, 2016).
Complaint plausibly alleged that when a social worker decided that children were better off with a family friend than with their mother, he abdicated his professional judgment in transferring the children using a mechanism that deprived the children of all of the protections that the New Mexico Children's Code provided and by failing to follow state regulations. The complaint also plausibly alleged that another social worker abdicated his professional judgment when he returned the children to their mother without evaluating her home or her caretaking abilities and without following Children's Code procedures. Valdez v. Roybal, No. CIV 15-1039 JB/SCY, 2016 U.S. Dist. LEXIS 62872 (D.N.M. May 12, 2016).
Generally.
Under former 32-1-29D NMSA 1978, any motion to disqualify, on the basis that the children’s court adjudicatory judge was also the children’s court transfer hearing judge, should be filed at least 10 days prior to the hearing on adjudication in order to be timely. State v. Doe, 1980-NMCA-177, 95 N.M. 369, 622 P.2d 274, 1980 N.M. App. LEXIS 993 (N.M. Ct. App. 1980).
Even though the judge who conducted the transfer hearing to transfer the juvenile action to the district court presided at the petition for disqualification, a reasonable time was construed into former 32-1-29D NMSA 1978. The petition to disqualify was filed on the day before or the day of the hearing was untimely. State v. Doe, 1980-NMCA-177, 95 N.M. 369, 622 P.2d 274, 1980 N.M. App. LEXIS 993 (N.M. Ct. App. 1980).
Children.
Under the Abuse and Neglect Act, the trial court had the discretion but was not required to order continued visitation between the father and the child, and the father was given an opportunity to persuade the court that visitation was in the child’s best interest. The father was unable to convince the trial court, and the appellate court was unable to say that the trial court’s decision was an abuse of discretion. State ex rel. Children, Youth & Families Dep't v. Lance K., 2009-NMCA-054, 146 N.M. 286, 209 P.3d 778, 2009 N.M. App. LEXIS 28 (N.M. Ct. App.), cert. denied, 146 N.M. 641, 2009 N.M. LEXIS 691 (N.M. 2009).
Due to their abuse and neglect of four of their eight children, a couple’s parental rights as to the four children were terminated pursuant to the New Mexico Abuse and Neglect Act, 32A-4-1 NMSA 1978 et seq.; the trial court’s decision to terminate their parental rights was supported by clear and convincing evidence as required by 32A-4-28B(2) NMSA 1978, a provision of the Act. State ex rel. Children, Youth & Families Dep't v. David F. (In re Annette F.), 1996-NMCA-018, 121 N.M. 341, 911 P.2d 235, 1995 N.M. App. LEXIS 165 (N.M. Ct. App. 1995), cert. denied, 121 N.M. 242, 910 P.2d 318, 1996 N.M. LEXIS 44 (N.M. 1996).
Jurisdiction.
Abuse and Neglect Act [32A-4-1 NMSA 1978], containing comprehensive procedures concerning the termination of parental rights when children have been abused or neglected, did not govern a defendant’s sentence for sexual contact with a minor; although as a condition of probation defendant was prohibited from all contact with minors, including his own children, this did not amount to a de facto termination of his parental rights requiring jurisdiction in the children’s court. State v. Garcia, 2005-NMCA-065, 137 N.M. 583, 113 P.3d 406, 2005 N.M. App. LEXIS 53 (N.M. Ct. App. 2005).
Kinship guardians.
Omitting “guardian” from the Abuse and Neglect Act, NMSA 1978, § 32A-4-1 et seq., did not determine whether a kinship guardian could be involuntarily dismissed from abuse and neglect proceedings until his or her guardianship was properly revoked because the Kinship Guardianship Act, NMSA 1978, § 40-10B-1 et seq., bestowed parental rights on kinship guardians which had to be properly revoked prior to involuntarily dismissing kinship guardians from abuse and neglect proceedings. State ex rel. Children, Youth & Families Dep't v. Djamila B. (In re Mahdjid), 2015-NMSC-003, 342 P.3d 698, 2014 N.M. LEXIS 393 (N.M. 2014).
Loss of parental rights.
Termination of mother’s parental rights was appropriate, even though she had done her best to comply with treatment plan, where her psychological infirmities rendered her unable to safely parent her children and meet their psychological and emotional needs in the foreseeable future. State ex rel. Children, Youth & Families Dep't v. Athena H., 2006-NMCA-113, 140 N.M. 390, 142 P.3d 978, 2006 N.M. App. LEXIS 107 (N.M. Ct. App. 2006).
Trial court properly terminated mother’s parental rights to her children where the mother was incarcerated on federal drug charges for a period of five years; no matter what her defense, or what services she received, the overwhelming obstacle was that the children would be in foster care for well over five years until she could be available to care for them, with no guarantees that placement with her after her release would be in their best interest. There was no due process violation regarding her absence at the permanency hearings as she had a full opportunity to present evidence and examine witnesses at the termination hearing. State ex rel. Children, Youth & Families Dep't v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796, 2004 N.M. App. LEXIS 70 (N.M. Ct. App. 2004).