A. The initial judicial review shall be held within sixty days of the disposition. At the initial judicial review, the parties shall demonstrate to the court efforts made to implement the treatment plan approved by the court in its dispositional order. The court shall determine the extent to which the treatment plan has been implemented and make supplemental orders as necessary to ensure compliance with the treatment plan and the safety of the child. Prior to the initial judicial review, the department shall submit a copy of the adjudicatory order, the dispositional order and notice of the initial judicial review to the council. The staff of the council, or an entity contracting with the council, shall review the case. If the staff or contracting entity determines that the case meets the criteria established in council rules, the staff or contracting entity shall designate the case for review by a substitute care review board. A representative of the substitute care review board, if designated, shall be permitted to attend and comment to the court.
B. The court shall conduct subsequent periodic judicial reviews of the dispositional order within six months of the conclusion of the permanency hearing or, if a motion has been filed for termination of parental rights or permanent guardianship, within six months of the decision on that motion and every six months thereafter. Prior to a subsequent periodic judicial review, the department shall submit a progress report to the council or any designated substitute care review board. Prior to any judicial review by the court pursuant to this section, the substitute care review board may review the dispositional order or the continuation of the order and the department’s progress report and report its findings and recommendations to the court.
C. Judicial review pursuant to this section may be carried out by either of the following:
(1) a judicial review hearing conducted by the court; or
(2) a judicial review hearing conducted by a special master appointed by the court; provided, however, that the court approve any findings made by the special master.
D. The children’s court attorney shall give notice of the time, place and purpose of any judicial review hearing held pursuant to Subsection A, B or C of this section to:
(1) all parties, including:
(a) the child alleged to be neglected or abused or in need of court-ordered services, by and through the child’s guardian ad litem or attorney;
(b) the child’s parent, guardian or custodian, who has allegedly neglected or abused the child or is in need of court-ordered services; and
(c) any other person made a party by the court;
(2) the child’s foster parent or substitute care provider;
(3) the child’s court-appointed special advocate; and
(4) if designated by the council, the substitute care review board.
E. At any subsequent judicial review hearing held pursuant to Subsection B of this section, the department and all parties given notice pursuant to Subsection D of this section shall have the opportunity to present evidence and to cross-examine witnesses. At the hearing, the department shall show that it has made reasonable effort to implement any treatment plan approved by the court in its dispositional order and shall present a treatment plan consistent with the purposes of the Children’s Code for any period of extension of the dispositional order. The respondent shall demonstrate to the court that efforts to comply with the treatment plan approved by the court in its dispositional order and efforts to maintain contact with the child were diligent and made in good faith. The court shall determine the extent of compliance with the treatment plan and whether progress is being made toward establishing a stable and permanent placement for the child.
F. The Rules of Evidence shall not apply to hearings held pursuant to this section. The court may admit testimony by any person given notice of the hearing who has information about the status of the child or the status of the treatment plan.
G. At the conclusion of any hearing held pursuant to this section, the court shall make findings of fact and conclusions of law.
H. When the child is an Indian child, the court shall determine during review of a dispositional order 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 were followed and whether the child’s treatment plan provides for maintaining the child’s cultural ties. When placement preferences have not been followed, good cause for noncompliance shall be clearly stated and supported.
I. Based on its findings at a judicial review hearing held pursuant to Subsection B of this section, the court shall order one of the following dispositions:
(1) dismiss the action and return the child to the child’s parent without supervision if the court finds that conditions in the home that led to abuse have been corrected and it is now safe for the return of the abused child;
(2) permit the child to remain with the child’s parent, guardian or custodian subject to those conditions and limitations the court may prescribe, including protective supervision of the child by the department;
(3) return the child to the child’s parent and place the child under the protective supervision of the department;
(4) transfer or continue legal custody of the child to:
(a) the noncustodial parent, if that is found to be in the child’s best interests;
(b) a relative or other individual who, after study by the department or other agency designated by the court, is found by the court to be qualified to receive and care for the child and is appointed as a permanent guardian of the child; or
(c) the department, subject to the provisions of Paragraph (6) of this subsection;
(5) continue the child in the legal custody of the department with or without any required parental involvement in a treatment plan. Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child’s health and safety unless the court finds that such efforts are not required. The court may determine that reasonable efforts are not required to be made when the court finds that:
(a) the efforts would be futile; or
(b) the parent, guardian or custodian has subjected the child to aggravated circumstances;
(6) make additional orders regarding the treatment plan or placement of the child to protect the child’s best interests if the court determines the department has failed in implementing any material provision of the treatment plan or abused its discretion in the placement or proposed placement of the child; or
(7) if during a judicial review the court finds that the child’s parent, guardian or custodian has not complied with the court-ordered treatment plan, the court may order:
(a) the child’s parent, guardian or custodian to show cause why the parent, guardian or custodian should not be held in contempt of court; or
(b) a hearing on the merits of terminating parental rights.
J. Dispositional orders entered pursuant to this section shall remain in force for a period of six months, except for orders that provide for transfer of the child to the child’s noncustodial parent or to a permanent guardian.
K. When the court determines, pursuant to Paragraph (5) of Subsection I 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. The department shall make reasonable efforts to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.
HISTORY:
1978 32A-4-25, enacted by Laws 1993, ch. 77, § 119; 1995, ch. 206, § 24; 1997, ch. 34, § 7; 1999, ch. 77, § 8; 2005, ch. 189, § 49; 2009, ch. 239, § 45; 2016, ch. 60, § 2.
Amendment Notes.
The 2005 amendment, effective June 17, 2005, deleted Paragraph H(5)(c), 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, substituted “including the child by and through the child’s guardian ad litem or attorney” for “the child’s guardian ad litem” in (C); added “or attorney” following “child’s guardian ad litem” in (D); and made stylistic changes.
The 2016 amendment, effective July 1, 2016, added “judicial” in the section heading; and rewrote the section.
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
Authority of court.
Because the continuing jurisdiction of the New Mexico children’s court to modify a child’s disposition under 32A-4-24 NMSA 1978 coupled with the mandatory six-month periodic review hearings required in 32A-4-25 NMSA 1978 constituted an ongoing state judicial proceeding in which an adequate opportunity existed for mentally and developmentally disabled children to raise their claims alleging that New Mexico state officers had violated various federal acts by failing to provide the children with services, benefits, and protections guaranteed by federal statutory and constitutional law, a federal district court properly abstained from hearing the action. A federal action would have interfered with the state’s authority by fundamentally changing the dispositions and oversight of the children by the federal court’s assumption of an oversight role. J.B. v. Valdez, 186 F.3d 1280, 44 Fed. R. Serv. 3d (Callaghan) 179, 1999 U.S. App. LEXIS 20169 (10th Cir. N.M. 1999).
Although the Children's Code, under former 32-1-38.1F NMSA 1978 ( 32A-4-25 NMSA 1978), authorizes the children's court to order that legal custody of a child remain with the human services department, it does not grant the children's court the power to dictate to the department where a child should be placed. State ex rel. Human Servs.Dep't, 1988-NMCA-100, 107 N.M. 769, 764 P.2d 1327, 1988 N.M. App. LEXIS 94 (N.M. Ct. App. 1988).
Custody.
Because the New Mexico child services agency had legal custody of plaintiff grandchildren, it had authority to determine where and with whom they would reside without a court order, and thus, defendant social workers’ change of the grandchildren’s physical custody from plaintiff grandmother did not implicate the grandchildren’s Fourth Amendment rights. Hunt v. Green, 376 F. Supp. 2d 1043, 2005 U.S. Dist. LEXIS 14619 (D.N.M. 2005).
Evidence.
—Generally.
In accordance with 32A-4-25E NMSA 1978, judicial review hearings, which are governed by 32A-4-25 NMSA 1978, are not subject to the rules of evidence; thus, in a case involving termination of a mother’s parental rights, the trial court committed no error by basing its finding of futility, made at a judicial review hearing, on hearsay evidence. State ex rel. Children, Youth & Families Dept. v. Vanessa C., 2000-NMCA-025, 128 N.M. 701, 997 P.2d 833, 2000 N.M. App. LEXIS 13 (N.M. Ct. App.), cert. denied, 128 N.M. 690, 997 P.2d 822, 2000 N.M. LEXIS 119 (N.M. 2000).
Homosexuality alone, without evidence of harm to the child, is not a bar to custody; the children’s court’s findings that homosexuality alone demonstrated that a child’s brother was unable to provide a suitable environment for the child were overruled. State ex rel. Human Servs.Dep't, 1988-NMCA-100, 107 N.M. 769, 764 P.2d 1327, 1988 N.M. App. LEXIS 94 (N.M. Ct. App. 1988).
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).
Nature of hearings.
According to 32A-4-25B NMSA 1978, judicial reviews are held to assess the New Mexico Children, Youth and Families Department’s implementation of a treatment plan and a parent’s progress and compliance with it; such hearings do not conform to the constraints of a usual adversarial hearing, as cross-examination is not conducted and the rules of evidence do not apply. No such exceptions are found in the guiding authority for the conduct of termination hearings; termination hearings are more formal and comply with the rules of court because of the weighty issue — final termination of parental rights — that is being considered at them. State ex rel. Children, Youth & Families Dep't v. Erika M. (In re R.C.), 1999-NMCA-036, 126 N.M. 760, 975 P.2d 373, 1999 N.M. App. LEXIS 12 (N.M. Ct. App. 1999).
Process and procedure.
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).
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 32A-4-22C NMSA 1978 because the mother’s parental rights to a sibling child had already been terminated by the court; the mother continued to use drugs and remained unemployed and without a home. There was no risk of an erroneous deprivation of her parental rights while her appeal in a prior termination case was pending; therefore, she was not entitled to a delayed aggravated circumstances finding under this section. 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).
Although the rules of evidence do not necessarily apply in judicial review hearings concerning parental rights, the hallmarks of the adversarial process, the presentation of evidence and the cross-examination of witnesses, are both contemplated in and permitted by 32A-4-25D and E NMSA 1978. State ex rel. Children, Youth & Families Dept. v. Vanessa C., 2000-NMCA-025, 128 N.M. 701, 997 P.2d 833, 2000 N.M. App. LEXIS 13 (N.M. Ct. App.), cert. denied, 128 N.M. 690, 997 P.2d 822, 2000 N.M. LEXIS 119 (N.M. 2000).
Public policy.
Record on a mother’s appeal of a trial court’s termination of parental rights did not indicate that the mother filed any requested findings of fact or conclusions of law, and ordinarily, when a party that sought review of the evidence failed to submit requested findings of fact, an appellate court did not review a claim that the evidence was insufficient, but the appellate court chose to review the case; it did not want to delay the appeal any further by requesting additional briefs in light of the public policy in favor of limiting the time a child is in substitute care expressed in former 32-1-38.2A and B NMSA 1978. In re R.W., 1989-NMCA-008, 108 N.M. 332, 772 P.2d 366, 1989 N.M. App. LEXIS 12 (N.M. Ct. App.), cert. denied, 108 N.M. 273, 771 P.2d 981 (N.M. 1989).
Reunification.
Where the child was removed from the home due to abuse and neglect under 32A-4-22C NMSA 1978, the child was taken into custody by the New Mexico Children, Youth, and Families Department (CYFD) and a reunification plan was entered; 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 his actions prevented progress toward reunification under 32A-4-25B NMSA 1978. 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).
Standard.
In a case where a grandmother sought visitation, the arbitrary and capricious standard applied because the district court was reviewing a discretionary act by the New Mexico children, youth, and families department. 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).