SENATE BILL 48
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Steve Komadina
AN ACT
RELATING TO THE CHILDREN'S CODE; PROVIDING TRANSITIONAL SUPPORT FOR FOSTER YOUTH WHILE IN THE CUSTODY OF THE STATE; EXPANDING DEFINITIONS; AMENDING AND ENACTING SECTIONS OF THE ABUSE AND NEGLECT ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 32A-4-2 NMSA 1978 (being Laws 1993, Chapter 77, Section 96, as amended) is amended to read:
"32A-4-2. DEFINITIONS.--As used in the Abuse and Neglect Act:
A. "abandonment" includes instances when the parent, without justifiable cause:
(1) left the child without provision for the child's identification for a period of fourteen days; or
(2) left the child with others, including the other parent or an agency, without provision for support and without communication for a period of:
(a) three months if the child was under six years of age at the commencement of the three-month period; or
(b) six months if the child was over six years of age at the commencement of the six-month period;
B. "abused child" means a child:
(1) who has suffered or who is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian or custodian;
(2) who has suffered physical abuse, emotional abuse or psychological abuse inflicted or caused by the child's parent, guardian or custodian;
(3) who has suffered sexual abuse or sexual exploitation inflicted by the child's parent, guardian or custodian;
(4) 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; or
(5) whose parent, guardian or custodian has knowingly or intentionally tortured, cruelly confined or cruelly punished the child;
C. "aggravated circumstances" [include] includes those circumstances in which the parent, guardian or custodian has:
(1) attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child's sibling;
(2) attempted, conspired to cause or caused great bodily harm or death to another parent, guardian or custodian of the child;
(3) attempted, conspired to subject or has subjected the child to torture, chronic abuse or sexual abuse; or
(4) had [his] parental rights over a sibling of the child terminated involuntarily;
D. "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 [any] a member or organ of the body;
E. "neglected child" means a child:
(1) who has been abandoned by the child's parent, guardian or custodian;
(2) 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 the failure or refusal of the parent, guardian or custodian, when able to do so, to provide them;
(3) 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;
(4) whose parent, guardian or custodian is unable to discharge [his] that person's responsibilities to and for the child because of incarceration, hospitalization or physical or mental disorder or incapacity; or
(5) who has been placed for care or adoption in violation of the law; provided that 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 within the meaning of the Children's Code; and further provided that no child shall be denied the protection afforded to all children under the Children's Code;
F. "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:
(1) there is not a justifiable explanation for the condition or death;
(2) the explanation given for the condition is at variance with the degree or nature of the condition;
(3) the explanation given for the death is at variance with the nature of the death; or
(4) circumstances indicate that the condition or death may not be the product of an accidental occurrence;
G. "sexual abuse" includes [but is not limited to] criminal sexual contact, incest [or] and criminal sexual penetration, as those acts are defined by state law; [and]
H. "sexual exploitation" includes [but is not limited to]:
(1) allowing, permitting or encouraging a child to engage in prostitution;
(2) allowing, permitting, encouraging or engaging a child in obscene or pornographic photographing; [or] and
(3) filming or depicting a child for obscene or pornographic commercial purposes, as those acts are defined by state law;
I. "transition living plan" means an individualized written plan that is reasonably calculated to provide adequate support and maintenance to a person, based on the unique needs of the person, and that must be reasonably calculated to increase independent living skills that will enable the person to be as self-sufficient as possible; and
J. "transitional living services" means services that help a person arrange for adult living, including gaining access to food, clothing, housing, vocational, educational, medical and mental health services. "Transitional living services" includes:
(1) identification of programs and services appropriate for the person's needs;
(2) help in obtaining the identified programs or services;
(3) coordination of delivery of services when multiple providers or programs are involved in the provision of care;
(4) reassessment to ensure that the services obtained are necessary and appropriate in meeting the person's needs; and
(5) determination of whether additional services are warranted."
Section 2. Section 32A-4-25.1 NMSA 1978 (being Laws 1997, Chapter 34, Section 8, as amended) is amended to read:
"32A-4-25.1. PERMANENCY HEARINGS--PERMANENCY REVIEW HEARINGS.--
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 of a child entering foster care pursuant to Subsection E of this section, whichever occurs first. Prior to the initial permanency hearing, all parties to the hearing shall attend a mandatory meeting and attempt to settle issues attendant to the permanency hearing and develop a proposed treatment plan that serves the child's best interest. Prior to the initial permanency hearing, the department shall submit a progress report regarding the child to the local substitute care review board for that judicial district. The local substitute care review board may review the child's dispositional order, any continuation of that order and the department's progress report and report its findings and recommendations to the court.
B. At the permanency hearing, all parties shall have the opportunity to present evidence and to cross-examine witnesses. At the conclusion of the permanency hearing, the court shall order one of the following permanency plans for the child:
(1) reunification;
(2) placement for adoption after the parents' rights have been relinquished or terminated or after a motion has been filed to terminate parental rights;
(3) placement with a person who will be the child's permanent guardian;
(4) placement in the legal custody of the department with the child placed in the home of a fit and willing relative; or
(5) 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.
C. If the court adopts a permanency plan of reunification, the court shall adopt a plan for transitioning the child home and schedule a permanency review hearing within three months. If the child is reunified, the subsequent hearing may be vacated.
D. At the permanency review hearing, all parties and the child's guardian ad litem or attorney shall have the opportunity to present evidence and cross-examine witnesses. Based on the evidence, the court shall:
(1) change the plan from reunification to one of the alternative plans provided in Subsection B of this section;
(2) dismiss the case and return custody of the child to [his] the child's parent, guardian or custodian; or
(3) return the child to the custody of [his] the child's parent, guardian or custodian, subject to any conditions or limitations as the court may prescribe, including protective supervision of the child by the department and continuation of the treatment plan for not more than six months, after which the case shall be dismissed. The department may seek removal of a child from the home by obtaining an order in the pending case or by seeking emergency removal under Section 32A-4-6 NMSA 1978 during the period of protective supervision if the child's best interest requires such action. When a child is removed in this situation, a permanency hearing shall be scheduled within thirty days of the child coming back into the department's legal custody.
E. The court shall hold a permanency hearing and adopt a permanency plan for a child within twelve months of the child entering foster care. For purposes of this section, a child shall be considered to have entered foster care on the earlier of:
(1) the date of the first judicial finding that the child has been abused or neglected; or
(2) sixty days after the date on which the child was removed from the home.
F. The court shall hold permanency hearings every twelve months when a child is in the legal custody of the department.
G. Prior to the first permanency hearing after the child turns fourteen years of age, the department shall meet with the child, the child's surrogate parent, appointed pursuant to the federal Individuals With Disabilities Education Act, or other educational decision-maker recognized by the child's school district, the child's court attorney and staff from the child's school to develop an educational next-step plan. The educational plan shall be based on the individual needs of the child and must be reasonably calculated to support the child's identified post-secondary goals, including vocational goals. The educational plan shall be reviewed at the first permanency hearing after the child turns fourteen years of age. Based on its review, the court may either adopt the educational plan or may order the department to convene another planning meeting to revise the educational plan. The educational plan will be reviewed at every subsequent permanency hearing.
H. At the permanency hearing prior to the child turning seventeen years of age, the court shall inform the child of the child's eligibility for transitional living services and for a transition living plan.
[G.] I. The children's court attorney shall give notice to all parties, the child's guardian ad litem, the child's CASA, a contractor administering the local substitute care review board and the child's foster parent or substitute care provider of the time, place and purpose of any permanency hearing or permanency review hearing held pursuant to this section.
[H.] J. The rules of evidence shall not apply to permanency hearings. The court may admit testimony by any person given notice of the permanency hearing who has information about the status of the child or the status of the treatment plan. All testimony shall be subject to
cross-examination."
Section 3. A new section of the Abuse and Neglect Act is enacted to read:
"[NEW MATERIAL] TRANSITION SERVICES.--
A. Prior to a child reaching seventeen years of age, the department shall meet with the child, the child's attorney and other individuals of the child's choosing to develop a transition living plan. In developing the plan, the department shall assist the child to identify and plan how to meet the child's needs for services and supports after the child leaves state custody, including the areas of:
(1) housing;
(2) education;
(3) employment;
(4) health; and
(5) mental health.
B. The child will be assisted to direct the process of developing a transition living plan. The transition living plan must be reasonably calculated to provide adequate support and maintenance for the child based upon the unique needs for the child and must be reasonably calculated to increase independent living skills that will enable the child to be as self-sufficient as possible.
C. The department shall draft a proposed transition living plan based upon the child's stated preferences. The department will provide the proposed transition living plan to the child and the child's attorney within ten days of the meeting to develop the plan. If the child, after opportunity for consultation with the child's attorney, agrees in writing to the plan by signing the plan, the department will file the child's plan with the court as part of the child's proposed transition living plan.
D. In the event the child wishes to contest all or part of the plan proposed by the department, the child may either request a transition living plan review hearing or raise the child's concern with the plan at the next regularly scheduled judicial review hearing. At the conclusion of the hearing regarding the transition living plan, the court shall, based on its findings, order the implementation of a transition living plan. The court may order the transition living plan proposed by the department or make additional modifications of the transition living plan that the court determines appropriate to provide for the support and maintenance needed by the child.
E. The court will review the department's implementation of the transition living plan approved by the court, whether by agreement of the parties or after a contested hearing, at every subsequent judicial review hearing. The child may also request a special hearing for enforcement or modification of the plan.
F. At least ninety days before the child reaches eighteen years of age, the department will convene a planning meeting with the child, the child's attorney and other individuals of the child's choosing to review the implementation of the transition living plan. Within ten days of the meeting, the department will report to the court its assessment of the implementation of the plan.
G. The court may not terminate jurisdiction over a child who has been in the custody of the department, either by emancipation or the child reaching the age of majority, until the department:
(1) ensures that the child is present in court for a review of the implementation of the transition living plan, unless the child decides not to appear in court. If the child does not appear, the department shall document its efforts to locate the child and to provide the child transportation to the hearing; and
(2) verifies in writing that the following information, documents and services have been provided to the child:
(a) written information concerning the child's case, including the child's family history, the child's placement history, the whereabouts of any sibling under the jurisdiction of the juvenile court, unless the court determines that the sibling contact would jeopardize the safety or welfare of the sibling, instructions on how to access the documents the child is entitled to inspect and the date on which the jurisdiction of the court would be terminated;
(b) if applicable, the child's social security card, certified birth certificate, health and education summary, state-issued identification card, death certificate of the parent and proof of citizenship or residence;
(c) assistance in obtaining medicaid, unless ineligible; assistance in obtaining other health insurance; assistance in obtaining all other public benefits to which the child, as an adult, may be entitled; referral to transitional housing, if available; or assistance in securing other housing and assistance in obtaining employment or other financial support;
(d) assistance in applying for admission to a post-secondary institution, vocational training program or other educational institution and assistance in obtaining appropriate financial aid;
(e) assistance in maintaining relationships with individuals who are important to the child who has been in an out-of-home placement in a group home for six months or longer from the date the child entered foster care, based on the child's best interests; and
(f) assistance in arranging for a guardianship or limited guardianship if the child is incapacitated due to disability to the degree that the child cannot adequately give or withhold informed consent for treatment or other important decisions regarding the child's health or safety.
H. If the court finds that the department has not met all the requirements of Paragraph (2) of Subsection G of this section, and that termination of jurisdiction could be harmful to the best interests of the child, the court shall continue to exercise its jurisdiction until it finds the department has met all the requirements of Paragraph (2) of Subsection G of this section, unless the child knowingly and voluntarily informs the court that the child waives the child's right to implementation of the transition living plan and elects to have the case dismissed.
I. The children's court division of the district court shall develop and adopt the standards and appropriate forms necessary to implement this section."
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