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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.

[8.10.7.31 NMAC - Rp, 8.10.7.31 NMAC, 11/15/05]

HISTORY OF 8.10.7 NMAC:

Pre-NMAC History:

Material in this part was derived from that previously filed with the State Records Center and Archives under:

SSD Rule #410.0000, Protective Services to Children, filed 11/10/81;

SSD 4.0.0, Child Protective Services - Definition and Goal Statement, filed 8/22/86;

SSD 4.0.0, Child Protective Services - Definition and Goal Statement, filed 3/28/89;

SSD 4.1.0, Child Protective Services - General Provisions, filed 8/22/86;

SSD 4.1.0, Child Protective Services - General Provisions, filed 1/29/87;

SSD 4.1.0, Child Protective Services - General Provisions, filed 6/18/87;

SSD 4.1.0, Child Protective Services - General Provisions, filed 3/28/89;

SSD 4.1.0, Child Protective Services - General Provisions, filed 9/14/89;

SSD 4.1.0, Child Protective Services - General Provisions, filed 9/18/90;

SSD 4.2.0, Child Protective Services - General Guidelines, filed 8/22/86;

SSD 4.2.0, Child Protective Services - General Guidelines, filed 3/28/89;

SSD 4.3.0, Child Protective Services - Department Responsibilities, filed 8/22/86;

SSD 4.3.0, Child Protective Services - Department Responsibilities, filed 11/18/87;

SSD 4.3.0, Child Protective Services - Department Responsibilities, filed 6/13/88;

SSD 4.3.0, Child Protective Services - Department Responsibilities, filed 3/28/89;

SSD 4.3.0, Child Protective Services - Department Responsibilities, filed 3/20/90;

SSD 4.3.0, Child Protective Services - Department Responsibilities, filed 9/18/90.

History of Repealed Material:

8 NMAC 10.7, Child Protective Legal Services - Repealed, 2/14/01.

8.10.7 NMAC, Child Protective Legal Services - Repealed 11/15/05.

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