A. If not held in conjunction with the adjudicatory hearing, the dispositional hearing shall be commenced within thirty days after the conclusion of the adjudicatory hearing. At the conclusion of the dispositional hearing, the court shall make and include in the dispositional judgment its findings on the following:
(1) the interaction and interrelationship of the child with the child’s parent, siblings and any other person who may significantly affect the child’s best interest;
(2) the child’s adjustment to the child’s home, school and community;
(3) the mental and physical health of all individuals involved;
(4) the wishes of the child as to the child’s placement;
(5) the wishes of the child’s parent, guardian or custodian as to the child’s custody;
(6) whether reasonable efforts have been made by the department to identify, locate and give notice to all grandparents and other relatives and to conduct home studies on any appropriate relative who expresses an interest in providing care for the child. If the court finds that reasonable efforts in these areas have not been made, the court may make supplemental orders as necessary and may reconsider the matter at the initial judicial review and subsequent periodic review hearings;
(7) whether consideration has been given to the child’s familial identity and connections;
(8) whether there exists a relative of the child or other individual who, after study by the department, is found to be qualified to receive and care for the child;
(9) the availability of services recommended in the case plan prepared as a part of the predisposition study in accordance with the provisions of Section 32A-4-21 NMSA 1978;
(10) the ability of the parent to care for the child in the home so that no harm will result to the child;
(11) whether reasonable efforts were made by the department to prevent removal of the child from the home prior to placement in substitute care and whether reasonable efforts were made to attempt reunification of the child with the natural parent;
(12) whether reasonable efforts were made by the department to place siblings in custody together, unless such joint placement would be contrary to the safety or well-being of any of the siblings in custody, and whether any siblings not jointly placed have been provided reasonable visitation or other ongoing interaction, unless visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings; and
(13) if the child is an Indian child, whether the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the child’s Indian tribe have been followed and whether the Indian child’s case plan provides for maintaining the Indian child’s cultural ties. When placement preferences have not been followed, good cause for noncompliance shall be clearly stated and supported.
B. If a child is found to be neglected or abused, the court may enter its judgment making any of the following dispositions to protect the welfare of the child:
(1) permit the child to remain with the child’s parent, guardian or custodian, subject to those conditions and limitations the court may prescribe;
(2) place the child under protective supervision of the department; or
(3) transfer legal custody of the child to one of the following:
(a) the noncustodial parent, if it is found to be in the child’s best interest; or
(b) the department.
C. If a child is found to be neglected or abused, in its dispositional judgment the court shall also order the department to implement and the child’s parent, guardian or custodian to cooperate with any case plan approved by the court. Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child’s health and safety. The court may determine that reasonable efforts are not required to be made when the court finds that:
(1) the efforts would be futile; or
(2) the parent, guardian or custodian has subjected the child to aggravated circumstances.
D. Any parent, guardian or custodian of a child who is placed in the legal custody of the department or other person pursuant to Subsection B of this section shall have reasonable rights of visitation with the child as determined by the court, unless the court finds that the best interests of the child preclude any visitation.
E. The court may order reasonable visitation between a child placed in the custody of the department and the child’s siblings or any other person who may significantly affect the child’s best interest, if the court finds the visitation to be in the child’s best interest.
F. Unless a child found to be neglected or abused is also found to be delinquent, the child shall not be confined in an institution established for the long-term care and rehabilitation of delinquent children.
G. When the court vests legal custody in an agency, institution or department, the court shall transmit with the dispositional judgment copies of the clinical reports, the predisposition study and report and any other information it has pertinent to the care and treatment of the child.
H. Prior to a child being placed in the custody or protective supervision of the department, the department shall be provided with reasonable oral or written notification and an opportunity to be heard. At any hearing held pursuant to this subsection, the department may appear as a party.
I. When a child is placed in the custody of the department, the department shall investigate whether the child is eligible for enrollment as a member of an Indian tribe and, if so, the department shall pursue the enrollment on the child’s behalf.
J. When the court determines pursuant to Subsection C of this section that no reasonable efforts at reunification are required, the court shall conduct, within thirty days, a permanency hearing as described in Section 32A-4-25.1 NMSA 1978. Reasonable efforts shall be made to implement and finalize the permanency plan in a timely manner.
HISTORY:
1978 32A-4-22, enacted by Laws 1993, ch. 77, § 116; 1997, ch. 34, § 6; 1999, ch. 77, § 7; 2005, ch. 189, § 47; 2009, ch. 239, § 42; 2016, ch. 54, § 6.
Amendment Notes.
The 2005 amendment, effective June 17, 2005, in Paragraph A(4), substituted “to the child’s placement” for “to his custodian”; and deleted Paragraph C(3), which formerly read: “the parental rights of the parent to a sibling of the child have been terminated involuntarily”.
The 2009 amendment, effective July 1, 2009, added (A)(10); redesignated former (A)(10) as (A)(11); and made related and stylistic changes.
The 2016 amendment, effective May 18, 2016, added A(6) and A(7); redesignated former A(6) through A(11) as A(8) through A(13); substituted “case plan” for “treatment plan” in A(9); substituted “made” for “used” twice in A(11); substituted “child's case plan” for “child's treatment plan” in the first sentence of A(13); substituted “one of the following” for “any of the following” in the introductory language of B(3); deleted former B(3)(b), which read: “an agency responsible for the care of neglected or abused children”; deleted former B(3)(c), which read: “a child-placement agency willing and able to assume responsibility for the education, care and maintenance of the child and licensed or otherwise authorized by law to receive and provide care for the child”; added B(3)(b); substituted “case plan” for “treatment plan” in the first sentence of C; and made a related change.
Applicability.
Laws 2009, ch. 239, § 71 makes the provisions of this act applicable to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.
Notes to Decisions
Aggravated circumstances.
Mother’s right to due process was not violated by the termination of her parental rights based on the district court’s finding that her child had been subjected to aggravated circumstances under Subsection C of this section because the mother’s parental rights to a sibling child had already been terminated by the court. As the mother continued to use drugs and remained unemployed and without a home during the pendency of the case, there was no risk of an erroneous deprivation of her parental rights while her appeal in the prior termination case was pending. State ex rel. Children, Youth & Families Dep't v. Raquel M., 2013-NMCA-061, 303 P.3d 865, 2013 N.M. App. LEXIS 30 (N.M. Ct. App.), cert. quashed, 308 P.3d 134, 2013 N.M. LEXIS 342 (N.M. 2013).
Applicability.
District court erred by terminating the mother’s parental rights before it ensured that the New Mexico Children, Youth, and Families Department (Department) fully complied with 32A-4-22I NMSA 1978; the Department should not have contested the continuance requested by the mother upon learning that she had begun the enrollment process. State ex rel. Children, Youth & Families Dep't v. Marsalee P., 2013-NMCA-062, 302 P.3d 761, 2013 N.M. App. LEXIS 34 (N.M. Ct. App. 2013).
Termination of parental rights to a sibling triggers the elimination of the requirement of reasonable efforts, at the discretion of the court, if there are other factors to reflect that reunification efforts will not be successful. State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845, 2002 N.M. App. LEXIS 102 (N.M. Ct. App. 2002).
Claim preclusion.
Because the Children, Youth and Families Department could not have brought its purported “claim” in the first tribunal, and the statutory/regulatory framework intended to authorize the documentation of information related to alleged abuse and neglect, claim preclusion did not apply; investigative decisions were not precluded by previous dismissals, and once the judicial proceedings were no longer pending, an owner's remedy was contained within the New Mexico Administrative Code. State ex rel. Children, Youth & Families Dept. v. Scott C., 2016-NMCA-012, 365 P.3d 27, 2015 N.M. App. LEXIS 100 (N.M. Ct. App. 2015), cert. denied, 370 P.3d 474, 2016 N.M. LEXIS 9 (N.M. 2016).
Constitutionality.
Termination of a kinship guardianship must be one of the prerequisites to a valid adoption because of the guardian's legal relationship to the child, and, absent termination of the kinship guardianship, the guardian has a right to be heard about whether adoption is in the best interest of the children. Since the result of an adoption is the creation of the legal relationship of parent and child, any existing kinship guardianship relation with children must necessarily be terminated before the adoption can be completed; even if the adoption takes place under the authority of the New Mexico Abuse and Neglect Act, the requirements have to be satisfied. State ex rel. Children, Youth & Families Dep't v. Djamila B., 2014-NMCA-045, 322 P.3d 444, 2014 N.M. App. LEXIS 11 (N.M. Ct. App.), aff'd on other grounds, 2015-NMSC-003, 342 P.3d 698, 2014 N.M. LEXIS 393 (N.M. 2014).
The provision of 32A-4-2C, 32A-4-22C and 32A-4-28B(2) NMSA 1978, that the fact of a previous termination of parental rights is an aggravating factor in subsequent actions for termination of parental rights, did not deny the mother due process; the provision is only one of several factors found by the court in exercising discretion to relieve the agency of reunification efforts. State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845, 2002 N.M. App. LEXIS 102 (N.M. Ct. App. 2002).
Custody.
Where a mother’s daughter was her third illegitimate child and the daughter lived in a home with the mother, the mother’s sister, and the sister’s illegitimate child, the daughter was found to be “dependent and neglected” pursuant to former 13-9-2, 1953 Comp.; as such, the court found that it was in the daughter’s welfare and best interest that she remain in custody of the intervenors. Herman v. McIver, 1959-NMSC-055, 66 N.M. 36, 341 P.2d 457, 1959 N.M. LEXIS 938 (N.M. 1959).
Hearing requirement.
Complaint plausibly alleged that defendants violated children's rights to court access, as a social worker's unilateral decision to remove them from their biological mother and place them under the exclusive care and control of a family friend (and another social worker's decision to return them to their mother) constituted custody determinations, which could normally only be made in a manner consistent with, and governed by, the requirements of the New Mexico Children's Code. By transferring custody without following state law, the social workers deprived the children of the Children's Code's protections and safeguards, which prevented them from accessing the court system and seeking placement with a safe and appropriate caregiver. Valdez v. Roybal, No. CIV 15-1039 JB/SCY, 2016 U.S. Dist. LEXIS 62872 (D.N.M. May 12, 2016).
Children's court erred by ignoring its earlier adjudication of neglect in an abuse and neglect proceeding and by changing course, absent a dispositional hearing based on its finding of neglect, in allowing termination of parental rights by presumptive abandonment, as it had already adjudicated neglect and the parent wished to make efforts toward reunification by pursuing a treatment plan as the court and the New Mexico Children, Youth and Families Department had discussed at the time of the adjudication of neglect. State ex rel. Youth & Families Dep't v. Melvin C., 2015-NMCA-067, 350 P.3d 1251, 2015 N.M. App. LEXIS 49 (N.M. Ct. App. 2015).
New Mexico children, youth, and families department’s failure to provide a mother with custody, adjudicatory, and dispositional hearings after the agency’s petition for emergency custody of a daughter did not deprive the mother of the benefit of judicial review, the right to an adjudication of the neglect and abuse, or the opportunity for a treatment plan where, over the course of several years, the mother had been afforded numerous opportunities to be heard and present a defense, the trial court had specifically found that the child was and had been a neglected child following the emergency custody petition, and further efforts at reunification were not required as the trial court had concluded that reunification was not a feasible permanency plan alternative. State ex rel. Children, Youth & Families Dep't v. Browind C., 2007-NMCA-023, 141 N.M. 166, 152 P.3d 153, 2006 N.M. App. LEXIS 171 (N.M. Ct. App. 2006), cert. denied, 142 N.M. 15, 162 P.3d 170, 2007 N.M. LEXIS 245 (N.M. 2007).
Indeterminate sentence.
The children’s court is not statutorily authorized, pursuant to a plea agreement, to commit a child who has been adjudicated delinquent to the legal custody of the Children Youth & Families Department (CYFD) for an indeterminate period up to the age of eighteen; the children’s court had no authority to impose an indeterminate initial commitment greater than two years and less than to age twenty-one. Children, Youth & Families Dep't v. Paul G., 2006-NMCA-038, 139 N.M. 258, 131 P.3d 108, 2006 N.M. App. LEXIS 9 (N.M. Ct. App. 2006).
Indian child.
This statute does not require the Children, Youth and Families Department (CYFD) to implement all possible methods in its investigation; however, the CYFD complied with this statute and investigated whether the children were eligible for enrollment in an Indian tribe where the evidence showed that documents requested by the CYFD were not received, the mother was not cooperative, and it was determined that the children were not eligible based on the information that the CYFD had. The CYFD did not have to depose the mother, subpoena birth records, or conduct other avenues of investigation. State ex rel. Children v. Nathan H., 2016-NMCA-043, 370 P.3d 782, 2016 N.M. App. LEXIS 1 (N.M. Ct. App. 2016).
Investigations.
By expressly identifying different decision-makers, different purposes, and different standards of proof, the statutes and regulations appear to contemplate inclusion of substantiated reports in the Children, Youth and Families Department's child abuse database, even where abuse cannot be proven by clear and convincing evidence in children's court. State ex rel. Children, Youth & Families Dept. v. Scott C., 2016-NMCA-012, 365 P.3d 27, 2015 N.M. App. LEXIS 100 (N.M. Ct. App. 2015), cert. denied, 370 P.3d 474, 2016 N.M. LEXIS 9 (N.M. 2016).
Given the purposes of the substantiation investigation and its documentation requirements, applying the common law doctrine of claim preclusion would thwart the designs of the Children's Code and put children who are faced with recurring abuse or neglect at even greater risk of harm. State ex rel. Children, Youth & Families Dept. v. Scott C., 2016-NMCA-012, 365 P.3d 27, 2015 N.M. App. LEXIS 100 (N.M. Ct. App. 2015), cert. denied, 370 P.3d 474, 2016 N.M. LEXIS 9 (N.M. 2016).
Mootness of appeal.
Because the issue of sufficiency of the evidence is capable of repetition but may evade appellate review, mother’s appeal of an adjudication of neglect was not rendered moot by dismissal of the underlying case during the pendency of the appeal. State ex rel. Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141 N.M. 299, 154 P.3d 674, 2006 N.M. App. LEXIS 173 (N.M. Ct. App. 2006).
Placement of child.
Father’s emergency motion to dismiss abuse and neglect proceeding and for immediate placement of child with father was properly granted. Because appellate court had determined that there was insufficient evidence that father had neglected child, the Department had no basis to maintain custody of Child. Further, the child often visited with the father, who behaved appropriately; the child connected with the father; the father’s home was prepared for the child; and the father was willing to maintain visitation with the mother. State ex rel. Children, Youth & Families Dep't v. Lisa A., 2008-NMCA-087, 144 N.M. 324, 187 P.3d 189, 2008 N.M. App. LEXIS 48 (N.M. Ct. App. 2008).
Reunification plan.
Where the child was removed from the home due to abuse and neglect, the child was taken into custody by the New Mexico Children, Youth, and Families Department (CYFD) and a reunification plan was entered under N.M. Stat. Ann. § 32A-4-22C; the father refused a home visit, gave up trying to call the child, moved to Colorado and made no effort to contact CYFD; the district court did not err by terminating the father’s parental rights because he failed to communicate with the child. State ex rel. Children, Youth & Families Dep't v. Benjamin O., 2009-NMCA-039, 146 N.M. 60, 206 P.3d 171, 2009 N.M. App. LEXIS 19 (N.M. Ct. App. 2009).
Visitation.
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).
Grandmother did not have the right to unfettered visitation with her grandchild after an adoption; moreover, it had been determined that visitation was not in the child’s best interest after the child was adjudicated as abused and neglected partially due to conflict between the mother and the grandmother. State ex rel Children, Youth & Families Dep't v. Senaida C., 2008-NMCA-007, 143 N.M. 335, 176 P.3d 324, 2007 N.M. App. LEXIS 147 (N.M. Ct. App. 2007).