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N.M. Admin. Code tit. 8 § 10.7
CODE
OF NEW MEXICO RULES
TITLE
8. SOCIAL SERVICES
CHAPTER
10. CHILD PROTECTIVE SERVICES
PART
7. CHILD PROTECTIVE LEGAL SERVICES
All new rules, amendments, and repeals effective prior to May 1, 2006.
8.10.7.
CHILD PROTECTIVE LEGAL SERVICES
8.10.7.1
ISSUING AGENCY:
Children, Youth and Families Department, Protective Services.
[8.10.7.1 NMAC - Rp, 8.10.7.1 NMAC, 11/15/05]
8.10.7.2
SCOPE:
Protective services employees and the general public.
[8.10.7.2 NMAC - Rp, 8.10.7.2 NMAC, 11/15/05]
8.10.7.3
STATUTORY AUTHORITY:
Adoption Assistance and Child Welfare Act of 1980,
P.L. 96-272; New Mexico Children's Code, Section 32A-1-1, NMSA 1978
(Repl. 2004); Indian Child Welfare Act of 1978, P.L. 95-608;
New Mexico Children's Court Rules SCRA 10-1 et seq.
[8.10.7.3
NMAC - Rp, 8.10.7.3 NMAC, 11/15/05]
8.10.7.4
DURATION:
Permanent.
[8.10.7.4
NMAC - Rp, 8.10.7.4 NMAC, 11/15/05]
8.10.7.5
EFFECTIVE DATE:
November 15, 2005, unless a later date is cited at
the end of a section.
[8.10.7.5
NMAC - Rp, 8.10.7.5 NMAC, 11/15/05]
8.10.7.6
OBJECTIVE:
To establish parameters for the provision of legal services for
children at significant risk of abuse and/or neglect and children
in the custody of CYFD.
[8.10.7.6 NMAC - Rp, 8.10.7.6 NMAC, 11/15/05]
8.10.7.7
DEFINITIONS:
A.
'Abandoned infant'
means a child assessed to be under the age of
one year who has been left by the parent without
provision for the child's identification for a period of fourteen
days, or who has been left with others, including the
other parent or an agency, without provisions for support and
without communication for a period of 3 months.
B.
'Adjudication hearing'
is the hearing that occurs within sixty days of service
on the respondents and is the hearing at which the
Court determines whether the child is abused or neglected.
C.
'Affidavit' means
a sworn statement of facts and accompanies the petition for
an ex-parte order. It is signed by any person who
either has personal knowledge of the facts or has been
informed of them and believes them to be true.
D.
'Best interest of the child'
is the standard that reflects the protection of the child
from abuse and neglect. In motions to terminate parental rights
and for permanent guardianship cases, the term encompasses stability and
permanency in placement.
E.
'Children's court attorneys'
are the attorneys who have been given the authority and
the responsibility to represent CYFD in child abuse and neglect
and family in need of services proceedings.
F.
'Child's attorney'
refers to the attorney appointed by the court to represent
the child who is 14 years of age or older.
G.
'Compelling reasons'
means the reasons and/or circumstances which necessitate CYFD's determination that
the filing of a motion for termination of parental rights
is not in a child's best interest and/or the reason
a permanency plan of 'planned permanent living arrangement' is the
most appropriate plan for the child.
H.
'Consent decree'
means a plea of no contest by the respondent to
the allegations in the petition and an agreement to participate
in a court ordered six month treatment plan with subsequent
dismissal of the petition with prejudice.
I.
'Custodian'
refers to an adult with whom the child lives who
is not a parent or guardian.
J.
'Custody'
means legal custody as defined by statute.
K.
'Date child enters foster care'
means the earlier of 60 days from the date of
removal of the child or the date of the adjudication
of child abuse or neglect.
L.
'Disposition'
means the court hearing which establishes custody and where the
court may adopt a treatment plan for the child and
family.
M.
'Emergency custody'
exists when a child is removed from the parent's home
based upon a determination by law enforcement that the child
is in need of protective
custody or based upon an ex parte custody order.
N.
'Ex parte custody order'
is an order issued by the court pursuant to an
ex parte affidavit that grants emergency custody to CYFD.
O.
'Family in need of court ordered services'
refers to the Family in Need of Court Ordered Services
Act whereby services are provided through court intervention when voluntary
services have been exhausted in recognition of the fact that
in many instances of truancy and running away by a
child the situation is symptomatic of a family in need
of services where the child and parent are unable to
share a residence
P.
'Guardian ad litem'
is appointed by the court to represent and protect the
best interests of the child in a neglect and abuse
proceeding when the child is less than 14 years old.
Q.
'Indian child'
refers to an unmarried person who is (1) under the
age of eighteen years old; (2) a member of an
Indian tribe or is eligible for membership in an Indian
tribe; and (3) the biological child of a member of
an Indian tribe.
R.
'Infant'
means a child less than one year of age.
S.
'Legal custody'
means a legal status created by [the] order of the
court or other court of competent jurisdiction or by operation
of statute that vests in a person, department or agency
the right to determine where and with whom a child
shall live; the right and duty to protect, train and
discipline the child
and to provide the child with food, shelter, personal care,
education and ordinary and emergency medical care; the right to
consent to major medical, psychiatric, psychological and surgical treatment and
to the administration of legally prescribed psychotropic medications pursuant to
the Children's Mental Health and Developmental Disabilities Act; and the
right to consent to the child's enlistment in the armed
forces of the United States.
T.
'New Mexico Children's Code'
refers to Section 32A-1-1, et. seq., NMSA 1978.
U.
'Party'
in a neglect and abuse proceeding is any individual named
in the petition or subsequently granted that status in the
case by the court.
V.
'Periodic review'
is a court hearing where the court reviews the treatment
plan and may modify the treatment plan or adopt a
new treatment plan.
W.
'Permanency hearing'
is a court hearing where the court reviews the progress
made in the case, determines the permanency plan for the
child and creates orders to expedite the achievement of permanency
for the child.
X.
'Permanency review hearing'
is a court hearing where the court reviews the transition
plan adopted when a reunification plan is ordered at the
permanency hearing.
Y.
'Petition' means
the document filed with the court setting forth the allegations
of abuse and/or neglect and relief sought.
Z.
'Reasonable medical judgment'
means a medical judgment that would be made by
a reasonably prudent physician, knowledgeable about the case and treatment
possibilities with respect to the medical conditions involved.
AA.
'Respondent'
refers to a parent, guardian or custodian of a child
named in an abuse and neglect proceeding.
BB.
Settlement'
is an admission or a plea of no contest by
the respondent to the allegations in the petition.
CC.
'10-day custody hearing'
is the hearing at which the court determines if probable
cause exists for the child to remain in CYFD's custody
pending adjudication.
DD.
'Treatment issues'
include placement decisions, permanency planning goals, and treatment recommendations.
EE.
'Trial home visit'
means the period of time, not to exceed 60 months,
in which a child with a plan of reunification resides
with the parent or guardian while services are provided to
the child and family to address risk factors and ensure
safety of the child.
FF.
'Use immunity'
means that the in-court testimony, statements made in the course
of court ordered psychological evaluation or treatment program, records, documents
or other physical objects produced by an immunized respondent shall
not be used against that respondent in a criminal prosecution.
GG.
'Withholding medically indicated treatment'
means the failure to respond to
an infant's life-threatening condition by providing treatment which, in the
treating physician's reasonable medical judgment, will be most likely to
be effective in ameliorating or correcting all such conditions.
[8.10.7.7 NMAC - Rp, 8.10.7.7 NMAC, 11/15/05]
8.10.7.8
PURPOSE OF CPS LEGAL SERVICES:
The purpose of child protective legal services is to (1)
represent CYFD's position in court with regard to the permanency
plans for children, and (2) protect children through legal intervention
and to facilitate permanency in relevant cases.
[8.10.7.8 NMAC - Rp, 8.10.7.8 NMAC, 11/15/05]
8.10.7.9
ROLE OF THE CHILDREN'S COURT ATTORNEY:
The children's court attorney provides information, interpretation of law and
general assistance to CYFD in the provision of child protective
services and presents CYFD's recommendations in a court of law.
[8.10.7.9 NMAC - Rp, 8.10.7.9 NMAC, 11/15/05]
8.10.7.10
DIFFERENCES OF OPINION:
When the children's court attorney, CYFD worker and supervisor cannot
agree on the most appropriate course of action, the
issues will be resolved between the managing children's court attorney
and county office manager. The protective services director is the
final arbiter in a decision.
[8.10.7.10, NMAC - Rp, 8.10.7.10 NMAC, 11/15/05]
8.10.7.11
DECISION TO APPEAL COURT DECISION:
When a court rules against CYFD on a significant issue,
the children's court attorney initiates a discussion with CYFD to
determine if an appeal should be taken.
[8.10.7.11 NMAC - Rp, 8.10.7.11 NMAC, 11/15/05]
8.10.7.12
GENERAL PROVISIONS
A.
Attorney-client relationship: The primary decision-maker on the case is the
CYFD worker for the purpose of the attorney-client relationship.
B.
Attorney-client privileged communications: Written and verbal communications concerning CYFD business
between a children's court attorney and a CYFD employee in
anticipation of litigation or concerning on-going litigation is privileged. Privileged
communication may not be disclosed to a third party without
appropriate permission or by order of the court.
C.
Confidentiality/access to records: Protective services records and information incident to
or obtained as a result of a neglect and abuse
investigation or proceeding are confidential and can only be inspected
pursuant to a valid court order except by those entities
specifically entitled to access under the New Mexico Children's Code.
(1)
When allowing access to an authorized entity, all attorney-client privileged
information and all identifying information on the reporting source is
stricken.
(2)
Protective services records or information are not released pursuant to
a subpoena because subpoenas do not reflect a court determination
of legitimate interest in the case or the work of
the court.
D.
Child support: CYFD makes a report for collection of child
support to child support enforcement division on all children in
custody.
E.
Parent's rights: All mothers and all fathers who are married
to the child's mother have a constitutional liberty interest in
rearing the child. Additionally, those unmarried fathers who avail themselves
of the opportunity to parent have a similar constitutional liberty
interest.
(1)
At the inception of the case, CYFD identifies those parents
with protected rights.
(2)
At the inception of the case, CYFD makes efforts to
locate all parents and all relatives who might be a
resource to the child.
F.
Best interest of the child is the standard used by
CYFD to make decisions regarding planning and managing child protective
services cases.
G.
Change of venue/transfer of legal cases: A motion to change
venue is not initiated absent approval of the sending and
receiving county protective services offices. Venue is not to be
changed on cases where a consent decree has been entered
or adjudication has not occurred.
H.
Custody: Legal custody includes the right to place a child.
If CYFD has legal custody, the court can only order
a specific placement when CYFD has failed in implementing any
material provision in the treatment plan or abused its discretion
in the placement or proposed placement of a child.
I.
Home studies in domestic relations cases: There is no legal
authority for courts to order CYFD to conduct home studies
in New Mexico domestic relations cases to which CYFD is
not a party.
(1)
Orders to conduct home studies in New Mexico domestic relations
cases are resisted.
(2)
CYFD responds to the request as an abuse/neglect report, and
screens and investigates in accordance with protective services policy.
[8.10.7.12 NMAC - Rp, 8.10.7.12 NMAC, 11/15/05]
8.10.7.13
PROCEDURAL PRINCIPLES
A.
CYFD complies with the provisions of the New Mexico Children's
Code and the children's court rules.
B.
Protective custody given to CYFD by law enforcement cannot be
extended.
C.
Allegation of abuse/neglect must be made for each individual named
as a respondent in a petition. To perfect CYFD's custody,
both parents should be named as respondents. If CYFD has
no allegations as to one parent, that parent will generally
receive custody.
D.
A father who does not have parental rights to the
child can be excluded from the petition.
E.
A custodian may be named as a respondent.
F.
If abuse or neglect can be proven as to only
one child and CYFD makes the decision that other siblings
in the household are at risk and should be placed
in CYFD custody, the children's court attorney utilizes New Mexico
case law to seek custody of at-risk children.
G.
A hearing on custody pending adjudicatory hearing must be held
within ten working days of the filing of the petition.
H.
An adjudicatory trial is held in regard to the abuse/neglect
of each parent. The time frame will run separately based
on the respective dates of service on each parent.
I.
Parties cannot extend the time frame for 'commencing' the adjudicatory
hearing by agreement. CYFD seeks an extension from the supreme
court if the adjudicatory
hearing cannot be timely held.
J.
Prior to the adjudicatory hearing and permanency hearing, CYFD meets
with the other parties and attempts to settle issues attendant
to the hearing and proposed treatment plan that serves the
child's best interest.
K.
In the case of a child who is removed from
the home:
(1)
In the first court ruling that sanctions the removal of
a child from the home, CYFD seeks a judicial determination
that continuing in the home would be contrary to the
child's welfare, or that placement would be in the best
interest of the child.
(2)
CYFD seeks to obtain, within 60 days from the date
the child is removed, a judicial determination that reasonable efforts
were made, or were not required, to prevent removal. Instances
in which reasonable efforts are not required are set forth
herein at Subsection C of 8.10.7.18 NMAC.
(3)
If feasible, both judicial determinations may be sought simultaneously.
L.
In those cases where a child will remain in voluntary
foster care longer than 180 days, the CYFD seeks to
obtain a judicial determination prior to the 180th
day, that the child's placement in voluntary foster care is
in the best interest of the child.
[8.10.7.13 NMAC - Rp, 8.10.7.13 NMAC, 11/15/05]
8.10.7.14
SETTLEMENT
A.
Settlement of a sex abuse case at the adjudicatory stage
involves a stipulation (admission or no contest) as to the
case specific underlying factual basis of the sex abuse. In
most cases, a stipulation to neglect or physical abuse is
unacceptable based on treatment issues and protection of other potential
victims. The managing children's court attorney approves any exceptions.
B.
Consent Decrees are not favored and only used after consultation
with the managing attorney.
[8.10.7.14 NMAC - Rp, 8.10.7.14 NMAC, 11/15/05]
8.10.7.15
INFORMING PARENTS AND RESPONDENTS OF THEIR RIGHTS
A.
CYFD informs parents of their rights at the commencement of
the investigation.
B.
The court informs the respondent of his/her rights at the
respondent's first appearance. Under Rule 10-304, those rights include:
(1)
notice of the allegations of the petition;
(2)
the right to trial on the petition;
(3)
the right to be represented by an attorney; and
(4)
the possible consequences if the allegations of the petition are
found to
be true.
[8.10.7.15 NMAC - Rp, 8.10.7.15 NMAC, 11/15/05]
8.10.7.16
EXTENSION OF CUSTODY:
A judgment granting custody to CYFD remains in force for
an indeterminate period not to exceed two years. If custody
is required to protect the child, CYFD requests an extension
of custody prior to the expiration.
[8.10.7.16 NMAC - Rp, 8.10.7.16 NMAC, 11/15/05]
8.10.7.17
APPOINTMENT OF GUARDIAN AD LITEM (GAL) OR CHILD'S ATTORNEY:
CYFD requests that a GAL be appointed to represent and
protect the best interests of the child in a neglect
and abuse proceeding when the child is less than 14
years old. CYFD requests that an attorney be appointed to
represent the child 14 years of age or older.
[8.10.7.17 NMAC - Rp, 8.10.7.17 NMAC, 11/15/05]
8.10.7.18
LITIGATION CONSIDERATIONS
A.
CYFD makes reasonable efforts to prevent removal of the child
and, when removal
is necessary, CYFD makes reasonable efforts to reunify the child
and to finalize the child's current permanency plan.
B.
Protection and the best interest of the child are of
paramount concern, followed by the treatment needs of the family.
C.
Reasonable efforts to prevent a child's removal from home or
to reunify the child and family are not required if
CYFD obtains a judicial determination that such efforts are not
required because:
(1)
a court of competent jurisdiction has determined that the parent
has subjected the child to aggravated circumstances as set forth
in the New Mexico Children's Code; or
(2)
the parent or custodian has been convicted, by a court
of competent jurisdiction, of murder or voluntary manslaughter of another
child of the parent, or of aiding or abetting, attempting,
conspiring, or soliciting to commit such a murder or voluntary
manslaughter, or convicted of a felony assault that results in
serious bodily injury to the child or another child of
the parent.
D.
No conversations concerning settlement or disposition occur in the absence
of counsel for CYFD.
(1)
Direct contact between CYFD workers and respondent's counsel is limited
to the exchange of routine information, such as, time for
visitation, name of psychologist to perform evaluation, etc.
(2)
CYFD routinely informs the guardian ad litem or child's attorney
about important decisions relating to the child.
E.
CYFD spares children the trauma of testifying except when determined
necessary by CYFD to protect the child's safety and best
interest.
F.
CYFD pursues obtaining use immunity when CYFD's reunification efforts may
conflict with a criminal prosecution.
G.
The CYFD worker is CYFD's primary witness on treatment issues.
Psychological expertise is used only when issues of mental illness,
developmental disabilities, personality disorders or children's behavior disorders appear in
a given case.
H.
In a case where a parent has a recognizable mental
or physical disability, CYFD shows how services provided were designed
to address the disability within the context of the parenting
plan.
I.
CYFD files requests so as to obtain timely judicial determinations
J.
CYFD seeks to obtain judicial determinations that are made on
a case-by-case basis, and in which the court states the
specific reasons for its determination.
[8.10.7.18 NMAC - Rp, 8.10.7.18 NMAC, 11/15/05]
8.10.7.19
DOCUMENTATION TO COURT:
CYFD completes and provides reports to the court and other
parties as required by law. The children's court attorney provides
documentation and evidence so that the court may make specific
factual findings in determinations of reasonable efforts to prevent removal,
reasonable efforts not required to prevent removal, and reasonable efforts
to finalize the permanency plan in effect. The children's court
attorney documents to the court the compelling reasons for seeking
placement in the legal custody of CYFD under a planned
permanent living arrangement as the child's permanency plan when CYFD
has considered reunification, adoption, permanent guardianship, or placement with a
fit and willing relative, and has concluded that these are
not the most appropriate permanent plans for the child.
[8.10.7.19 NMAC - Rp, 8.10.7.19 NMAC, 11/15/05]
8.10.7.20
WITHHOLDING MEDICALLY INDICATED TREATMENT
A.
CYFD takes necessary legal action to protect handicapped infants and
other children who have been continuously hospitalized since birth, who
were born extremely premature or who have a long-term disability
when reports of withholding medically indicated treatment are received.
B.
The term 'infant' and the reference to less than one
year of age shall not be construed to imply that
treatment should be changed or discontinued when an infant reaches
one year of age, or to affect or limit existing
protection available
under state law regarding medical neglect of children over one
year of age.
C.
The term withholding medically indicated treatment does not apply in
the following circumstances:
(1)
the infant is chronically and irreversibly comatose;
(2)
the provision of such treatment would merely prolong dying or
otherwise be futile in terms of the survival of the
infant; or
(3)
the provision of such treatment would be virtually futile in
terms of survival of the infant and the treatment itself
under such circumstances would be inhumane.
[8.10.7.20 NMAC - Rp, 8.10.7.20 NMAC, 11/15/05]
8.10.7.21
REMOVING CHILD FROM LIFE SUPPORT SYSTEMS
A.
CYFD seeks parental consent to the removal of a child
from life support systems.
B.
When parental consent is denied due to the parent's concern
of possible escalation of related criminal charges, the children's court
attorney request an emergency court setting on the issue and
give notice to the parents.
C.
CYFD keeps the GAL fully informed and seeks concurrence with
CYFD's recommendation.
[8.10.7.21 NMAC - Rp, 8.10.7.21 NMAC, 11/15/05]
8.10.7.22
TERMINATION OF PARENTAL RIGHTS
A.
The children's court attorney attends the change of plan staffing
when CYFD is considering recommending to the court that a
child's plan be changed to adoption and/or termination of parental
rights.
B.
CYFD pursues motions to terminate parental rights when the child's
plan is adoption, or when it is clinically indicated.
C.
In the case of a child who has been in
foster care 15 of the most recent 22 months, CYFD
pursues a motion to terminate parental rights by the end
of the 15th month in foster care, unless the child
is being cared for by a relative, or CYFD has
documented compelling reason(s) for not filing; or CYFD has not
provided to the family those services deemed necessary for the
safe return of the child within the time period in
the case plan. CYFD calculates the 15 of the most
recent 22 month period from the date the child entered
foster care, uses a cumulative method of calculation when a
child experiences multiple exits from and entries into foster care
during the 22 month period, and excludes trial home visits
and runaway episodes in calculating the 15 months. If there
are compelling reasons for not seeking to terminate parental rights,
those reasons must be documented in the case plan.
D.
In the case of a child less than one year
old, CYFD pursues a motion to terminate parental rights within
60 days of the judicial determination that the child has
been abandoned. If there are compelling reasons for not seeking
to terminate parental rights, those reasons must be documented in
the case plan.
E.
In a case where there has been a judicial determination
that reasonable efforts to reunify the child with the parent
are not required for the reasons specified in Paragraph (2)
of Subsection C of 8.10.7.18 NMAC, CYFD pursues a motion
to terminate parental rights within 60 days of that judicial
determination. If there are compelling reasons for not seeking to
terminate parental rights, those reasons must be documented in the
case plan.
F.
Biological fathers who participate in the child's life have a
protected liberty interest and must be accorded all of the
notice and reasonable efforts protection of the New Mexico Children's
Code. Those biological fathers who do not participate in the
child's life have no protected liberty interest and are not
entitled to notice of the protections offered under the New
Mexico Children's Code.
G.
CYFD attempts to obtain a sworn statement from the mother
on the identity of the father, or places the mother
on the stand and asks questions concerning the father's identity.
H.
CYFD checks the putative father registry if the mother does
not identify any
person as the father.
[8.10.7.22 NMAC - Rp, 8.10.7.22 NMAC, 11/15/05]
8.10.7.23
RELINQUISHMENT OF PARENTAL RIGHTS
A.
Relinquishments are only taken in furtherance of a plan of
adoption or in cases where a severance of the parent-child
relationship is therapeutically necessary for the child's emotional or physical
well-being.
B.
The children's court attorney creates a record in the district
court that the relinquishment is voluntary, no promises were made
to the parent, no fraud was involved, the parent understands
the consequences and finality of the decision, and unless the
adoption is open, the court will not enforce any agreements
regarding contact with the child.
C.
No one can relinquish parental rights to CYFD without CYFD's
consent.
D.
In any case involving an Indian child, the relinquishment can
only be taken in state court if the parent is
domiciled off-reservation. Otherwise, the tribal court would have exclusive jurisdiction.
(1)
CYFD makes a record concerning the parent's domicile prior to
the relinquishment being taken.
(2)
CYFD does not accept the relinquishment on an Indian children
until ten days after the birth of the child.
E.
CYFD accepts conditional relinquishments in the following situations:
(1)
the relinquishing parent(s) designates an adoptive parent(s) whose homestudy has
been approved;
(2)
the relinquishment contemplates the termination of parental rights of the
other parent; and/or
(3)
ongoing contact in some form will occur up to the
point of adoption finalization; conditions which contemplate contact beyond finalization
of the adoption cannot be included, unless pursuant to an
open adoption agreement.
[8.10.7.23 NMAC - Rp, 8.10.7.23 NMAC, 11/15/05]
8.10.7.24
PERMANENT GUARDIANSHIP:
CYFD can move the court for an order establishing a
permanent guardianship for the child.
[8.10.7.24 NMAC - Rp, 8.10.7.24 NMAC, 11/15/05]
8.10.7.25
MENTAL HEALTH:
Anytime a child in the custody of CYFD is in
need of placement in a mental health facility, the children's
court attorney files an appropriate pleading with the district court.
[8.10.7.25 NMAC - Rp, 8.10.7.25 NMAC, 11/15/05]
8.10.7.26
FAMILY IN NEED OF COURT ORDERED SERVICES:
CYFD decides when it is appropriate to file a family
in need of court ordered services petition.
[8.10.7.26 NMAC - Rp, 8.10.7.26 NMAC, 11/15/05]
8.10.7.27
INDIAN CHILD WELFARE ACT (ICWA):
The Indian Child Welfare Act of 1978 (25 U.S.C. 1901
et seq.), hereinafter referred to as 'ICWA', was enacted to
protect the best interests of Indian children and preserve tribal
integrity by reducing the destruction of Indian culture caused by
the removal of children from Indian homes and environments. The
ICWA provides that the states and Indian tribes are authorized
to enter into agreements with each other respecting care and
custody of Indian children.
A.
A tribe has exclusive jurisdiction over any child custody proceedings,
as defined in 25 U.S.C. 1903, involving a child who
resides or is domiciled within the tribe's reservation.
B.
If a child is a ward of the tribal court,
the tribe retains exclusive jurisdiction even if the child's residence
changes to a location off-reservation. CYFD acts in an emergency
to protect the child, when the child is temporarily off-reservation.
CYFD notifies the tribe as soon as possible and facilitates
a transfer of the case to the tribe.
C.
When a child is domiciled or resides off the reservation,
the state and the tribe both have jurisdiction.
D.
When an Indian child is the subject of an abuse/neglect,
family in need of court ordered services, or adoption action
under the New Mexico Children's Code, the tribe may intervene.
E.
CYFD supports requests to transfer to tribal court absent good
cause to the contrary, objection by either parent or declination
by the tribal court. Good cause not to transfer the
proceeding may exist in any of the following circumstances:
(1)
The proceeding was at an advanced stage when the request
to transfer was received and the entity making the request
did not file the request promptly after receiving notice of
the hearing.
(2)
The Indian child is over twelve years of age and
objects to the transfer.
(3)
The evidence necessary to decide the case could not be
adequately presented in the tribal court without undue hardship to
the parties or the witnesses.
(4)
The parents of a child over five years of age
are not available and the child has had little or
no contact with the child's tribe or members of the
child's tribe.
F.
CYFD receives and investigates reports of child abuse and/or neglect
in conformance
with ICWA and as outlined in CYFD policy on intake
and investigations.
G.
CYFD conforms to the placement preferences set forth in ICWA
and as outlined in CYFD policy on permanency planning.
H.
CYFD honors the request of a parent of an Indian
child to remain anonymous insofar as it relates to the
parent's extended family. CYFD notifies the tribe as required by
the ICWA and explains to the parent that anonymity cannot
be guaranteed.
[8.10.7.27 NMAC - Rp, 8.10.7.27 NMAC, 11/15/05]
8.10.7.28
SPECIAL IMMIGRANT JUVENILE STATUS:
If a child in the custody of CYFD is not
a legal alien, CYFD applies with the INS to have
the child declared a 'special immigrant juvenile' when the child's
permanency plan is adoption, and it is in the child's
best interests not to be returned to his/her country of
origin.
[8.10.7.28 NMAC - Rp, 8.10.7.28 NMAC, 11/15/05]
8.10.7.29
EXPERT WITNESSES
A.
CYFD gives the children's court attorney advance notice of all
witnesses, expert
or otherwise, to be called to allow sufficient time to
secure subpoenas and service by the sheriff's department.
B.
CYFD reimburses for expert testimony, time and travel.
(1)
The managing attorney approves the expert witness services before they
are rendered.
(2)
CYFD has payment guidelines that are followed except in areas
of the state where lower rates may be negotiated. Regional
attorneys may approve higher rates under exceptional circumstances, budget permitting.
[8.10.7.29 NMAC - Rp, 8.10.7.29 NMAC, 11/15/05]
8.10.7.30
PERMANENCY HEARING REQUIREMENTS
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 from the date a child enters foster
care, whichever occurs first.
B.
If the court adopts a permanency plan of reunification at
the permanency hearing, the court shall adopt a plan for
transitioning the child home and schedule a permanency review hearing
within three months. If a child is reunified, the subsequent
hearing may be vacated.
C.
The court shall hold permanency hearings every twelve months when
a child is in the legal custody of CYFD.
D.
CYFD provides the foster parent(s) of a child and any
preadoptive parent(s) or relative(s) providing care for the child with
timely notice of and an opportunity to be heard in
permanency hearings and permanency review hearings. The notice and opportunity
to be heard do not include the right to standing
as a party to the case.
[8.10.7.30 NMAC - Rp, 8.10.7.30 NMAC, 11/15/05]
8.10.7.31
NOTICE AND OPPORTUNITY TO BE HEARD AT REVIEWS:
CYFD gives notice to all parties, the child's guardian ad
litem or attorney if 14 years or older, the child's
CASA, the contractor administering the citizen review board (see the
New Mexico Children's Code), the child's foster parents, preadoptive parents,
or relative caregiver, of the time, place and purpose of
any judicial review hearing held pursuant to NMSA Section 32A-4-25(A)
or (B) of the New Mexico Children's Code, including hearings
held after a termination of parental rights has occurred. Review
hearings are held with in six months of the dispositional
hearing or termination of parental rights and every six months
until the child's adoption or reunification.
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