A. A permanency hearing shall be commenced within six months of the initial judicial review of a child's dispositional order or within twelve months of a child entering foster care pursuant to Subsection D [E] of this section, whichever occurs first. Prior to the initial permanency hearing:
(1) the department shall submit a copy of any continuation of the dispositional order and notice of hearing to the council or any substitute care review board designated pursuant to Section 32A-8-5 NMSA 1978;
(2) the department shall submit a progress report to any designated substitute care review board;
(3) all parties to the hearing shall attend a mandatory meeting and attempt to settle issues attendant to the permanency hearing and develop a proposed treatment plan that serves the child's best interest; and
(4) any designated substitute care review board may review the child's case and the department's progress report and report its findings and recommendations to the court.
B. At the permanency hearing, all parties shall have the opportunity to present evidence and to cross-examine witnesses. At the conclusion of the permanency hearing, the court shall order one of the following permanency plans for the child:
(1) reunification;
(2) placement for adoption after the parents’ rights have been relinquished or terminated or after a motion has been filed to terminate parental rights;
(3) placement with a person who will be the child’s permanent guardian;
(4) placement in the legal custody of the department with the child placed in the home of a fit and willing relative; or
(5) placement in the legal custody of the department under a planned permanent living arrangement, provided that there is substantial evidence that none of the above plans is appropriate for the child.
C. If the court adopts a permanency plan of reunification, the court shall adopt a plan for transitioning the child home and schedule a permanency review hearing within three months. If the child is reunified, the subsequent hearing may be vacated.
D. At the permanency review hearing, all parties and the child’s guardian ad litem or attorney shall have the opportunity to present evidence and cross-examine witnesses. Based on the evidence, the court shall:
(1) change the plan from reunification to one of the alternative plans provided in Subsection B of this section;
(2) dismiss the case and return custody of the child to the child’s parent, guardian or custodian;
(3) continue legal custody of the child in the department to complete a transition home to the child’s parent, guardian or custodian and continue the case plan for not more than six months, after which the case shall be dismissed unless the plan is changed as provided in Paragraph (1) of this subsection; or
(4) return the child to the custody of the child's parent, guardian or custodian, subject to any conditions or limitations as the court may prescribe, including protective supervision of the child by the department and continuation of the case plan for not more than six months, after which the case shall be dismissed. The department may seek removal of a child from the home by obtaining an order in the pending case or by seeking emergency removal under Section 32A-4-6 NMSA 1978 during the period of protective supervision if the child's best interest requires such action. When a child is removed in this situation, a permanency hearing shall be scheduled within thirty days of the child coming back into the department’s legal custody.
E. The court shall hold a permanency hearing and adopt a permanency plan for a child within twelve months of the child entering foster care. For purposes of this section, a child shall be considered to have entered foster care on the earlier of:
(1) the date of the first judicial finding that the child has been abused or neglected; or
(2) sixty days after the date on which the child was removed from the home.
F. The court shall hold permanency hearings every twelve months when a child is in the legal custody of the department.
G. The children’s court attorney shall give notice of the time, place and purpose of any permanency hearing or permanency review hearing held pursuant to 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.
H. The Rules of Evidence shall not apply to permanency hearings. The court may admit testimony by any person given notice of the permanency hearing who has information about the status of the child or the status of the treatment plan. All testimony shall be subject to cross-examination.
HISTORY:
Laws 1997, ch. 34, § 8; 2005, ch. 189, § 50; 2009, ch. 239, § 46; 2016, ch. 54, § 7; 2016, ch. 60, § 3.
Amendment Notes.
The 2005 amendment, effective June 17, 2005, in the first sentence of Subsection A, added “or within twelve months of a child entering foster care pursuant to Subsection E of this section, whichever occurs first”; in Subsection B, deleted the former first sentence, which read: “During a permanency hearing, there should be a rebuttable presumption that the child’s best interest will be served by returning the child to his parent, guardian or custodian”, inserted “permanency”, and substituted “order one of the following permanency plans for the child” for “determine if sufficient evidence was presented to rebut the presumption” at the end; deleted former Subsections C through G, which pertained to rebuttable of sufficient and insufficient evidence in permanency hearings, and redesignated the remaining subsections accordingly; added Paragraphs B(1) through (5) and Subsections C through F and redesignated the remaining subsections accordingly; and in Subsection G, inserted “or permanency review hearing”.
The 2009 amendment, effective July 1, 2009, substituted “Subsection (D)” for “Subsection (E)” in (A); added (D); redesignated former (D) through (H) as (E) through (I); substituted “including the child by and through the child’s guardian ad litem or attorney” for “the child’s guardian ad litem” in (H); and made stylistic changes.
The 2016 amendments. Laws 2016, ch. 54, § 7 and Laws 2016, ch. 60, § 3 both amended this section. Pursuant to 12-1-8 NMSA 1978, the section is set out as amended by Laws 2016, ch. 60, § 3 with the amendments by Laws 2016, ch. 54, § 7 reconciled and incorporated within.
The 2016 amendment by Laws 2016, ch. 54, § 7, effective May 18, 2016, substituted “case plan” for “treatment plan” in the second sentence of A; added “within a reasonable period depending on the facts and circumstances of the case, but not to exceed six months” in the first sentence of C; deleted former D; redesignated former E through I as D through H; added D(3); redesignated former D(3) as D(4); and substituted “case plan” for “treatment plan” in the first sentence of D(4). The 2016 amendment by Laws 2016, ch. 60, § 3, effective July 1, 2016, rewrote A and H; and substituted “that consideration” for “the consideration” in the third sentence of D.
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
Abandonment.
Remand for reconsideration was necessary because a parent's parental rights were improperly terminated by a finding of abandonment, under NMSA 1978, § 32A-4-28(B)(1), in that the district court terminated the parent's rights without giving the parent the opportunity for assessment and treatment that it had previously ordered and that the parent should have been afforded under NMSA 1978, § 32A-4-28(B)(2). State ex rel. Children, Youth & Families Dep't v. Maurice H. (In re Grace H.), No. 34126, 2014 N.M. LEXIS 209 (N.M. June 12, 2014), op. withdrawn, sub. op., 2014-NMSC-034, 335 P.3d 746, 2014 N.M. LEXIS 317 (N.M. 2014).
Duty to identify relatives.
Children, Youth and Families Department's efforts to place the Children with relatives were sufficient to satisfy the requirements of this section, as the Department identified relatives but was unable to find a suitable option. State ex rel. Children v. Casey J., 2015-NMCA-088, 355 P.3d 814, 2015 N.M. App. LEXIS 68 (N.M. Ct. App. 2015).
Department’s efforts fell far below any standard of reasonableness in regard to identifying relatives who may have served as an appropriate placement for a neglected child, as required by Subsection D of this section, when the Department was aware of but failed to consider placement with the child’s cousin, who was caring for the child’s half brother, had expressed interest in the child, and had qualified as a foster parent. State ex rel. Children, Youth & Families Dep't v. Laura J., 2013-NMCA-057, 301 P.3d 860, 2012 N.M. App. LEXIS 105 (N.M. Ct. App. 2012), cert. denied, 301 P.3d 858, 2013 N.M. LEXIS 216 (N.M. 2013).
Loss of parental rights.
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).
Trial court’s decision not to provide a mother with additional process through custody, adjudicatory, and dispositional hearings after the guardianship of the grandmother was revoked was consistent with the permanent guardianship procedures where the child had not been in the mother’s custody for over five years and the mother’s presence in the child’s life during the guardianship was so detrimental that the trial court had ordered two permanent restraining orders prohibiting the mother from contacting the child or the child’s caregivers. 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).
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).
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).
Remand.
Reversal of the district court’s termination of the father’s parental rights was, in many ways, the equivalent of a rebutted presumption favoring adoption. Consequently, the alternative dispositions were persuasive indications of what should happen on remand. 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).
Research References and Practice Aids
Cross references.
Disposition of adjudicated abused or neglected child, 32A-4-22 NMSA 1978.
Periodic review of dispositional judgments, 32A-4-25 NMSA 1978.