Resources - A Practical Guide to the Indian Child Welfare Act; Native American Rights Fund

N.M. Stat. § 32A-3B-19

New Mexico Statutes

Chapter 32A. Children's Code

Article 3B. Family in Need of Court-ordered Services

§ 32A-3B-19. Periodic review of dispositional judgments

A. Within six months of any original dispositional order and within six months of any subsequent continuation of the order, the department shall petition the court for a review of the disposition of the family in need of court-ordered services order. The review may be carried out by either of the following:

(1) a judicial review hearing conducted by the court; or

(2) a judicial review hearing conducted by a special master; provided, however, that the court approve any findings made by the special master.

B. The children's court attorney shall give twenty days' written notice to all parties of the time, place and purpose of any judicial review hearing held pursuant to Subsection A of this section.

C. At any judicial review hearing held pursuant to Subsection A of this section, the department and all persons given notice of the judicial review shall have the opportunity to present evidence and to cross-examine witnesses. At the hearing, the department shall not only show that it has made reasonable effort to implement the plan for family services approved by the court in its dispositional order, but shall also present an updated plan for any period of extension of the dispositional order. The parent, guardian or custodian of the child shall demonstrate to the court the family's effort to comply with the plan for family services approved by the court in its dispositional order and, if applicable, that the family's effort to maintain contact with the child was diligent and made in good faith, given the family's circumstances and abilities.

D. The Rules of Evidence shall not apply to hearings held pursuant to this section.

E. At the conclusion of any hearing held pursuant to this section, the court shall make findings of fact and conclusions of law.

F. The court shall determine, during a review of a dispositional or continuation order, whether the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the child's Indian tribe have been followed and whether the child's treatment plan provides for maintaining the child's cultural ties. When placement preferences have not been incorporated into an order, good cause for noncompliance shall be clearly stated and supported.

G. Based on its findings, the court shall order one or more of the following dispositions:

(1) permit the child to remain with the child's parent, guardian or custodian, subject to conditions and limitations the court may prescribe, including protective supervision of the child by the department;

(2) return the child to his parents and place the child under the protective supervision of the department;

(3) transfer or continue legal custody of the child to:

(a) the department, subject to the provisions of Paragraph (6) of this subsection;

(b) a relative or other individual who, after study by the department or other agency designated by the court, is found by the court to be qualified to receive and care for the child with protective supervision by the department; or

(4) dismiss the action and return the child to the child's parent without supervision;

(5) continue the child in the legal custody of the department with or without any required parental involvement in a treatment plan;

(6) make additional orders regarding the treatment plan or placement of the child to protect the child's best interests, if the court determines the department has failed in implementing any material provision of the treatment plan or abused its discretion in the placement or proposed placement of the child;

(7) if at any judicial review the court finds that the child's parent, guardian or custodian has not complied with the court-ordered treatment plan, the court may order the child's parent, guardian or custodian to show cause why he should not be held in contempt of court and subject to sanctions;

(8) provide for a culturally appropriate treatment plan, access to cultural practices and traditional treatment for an Indian child;

(9) direct the department to show cause why an abuse or neglect action has not been filed; or

(10) if the local education agency has been made a party, direct the local education agency to show cause why it has not met the child's educational needs.

H. Dispositional orders entered pursuant to this section shall remain in force for a period of six months.

L. 1993, Ch. 77, § 91; L. 1995, Ch. 206, § 21, eff. July 1, 1995.