Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Current Through February 2016

Physical Abuse

Citation: Ann. Stat. § 32A-4-2‘Abused child’ means a child:

• Who has suffered or is at risk of suffering serious harm because of the action or inaction of the child’s parent, guardian, or custodian
• Who has suffered physical abuse inflicted or caused by the child’s parent, guardian, or custodian
• 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
• Whose parent, guardian, or custodian has knowingly or intentionally tortured, cruelly confined, or cruelly punished the child

‘Physical abuse’ includes, but is not limited to, any case in which the child exhibits evidence of skin bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling, or death, and:

• There is no justifiable explanation for the condition or death.
• The explanation given for the condition or death is inconsistent with the degree or nature of the condition or the nature of the death.
• Circumstances indicate that the condition or death may not be the product of an accidental occurrence.

‘Great bodily harm’ means an injury to a person that creates a high probability of death, that causes serious disfigurement, or that results in permanent or protracted loss or impairment of the function of a member or organ of the body.

Neglect

Citation: Ann. Stat. § 32A-4-2‘ Neglected child’ means a child:

• Who has been abandoned by the child’s parent, guardian, or custodian
• 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 that person’s failure or refusal to provide them
• 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
• Whose parent, guardian, or custodian is unable to discharge his or her responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental disorder or incapacity
• Who has been placed for care or adoption in violation of the law

Sexual Abuse/Exploitation

Citation: Ann. Stat. § 32A-4-2The term ‘abused child’ includes a child who has suffered sexual abuse or sexual exploitation inflicted by the child’s parent, guardian, or custodian.

‘Sexual abuse’ includes, but is not limited to, criminal sexual contact, incest, or criminal sexual penetration, as those acts are defined by State law.

‘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 photographing
• Filming or depicting a child for obscene or pornographic commercial purposes

Emotional Abuse

Citation: Ann. Stat. § 32A-4-2The term ‘abused child’ includes a child who has suffered emotional or psychological abuse inflicted or caused by the child’s parent, guardian, or custodian.

Abandonment

Citation: Ann. Stat. § 32A-4-2
‘Abandonment’ includes instances when the parent, without justifiable cause:

• Left the child without provision for the child’s identification for a period of 14 days
• Left the child with others, including the other parent or an agency, without provision for support and without communication, for a period of 3 months if the child was younger than age 6 at the commencement of the 3-month period, or 6 months if the child was older than age 6 at the commencement of the 6-month period

Standards for Reporting

Citation: Ann. Stat. § 32A-4-3
A report is required when any person knows or has a reasonable suspicion that the child is abused or neglected.

Persons Responsible for the Child

Citation: Ann. Stat. § 32A-4-2Responsible persons include the child’s parent, guardian, or custodian.

Exceptions

Citation: Ann. Stat. § 32A-4-2Nothing in the Children’s Code shall be construed to imply that a child who is being provided with treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof, is for that reason alone a neglected child. It is further provided that no child shall be denied the protection afforded to all children under the Children’s Code.

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Ann. Stat. § 40-13-2‘Domestic abuse’ means:

• An incident of stalking or sexual assault whether committed by a household member or not
• An incident by a household member against another household member consisting of or resulting in:
  • Physical harm
  • Severe emotional distress
  • Bodily injury or assault
  • A threat causing imminent fear of bodily injury by any household member
  • Criminal trespass
  • Criminal damage to property
  • Repeatedly driving by a residence or work place
  • Telephone harassment
  • Harassment
  • Harm or threatened harm to children

Domestic abuse does not mean the use of force in self-defense or in the defense of another.

Defined in Child Abuse Reporting and Child Protection Laws

Citation:This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

Citation: Ann. Stat. §§ 30-3-12 through 30-3-16‘Assault against a household member’ consists of:

• An attempt to commit a battery against a household member
• Any unlawful act, threat, or menacing conduct that causes a household member to reasonably believe that he or she is in danger of receiving an immediate battery

‘Aggravated assault against a household member’ consists of:

• Unlawfully assaulting or striking at a household member with a deadly weapon
• Willfully and intentionally assaulting a household member with intent to commit any felony

‘Assault against a household member with intent to commit a violent felony’ consists of any person assaulting a household member with intent to kill or commit any murder; mayhem; criminal sexual penetration in the first, second, or third degree; robbery; kidnapping; false imprisonment; or burglary.

‘Battery against a household member’ consists of the unlawful, intentional touching or application of force to the person of a household member when done in a rude, insolent, or angry manner.

‘Aggravated battery against a household member’ consists of the unlawful touching or application of force to the person of a household member with intent to injure that person or another.

Persons Included in the Definition

Citation: Ann. Stat. §§ 40-13-2; 30-3-11In civil law: ‘Household member’ means:

• A spouse or former spouse
• A parent, present or former stepparent, or present or former parent-in-law
• A grandparent or grandparent-in-law
• A child, stepchild, or grandchild
• A coparent of a child
• A person with whom the petitioner has had a continuing personal relationship

Cohabitation is not necessary to be deemed a household member for purposes of this section.

‘Coparents’ means persons who have a child in common regardless of whether they have been married or have lived together at any time.

In criminal law: ‘Household member’ means:

• A spouse or former spouse
• A parent, present or former stepparent, or present or former parent-in-law
• A grandparent or grandparent-in-law
• A coparent of a child
• A person with whom a person has had a continuing personal relationship

Cohabitation is not necessary to be deemed a household member for the purposes of this section.

‘Continuing personal relationship’ means a dating or intimate relationship.

Current Through June 2013

Confidentiality of Records

Citation: Ann. Stat. § 32A-4-33All records or information concerning a party to a neglect or abuse proceeding, including social records, diagnostic evaluations, psychiatric or psychological reports, videotapes, transcripts and audio recordings of a child’s statement of abuse, or medical reports incident to or obtained as a result of a neglect or abuse proceeding or that were produced or obtained during an investigation in anticipation of or incident to a neglect or abuse proceeding shall be confidential and closed to the public.

Persons or Entities Allowed Access to Records

Citation: Ann. Stat. § 32A-4-33The records described above shall be disclosed only to the parties and:

• Court personnel
• Court-appointed special advocates
• The child’s guardian ad litem
• The attorney representing the child in an abuse or neglect action, a delinquency action, or any other action under the Children’s Code
• Department personnel
• Any local substitute care review board or any agency contracted to implement local substitute care review boards
• Law enforcement officials
• District attorneys
• Any State government social services agency in any State or, when the department believes it is in the best interests of the child, a government social services agency of another country
• Persons or entities of an Indian Tribe specifically authorized to inspect the records
• A foster parent if the records concern the social, medical, psychological, or educational needs of a child currently placed or being considered for placement with that foster parent
• School personnel if the records concern the child’s social or educational needs
• Health-care or mental health professionals involved in the evaluation or treatment of the child, the child’s parents, guardian, custodian, or other family members
• Protection and advocacy representatives
• Children’s safe house organizations conducting investigatory interviews of children on behalf of a law enforcement agency or the department
• Any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court

A parent, guardian, or legal custodian whose child has been the subject of an investigation of abuse or neglect where no petition has been filed shall have the right to inspect any medical report, psychological evaluation, law enforcement reports, or other investigative or diagnostic evaluation. Any identifying information related to the reporting party or any other party providing information shall be deleted. The parent, guardian, or legal custodian also shall have the right to the results of the investigation and the right to petition the court for full access to all department records and information except those records and information the department finds would be likely to endanger the life or safety of any person providing information to the department.

When Public Disclosure of Records is Allowed

Citation: Ann. Stat. § 32A-4-33.1After learning that there is reasonable suspicion that a child fatality was caused by abuse or neglect, the department shall release the following information within 5 business days:

• The age and gender of the child
• The date of death
• Whether the child was in foster care or in the home of the child’s parent or guardian at the time of death
• Whether an investigation is being conducted by the department

Upon completion of a child abuse or neglect investigation into a child’s death, if it is determined that abuse or neglect caused the child’s death, the following documents shall be released upon request:

• A summary of the department’s investigation
• A law enforcement investigation report, if in the department’s possession
• A medical examiner’s report, if in the department’s possession

Prior to releasing any document, the department shall consult with the district attorney and shall redact:

• Information that would, in the opinion of the district attorney, jeopardize a criminal investigation or proceeding
• Identifying information related to a reporting party or any other party providing information
• Information that is privileged, confidential, or not subject to disclosure pursuant to any other State or Federal law

Once documents have been released, the department may comment on the case within the scope of the release. Information released by the department consistent with the requirements of this section does not require prior notice to any other individual.

Nothing in this section shall be construed as requiring the department to obtain documents that are not in the abuse and neglect case file.

Use of Records for Employment Screening

This issue is not addressed in the statutes reviewed.

Current Through March 2015

Citation: Ann. Stat. § 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 the reporting laws, 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.

Current Through February 2013

Individual Responsibility to Report

Citation: Ann. Stat. § 32A-4-3A mandated reporter who knows or has reasonable suspicion that a child is abused or neglected shall report the matter immediately.

Content of Reports

Citation: Ann. Stat. § 32A-4-3(B)The written report shall contain:

• The names and addresses of the child and the child’s parents, guardian, or custodian
• The child’s age
• The nature and extent of the child’s injuries, including any evidence of previous injuries
• Any other information that the reporter believes might be helpful in establishing the cause of the injuries and the identity of the person responsible for the injuries

Reporting Suspicious Deaths

Citation:This issue is not addressed in the statutes reviewed.

Reporting Substance-Exposed Infants

Citation:This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Citation: Ann. Stat. § 32A-4-3Reports shall be made to:

• A local law enforcement agency
• The Children, Youth and Families Department
• The Tribal law enforcement or social services agency for an Indian child residing in Indian country

A law enforcement agency receiving the report shall immediately transmit the facts of the report by telephone to the department and a written report within 48 hours. The department shall immediately transmit the facts of the report by telephone to a local law enforcement agency and a written report within 48 hours.

Initial Screening Decisions

Citation: Admin. Code Tit. 8, §§ 10.2.8; 10.2.13The purpose of child protective services (CPS) intake is to:

• Receive reports of alleged child abuse or neglect
• Determine if the situation reported may constitute abuse or neglect as defined by law
• Determine if an investigation by CPS and a referral to another agency is warranted

The intake workers shall prioritize accepted reports as follows:

• Emergency report (E): A report alleging a serious and immediate safety threat involving a vulnerable child, including but not limited to, an abandoned infant; any physical injury to an infant; a potentially life-threatening situation; recent sexual abuse; a law enforcement request for immediate response; and recent serious trauma, such as a head injury, burns, or broken bones. A report prioritized as an emergency requires that an investigation be initiated within 3 hours.
• Priority 1 report (P1): A report alleging physical injury involving a vulnerable child who is in a safe environment at the time of the report, or a report alleging a serious impending safety threat involving a vulnerable child but where the alleged perpetrator will not have access to the child for the next 24 hours. A P1 report requires that an investigation be initiated within 24 hours.
• Priority 2 report (P2): A report alleging an impending safety threat involving a vulnerable child with no immediate concern for the child’s safety. This may include, but is not limited to, alleged physical abuse with no indication of injury or alleged abuse or neglect when the alleged perpetrator no longer has access to the child or a protective parent or guardian has already intervened. A P2 report requires that an investigation be initiated within 5 calendar days.

Agency Conducting the Assessment/Investigation

Citation: Ann. Stat. §§ 32A-4-3; 32A-4-4The recipient of a report shall take immediate steps to ensure prompt investigation of the report and take steps to protect the health or welfare of the alleged child victim, as well as any other child under the same care who may be in danger of abuse or neglect. A local law enforcement officer trained in the investigation of child abuse and neglect is responsible for investigating reports of alleged child abuse or neglect at schools, daycare facilities, or child care facilities. Reports alleging neglect or abuse shall be referred to the department, which shall conduct an investigation to determine the best interests of the child with regard to any action to be taken.

Assessment/Investigation Procedures

Citation: Admin. Code Tit. 8, §§ 10.3.10; 10.3.12The caseworker shall conduct the investigation in a manner that protects the privacy of the child and family. The caseworker shall:

• Make efforts to engage the family in the investigation and assessment process
• Gather the information required to identify the safety threats, child vulnerabilities, protective capacities, and ongoing risks of harm to the child
• Interview collateral contacts
• Visit the home
• Complete safety and risk assessments
• Make efforts to provide or arrange for services for the child and family during the investigation to enhance the family’s capacity to safely care for their child

At the time of initial contact with the parents, guardian, or alleged perpetrator, the caseworker shall inform him or her of the reported allegations in a manner consistent with laws protecting the rights of the reporter.

Timeframes for Completing Investigations

Citation: Admin. Code Tit. 8, § 10.3.17The caseworker shall complete the investigation within 45 days of accepting the report for investigation unless an extension is approved by the supervisor. Extensions are not to exceed an additional 30 days after the original 45 days have passed.

Classification of Reports

Citation: Admin. Code Tit. 8, § 10.3.17The caseworker shall complete the investigation and decide whether the report’s allegations of abuse or neglect are substantiated or unsubstantiated.

In a substantiated report, there is an allegation of child abuse or neglect in which a parent, guardian, foster parent, preadoptive parent, or treatment foster care parent has been identified as the perpetrator or as failing to protect the child, and credible evidence exists to support the investigation worker’s conclusion that the child has been abused or neglected, as defined in the Children’s Code. Credible evidence upon which to base a finding of substantiation may include, but is not limited to:

• A parent or guardian’s admission
• Physical evidence
• Collateral or witness statements and observations
• A child’s disclosure
• The investigation worker’s observation

In an unsubstantiated report, there is an allegation of child abuse or neglect in which the information collected during the investigation does not support a finding that the child was abused or neglected.

Current Through August 2015

Professionals Required to Report

Citation: Ann. Stat. § 32A-4-3Professionals required to report include:

• Physicians, residents, or interns
• Law enforcement officers or judges
• Nurses
• Teachers or school officials
• Social workers
• Members of the clergy

Reporting by Other Persons

Citation: Ann. Stat. § 32A-4-3Every person who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately.

Institutional Responsibility to Report

Not addressed in statutes reviewed.

Standards for Making a Report

Citation: Ann. Stat. § 32A-4-3A report is required when a person knows or has a reasonable suspicion that a child is abused or neglected.

Privileged Communications

Citation: Ann. Stat. §§ 32A-4-3; 32A-4-5A clergy member need not report any information that is privileged.

The report or its contents or any other facts related thereto or to the condition of the child who is the subject of the report shall not be excluded on the ground that the matter is or may be the subject of a physician-patient privilege or similar privilege or rule against disclosure.

Inclusion of Reporter’s Name in Report

Citation: Ann. Stat. § 32A-4-5The identity of the mandated reporter will be verified before any investigation is initiated.

Disclosure of Reporter Identity

Citation: Ann. Stat. § 32A-4-33Any release of information to a parent, guardian, or legal custodian shall not include identifying information about the reporter.

Current Through April 2015

Citation: Ann. Stat. § 30-6-1(I)-(J)Evidence that demonstrates that a child has been knowingly, intentionally, or negligently allowed to enter or remain in a motor vehicle, building, or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance shall be deemed prima facie evidence of abuse of the child.

Evidence that demonstrates that a child has been knowingly and intentionally exposed to the use of methamphetamine shall be deemed prima facie evidence of abuse of the child.

Current Through August 2014

Making The Appointment

Citation: Ann. Stat. § 32A-4-10At the inception of an abuse and neglect proceeding, the court shall appoint a guardian ad litem (GAL) for a child younger than age 14. If the child is age 14 or older, the court shall appoint an attorney for the child.

When a child reaches age 14, the child’s GAL shall continue as the child’s attorney. The court shall appoint a different attorney for the child if:

• The child requests a different attorney.
• The GAL requests to be removed.
• The court determines that the appointment of a different attorney is appropriate.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Ann. Stat. § 32A-1-4A court-appointed special advocate (CASA) is a person who, pursuant to the provisions of the Children’s Court Rules, assists the court in determining the best interests of the child by investigating the case and submitting a report to the court.

Qualifications/Training

Citation: Ann. Stat. §§ 32A-1-4; 32A-4-10; 32A-18-1A GAL shall be an attorney appointed by the Children’s Court to represent and protect the best interests of the child in a court proceeding. No party or employee or representative of a party to the proceeding shall be appointed to serve as a GAL.

No officer or employee of an agency that is vested with the legal custody of the child shall be appointed as GAL or attorney for the child. Only an attorney with appropriate experience shall be appointed as GAL of or attorney for the child.

When reasonable and appropriate, the court shall appoint a GAL or attorney who is knowledgeable about the child’s particular cultural background. Attorneys and attorney GALs may receive periodic training on a child’s psychological and physical development as well as the impact of ethnicity on the child’s needs.

Specific Duties

Citation: Ann. Stat. § 32A-1-7A GAL shall zealously represent the child’s best interests in the proceeding for which the GAL has been appointed and in any subsequent appeals. After consultation with the child, a GAL shall convey the child’s declared position to the court at every hearing. Unless a child’s circumstances render the following duties and responsibilities unreasonable, a GAL shall:

• Meet with and interview the child prior to custody hearings, adjudicatory hearings, dispositional hearings, judicial reviews, and any other hearings scheduled in accordance with the Children’s Code
• Communicate with health-care, mental health care, and other professionals involved with the child’s case
• Review medical and psychological reports relating to the child and the respondents
• Contact the child prior to any proposed change in the child’s placement
• Contact the child after changes in the child’s placement
• Attend local substitute care review board hearings concerning the child and, if unable to attend the hearings, forward to the board a letter setting forth the child’s status during the period since the last board review and include an assessment of the Children, Youth and Families Department’s permanency and treatment plans
• Report to the court on the child’s adjustment to placement, the department’s and respondent’s compliance with prior court orders and treatment plans, and the child’s degree of participation during visitations
• Represent and protect the cultural needs of the child

A GAL shall receive notices, pleadings, or other documents required to be provided to or served upon a party. A GAL may file motions and other pleadings and take other actions consistent with the GAL’s powers and duties.

How the Representative Is Compensated

Citation: Ann. Stat. § 32A-1-19Reasonable compensation for services and related expenses of a GAL or a child’s attorney shall be a charge upon the funds of the court upon their certification by the court.

The court may order the parent or other person legally obligated to care for and support a child to pay all or part of the costs and expenses of a GAL or attorney when:

• The child has been found to be an abused or neglected child.
• The parent or other person legally obligated to care for and support a child is given notice and a hearing to determine the parent or person’s financial ability to pay the costs and expenses.
• The court finds that the parent or person is able to pay all or part of the costs and expenses.

Unless otherwise ordered, payment shall be made to the court for remittance to those to whom compensation is due or, if costs and expenses have been paid by the court, to the court for remittance to the State. The court may prescribe the manner of payment.

Current Through April 2014

When Case Plans Are Required

Citation: Ann. Stat. § 32A-3B-15Prior to the dispositional hearing, a written family services plan must be prepared for submission to the court.

Who May Participate in the Case Planning Process

Citation: Ann. Stat. § 32A-3B-15The department shall prepare the family services plan. A copy of the plan shall be provided by the department to all parties at least 5 days before the dispositional hearing.

When the child is an Indian child, contact shall be made with the child’s Indian Tribe for the purpose of consultation and exchange of information, and the plan shall indicate the person contacted in the child’s Indian Tribe and the results of that contact.

Contents of a Case Plan

Ann. Stat. § 32A-3B-15The plan for family services shall contain the following information:

• A statement of the problem
• The needs of the child and the family
• A description of the specific progress needed to be made by both the parent and the child, the reasons why the plan is likely to be useful, the availability of any proposed services, and the department’s overall plan for ensuring that the services will be delivered
• If removal from the home or continued residence outside of the home is recommended for the child:
  • A statement of the likely harm the child will suffer as a result of removal from the home, including emotional harm resulting from separation from the child’s parents
  • A description of any previous efforts to work with the parent and the child in the home and a description of any in-home treatment programs that have been considered and rejected
  • A description of the steps that will be taken to minimize any harm to the child that may result if separation from the child’s parent occurs or continues
  • For a child age 16 or older, a description of the specific skills the child requires for successful transition into independent living as an adult, what programs are necessary to develop the skills, the reasons why the programs are likely to be useful, the availability of any proposed programs, and the department’s overall plan for ensuring that the child will be adequately prepared for adulthood

Current Through November 2012

Citation: N.M. Admin. Code § 8.10.8.7(G) (LexisNexis through 10-30-12)‘Concurrent plan’ means a second permanency plan in addition to a primary permanency plan of reunification.

Citation: N.M. Admin. Code § 8.26.2.7(L) (LexisNexis through 10-30-12)‘Concurrent plan’ refers to case planning and legal practices providing reunification services while simultaneously implementing an alternative case plan should the reunification efforts be unsuccessful.

Citation: N.M. Admin. Code § 8.10.8.20(G) (LexisNexis through 10-30-12)The department develops a concurrent plan when it is indicated by the concurrent plan assessment. Any of the approved permanency plan goals may be appropriate as a permanency goal for the concurrent plan. The concurrent plan is implemented concurrently with the permanency plan and becomes the treatment plan whenever the court determines this is in the child’s best interests.

Citation: N.M. Admin. Code § 8.10.8.8(D) (LexisNexis through 10-30-12)During the time that reasonable efforts are being made to reunify the child and family, the Children, Youth, and Families Department also may concurrently make reasonable efforts to finalize one of the other permanency plans (adoption, permanent guardianship, permanent placement with a fit and willing relative, or planned permanent living arrangement) for the child.

Current Through January 2016

Schedule of Hearings

Citation: Ann. Stat. §§ 32A-4-25; 32A-4-25.1An initial judicial review shall be conducted within 60 days of the disposition. Subsequent periodic reviews shall be conducted within 6 months of the permanency hearing and every 6 months thereafter.

A permanency hearing shall be held:

• Within 6 months of the initial judicial review or within 12 months of a child entering foster care, whichever occurs first
• Within 30 days of a determination that no reasonable efforts at reunification are required

Persons Entitled to Attend Hearings

Citation: Ann. Stat. § 32A-4-25The children’s court attorney shall give notice of any judicial review hearing to:

• All parties
• The child through the child’s guardian ad litem or attorney
• The child’s court-appointed special advocate
• A contractor administering the local substitute care review board
• The child’s foster parent or substitute care provider

At any judicial review hearing, the Children, Youth and Families Department; the child’s guardian ad litem or attorney; and all parties who have been given notice shall have the opportunity to present evidence and to cross-examine witnesses.

Determinations Made at Hearings

Citation: Ann. Stat. § 32A-4-25At the review hearing, the court shall determine:

• The extent to which the treatment plan has been implemented
• The extent of compliance with the treatment plan and whether progress is being made toward establishing a stable and permanent placement for the child
• For an Indian child, whether the placement preferences of the child’s Tribe were followed, and whether the child’s treatment plan provides for maintaining the child’s cultural ties

If the court adopts a permanency plan other than reunification, the court shall determine whether the department has made reasonable efforts to identify and locate all grandparents and other relatives. The court shall also determine whether the department has made reasonable efforts to conduct home studies on any appropriate relative expressing an interest in providing permanency for the child. The court must ensure that consideration has been given to the child’s familial identity and connections. If the court finds that reasonable efforts have not been made to identify or locate grandparents and other relatives or to conduct home studies on appropriate and willing relatives, the court shall schedule a permanency review within 60 days to determine whether an appropriate relative placement has been made.

Permanency Options

Citation: Ann. Stat. § 32A-4-25.1At the conclusion of the permanency hearing, the court shall order one of the following permanency plans for the child:

• Reunification
• Placement for adoption
• Placement with a permanent guardian
• Placement in the legal custody of the department with the child placed in the home of a fit and willing relative
• 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

Current Through March 2016

Citation: Ann. Stat. § 32A-1-3The Children’s Code shall be interpreted and construed to effectuate the following legislative purposes:

• First, to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this code, and then to preserve the unity of the family, whenever possible
• To provide judicial and other procedures through which the provisions of the Children’s Code are executed and enforced and in which the parties are assured a fair hearing, and their constitutional and other legal rights are recognized and enforced
• To provide a continuum of services for children and their families from prevention to treatment, considering, whenever possible, prevention, diversion, and early intervention, particularly in the schools
• To provide children with services that are sensitive to their cultural needs
• To provide for the cooperation and coordination of the civil and criminal systems for investigation, intervention, and disposition of cases, to minimize interagency conflicts and to enhance the coordinated response of all agencies to achieve the best interests of the child victim
• To provide continuity for children and families appearing before the family court by assuring that, whenever possible, a single judge hears all successive cases or proceedings involving a child or family

The child’s health and safety shall be the paramount concerns. Permanent separation of the child from the child’s family, however, would especially be considered when the child or another child of the parent has suffered permanent or severe injury or repeated abuse. It is the intent of the legislature that, to the maximum extent possible, children in New Mexico shall be reared as members of a family unit.

Citation: Ann. Stat. § 32A-4-28(A)In proceedings to terminate parental rights, the court shall give primary consideration to the physical, mental, and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated.

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Ann. Stat. §§ 32A-4-28; 32A-4-2The court shall terminate parental rights when:

• The child has been abandoned.
• The child has been neglected or abused, and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts to assist the parent in adjusting the conditions that render the parent unable to properly care for the child.
• The parent has subjected the child to aggravated circumstances.
• The child has been placed in the care of others, including care by other relatives, either by a court order or otherwise, and the following conditions exist:
  • The child has lived in the home of others for an extended period of time.
  • The parent-child relationship has disintegrated.
  • A psychological parent-child relationship has developed between the substitute family and the child.
  • If the court deems the child of sufficient capacity to express a preference, the child no longer prefers to live with the natural parent.
  • The substitute family desires to adopt the child.

‘Aggravated circumstances’ include circumstances in which the parent has:

• Attempted, conspired to cause, or caused great bodily harm to the child or great bodily harm or death to the child’s sibling
• Attempted, conspired to cause, or caused great bodily harm or death to another parent, guardian, or custodian of the child
• Attempted, conspired to subject, or subjected the child to torture, chronic abuse, or sexual abuse
• Had his or her parental rights over a sibling of the child terminated involuntarily

Circumstances That Are Exceptions to Termination of Parental Rights

Citation: Ann. Stat. § 32A-4-29The Children, Youth and Families Department shall file a motion to terminate parental rights when a child has been in the custody of the department for not less than 15 of the previous 22 months unless:

• A parent has made substantial progress toward eliminating the problem that caused the child’s placement in foster care, it is likely that the child will be able to safely return to the parent’s home within 3 months, and the child’s return to the parent’s home will be in the child’s best interests.
• The child has a close and positive relationship with a parent, and a permanent plan that does not include termination of parental rights will provide the most secure and appropriate placement for the child.
• The child is age 14 or older, is firmly opposed to termination of parental rights, and is likely to disrupt an attempt to place him with an adoptive family.
• A parent is terminally ill but in remission and does not want his or her parental rights to be terminated, and the parent has designated a guardian for his or her child.
• The child is not capable of functioning if placed in a family setting. In such a case, the court shall reevaluate the status of the child every 90 days unless there is a final court determination that the child cannot be placed in a family setting.
• Grounds do not exist for termination of parental rights.
• The child is an unaccompanied, refugee minor, and the situation regarding the child involves international legal issues or compelling foreign policy issues.
• Adoption is not an appropriate plan for the child.
• The parent’s incarceration or participation in a court-ordered residential substance abuse treatment program constitutes the primary factor in the child’s placement in substitute care, and termination of parental rights is not in the child’s best interests.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Current Through December 2014

Definitions

Citation: Ann. Stat. § 40-10B-3As used in the Kinship Guardianship Act:

• The term ‘caregiver’ means an adult, who is not a parent of a child, with whom a child resides and who provides that child with the care, maintenance, and supervision consistent with the duties and responsibilities of a parent of the child.
• The term ‘kinship’ means the relationship that exists between a child and a relative of the child, a godparent, a member of the child’s Tribe or clan, or an adult with whom the child has a significant bond.
• The term ‘relative’ means an individual related to a child as a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, any person denoted by the prefix ‘grand’ or ‘great,’ or the spouse or former spouse of the persons specified.

Purpose of Guardianship

Citation: Ann. Stat. §§ 40-10B-2; 32A-4-31It is the policy of the State that the interests of children are best served when they are raised by their parents. When neither parent is able or willing to provide appropriate care, guidance, and supervision to a child, it is the policy of the State that, whenever possible, a child should be raised by family members or kinship caregivers.

The Kinship Guardianship Act is intended to address those cases where a parent has left a child or children in the care of another for 90 consecutive days and that arrangement leaves the child or children without appropriate care, guidance, or supervision. The purposes of the Kinship Guardianship Act are to:

• Establish procedures to effect a legal relationship between a child and a kinship caregiver when the child is not residing with either parent
• Provide a child with a stable and consistent relationship with a kinship caregiver that will enable the child to develop physically, mentally, and emotionally to the maximum extent possible, when the child’s parents are not willing or able to provide appropriate care

The court may establish a permanent guardianship between a child and the guardian when the prospective guardianship is in the child’s best interests and when:

• The child has been adjudicated as an abused or neglected child.
• The Children, Youth and Families Department has made reasonable efforts to reunite the parent and child, and further efforts by the department would be unproductive.
• Reunification of the parent and child is not in the child’s best interests because the parent continues to be unwilling or unable to properly care for the child.
• The likelihood of the child being adopted is remote, or it is established that termination of parental rights is not in the child’s best interests.

A Guardian’s Rights and Responsibilities

Citation: Ann. Stat. § 40-10B-13A guardian appointed for a child pursuant to the Kinship Guardianship Act has the legal rights and duties of a parent, except the right to consent to adoption of the child and except for parental rights and duties that the court orders retained by a parent.

Unless otherwise ordered by the court, a guardian appointed pursuant to the Kinship Guardianship Act has authority to make all decisions regarding visitation between a parent and the child.

Qualifying the Guardian

This issue is not addressed in the statutes and regulations reviewed.

Procedures for Establishing Guardianship

Citation: Ann. Stat. §§ 32A-4-31; 32A-4-32; 40-10B-5; 40-10B-8In proceedings for permanent guardianship, the court shall give primary consideration to the physical, mental, and emotional welfare and needs of the child.

Any adult, including a relative or foster parent, may be considered as a permanent guardian, provided that if the child is in the legal custody of the department, the department grants consent to the guardianship. The court shall appoint a person nominated by the child, if the child is age 14 or older, unless the court finds the appointment contrary to the best interests of the child.

A motion for permanent guardianship may be filed by any party. A petition seeking the appointment of a guardian pursuant to the Kinship Guardianship Act may be filed only by:

• A kinship caregiver
• A caregiver who is age 21 or older, with whom no kinship with the child exists, and who has been nominated to be guardian of the child by the child who age 14 or older
• A caregiver designated formally or informally by a parent

A guardian may be appointed pursuant to the Kinship Guardianship Act only if:

• A parent of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn.
• A parent of the child is living, but all parental rights in regard to the child have been terminated or suspended by prior court order.
• The child has resided with the petitioner without the parent for a period of 90 days or more immediately preceding the date the petition is filed, and a parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance, and supervision for the child or there are extraordinary circumstances.
• No guardian of the child is currently appointed pursuant to the Uniform Probate Code.

Contents of a Guardianship Order

Citation: Ann. Stat. §§ 40-10B-13; 32A-4-32A certified copy of the court order appointing a guardian pursuant to the Kinship Guardianship Act shall be satisfactory proof of the authority of the guardian, and letters of guardianship need not be issued.

A judgment of the court vesting permanent guardianship with an individual divests the biological or adoptive parent of legal custody or guardianship of the child, but is not a termination of the parent’s rights. A child’s inheritance rights from and through the child’s biological or adoptive parents are not affected by this proceeding.

Upon a finding that grounds exist for a permanent guardianship, the court may incorporate into the final order provisions for visitation with the natural parents, siblings, or other relatives of the child and any other provision necessary to rehabilitate the child or provide for the child’s continuing safety and well-being.

Modification/Revocation of Guardianship

Citation: Ann. Stat. §§ 40-10B-12; 32A-4-32
Any person, including a child who has reached his or her 14th birthday, may move for revocation of a guardianship created pursuant to the Kinship Guardianship Act. The person requesting revocation shall attach to the motion a transition plan proposed to facilitate the reintegration of the child into the home of a parent or a new guardian. A transition plan shall take into consideration the child’s age, development, and any bond with the guardian.

If the court finds that a preponderance of the evidence proves a change in circumstances and the revocation is in the best interests of the child, it shall grant the motion and:

• Adopt a transition plan proposed by a party or the child’s guardian ad litem
• Propose and adopt its own transition plan
• Order the parties to develop a transition plan by consensus, if they will agree to do so

The court shall retain jurisdiction to enforce its judgment of permanent guardianship. Any party may make a motion for revocation of the order granting guardianship when there is a significant change of circumstances, including:

• The child’s parent is able and willing to properly care for the child.
• The child’s guardian is unable to properly care for the child.

The court shall appoint a guardian ad litem for the child in all proceedings for the revocation of permanent guardianship if the child is under age 14. The court shall appoint an attorney for the child in all proceedings for the revocation of permanent guardianship if the child is age 14 or older at the inception of the proceedings.

The court may revoke the order granting guardianship when a significant change of circumstances has been proven by clear and convincing evidence and it is in the child’s best interests to revoke the order granting guardianship.

Eligibility for Guardianship Subsidy

This issue is not addressed in the statutes and regulations reviewed.

Links to Agency Policies

Kinship guardianship is not addressed in regulation or agency policy.

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Citation: Ann. Stat. §§ 32A-4-21; 32A-4-27; 32A-4-31; 32A-4-9; 40-10B-3Prior to holding a dispositional hearing, the court shall direct that a predisposition study and report be submitted in writing to the court by the department. The predisposition study shall determine:

• Whether the child has a family member who, subsequent to study by the department, is determined to be qualified to care for the child
• If the child is an Indian child, whether the placement preferences set forth in the Federal Indian Child Welfare Act of 1978 [25 U.S.C. § 1901, et seq.] 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

A relative within the fifth degree of relation or a stepparent with whom the child has resided may petition to be a party at any stage of a child abuse or neglect proceeding.

Any adult, including a relative or foster parent, may be considered as a permanent guardian, provided that the Children, Youth and Families Department grants consent to the guardianship if the child is in the legal custody of the department. In any foster care or preadoptive placement of an Indian child, preference shall be given, in the absence of good cause to the contrary, to a placement with a member of the Indian child’s extended family.

For the Kinship Guardianship Act:

• The term ‘kinship’ means the relationship that exists between a child and a relative of the child, a godparent, a member of the child’s Tribe or clan, or an adult with whom the child has a significant bond.
• The term ‘relative’ means an individual related to a child as a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, any person denoted by the prefix ‘grand’ or ‘great,’ or the spouse or former spouse of the persons specified.

Requirements for Placement with Relatives

Citation: Ann. Stat. §§ 32A-4-31; 40-10B-8; Admin. Code § 8.8.3.9In proceedings for permanent guardianship, the court shall give primary consideration to the physical, mental, and emotional welfare and needs of the child.

A guardian may be appointed pursuant to the Kinship Guardianship Act only if one of the following is true:

• A parent of the child is living and has consented in writing to the appointment of a guardian and the consent has not been withdrawn.
• A parent of the child is living, but all parental rights in regard to the child have been terminated or suspended by prior court order.
• The child has resided with the petitioner without the parent for a period of 90 days or more, and the parent having legal custody of the child is currently unwilling or unable to provide adequate care, maintenance, and supervision for the child.

In regulation: Regulations regarding background checks do not apply to foster grandparent volunteers or relative care providers who are not otherwise required to be licensed or registered.

Requirements for Placement of Siblings

Citation: Ann. Stat. § 32A-4-22At the conclusion of the dispositional hearing, the court shall make and include in the dispositional judgment its findings on 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 visiting rights or other ongoing interaction, unless such visits or other ongoing interaction would be contrary to the safety or well-being of any of the siblings.

The court may order reasonable visits 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 interests if the court finds the visits to be in the child’s best interests.

Relatives Who May Adopt

Citation: Ann. Stat. § 32A-5-12Any relative within the fifth degree of relation to the child or that relative’s spouse may seek to adopt the child.

Requirements for Adoption by Relatives

Citation: Ann. Stat. §§ 32A-5-14; 32A-5-12; 32A-15-3The child must have lived with the relative or the relative’s spouse for at least 1 year prior to the filing of the petition.

Unless directed by the court, a preplacement study is not required in cases in which a child is being adopted by a stepparent, relative, or person named in the child’s deceased parent’s will.

Nationwide criminal history record checks shall be conducted on all prospective foster or adoptive parents and other adult relatives and nonrelatives residing in the prospective foster or adoptive parent’s household.

Current Through March 2016

What Are Reasonable Efforts

Citation: Ann. Stat. § 32A-4-21Reasonable efforts may include:

• An intervention plan designed to achieve placement of the child in the least restrictive setting available, consistent with the best interests and special needs of the child, including a statement of the likely harm the child may suffer as a result of being removed from the parents’ home, including emotional harm that may result due to separation from the child’s parents, and a statement of how the intervention plan is designed to place the child in close proximity to the parents’ home without causing harm to the child due to separation from parents, siblings, or any other person who may significantly affect the child’s best interests
• Services offered to the child, his or her family, and the foster care family

When Reasonable Efforts Are Required

Citation: Ann. Stat. § 32A-4-22Reasonable efforts shall be made:

• To prevent the removal of the child from the child’s family
• To reunite the child with the child’s family
• 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
• For siblings not jointly placed, to provide 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
• To implement and finalize the permanency plan in a timely manner when reasonable efforts to reunify are not required

When Reasonable Efforts Are NOT Required

Citation: Ann. Stat. §§ 32A-4-2; 32A-4-22Reasonable efforts are not required when:

• The efforts would be futile.
• The parent has subjected the child to aggravated circumstances.

Aggravated circumstances are those in which the parent, guardian, or custodian has:

• Attempted, conspired to cause, or caused great bodily harm to the child or great bodily harm or death to the child’s sibling
• Attempted, conspired to cause, or caused great bodily harm or death to another parent, guardian, or custodian of the child
• Attempted, conspired to subject, or has subjected the child to torture, chronic abuse, or sexual abuse
• Had parental rights over a sibling of the child terminated involuntarily

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation:This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

Citation:This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

Citation:This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

Citation:
This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

Citation:This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

Citation:This issue is not addressed in the statutes reviewed.