How To Get Your Children Back In Juvenile or Family Court
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The legal definition of ‘Harm’:
Harm means any injury, loss or damage. It can also be any material or tangible detriment. There are different types of harm like accidental harm-where the injury or damage is not caused by a tortious act; bodily harm-where there is some physical pain, illness, or impairment to the body.
FEDERAL DEFINITION OF CHILD ABUSE AND NEGLECT
Federal legislation provides guidance to States by identifying a minimum set of acts or behaviors that define child abuse and neglect. The Federal Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C.A. § 5106g), as amended by the CAPTA Reauthorization Act of 2010, defines child abuse and neglect as, at minimum:
- “Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation”; or
- “An act or failure to act which presents an imminent risk of serious harm.”
This definition of child abuse and neglect refers specifically to parents and other caregivers. A “child” under this definition generally means a person who is younger than age 18 or who is not an emancipated minor.
While CAPTA provides definitions for sexual abuse and the special cases of neglect related to withholding or failing to provide medically indicated treatment, it does not provide specific definitions for other types of maltreatment such as physical abuse, neglect, or emotional abuse. While Federal legislation sets minimum standards for States that accept CAPTA funding, each State provides its own definitions of maltreatment within civil and criminal statutes.
Did you notice that Federal law states that in order for the state to take your child/ren…..the harm must have been SERIOUS or the harm coming soon must be SERIOUS. The minimum harm done, or will be done to your child/ren MUST be SERIOUS.
New Mexico State Definitions of Child Abuse and Neglect
Current Through February 2016
Physical Abuse
‘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
‘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
The 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
The 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
Responsible persons include the child’s parent, guardian, or custodian.
Exceptions
Nothing 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.
Definitions of Domestic Violence
Current Through August 2017
Defined in Domestic Violence Civil Laws
The term ‘domestic abuse’ includes the following:
- 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 any of the following:
- 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
This issue is not addressed in the statutes reviewed.
Defined in Criminal Laws
‘Assault against a household member’ consists of any of the following:
- 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 any of the following:
- 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
In civil law: ‘Household member’ means any of the following:
- 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 any of the following:
- 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.
Child Witnesses to Domestic Violence
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.
Parental Drug Use as Child Abuse
Current Through April 2015
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.