HB0051

HOUSE BILL 51

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Nora Espinoza

AN ACT

RELATING TO CHILD WELFARE; AMENDING SECTIONS OF THE CHILDREN'S CODE TO ESTABLISH PREFERENCE AND NOTICE REQUIREMENTS FOR A CHILD'S RELATIVES UPON REMOVAL AND PLACEMENT OF THE CHILD.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 32A-1-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 13, as amended) is amended to read:

"32A-1-4. DEFINITIONS.--As used in the Children's Code: A. "adult" means a person who is eighteen years of age or older;

B. "child" means a person who is less than eighteen years old;

C. "court", when used without further qualification, means the children's court division of the district court and includes the judge, special master or commissioner appointed pursuant to the provisions of the Children's Code or supreme court rule;

D. "court-appointed special advocate" or "CASA" means a person appointed as a CASA, pursuant to the provisions of the Children's Court Rules, who assists the court in determining the best interests of the child by investigating the case and submitting a report to the court;

E. "custodian" means an adult with whom the child lives who is not a parent or guardian of the child;

F. "department" means the children, youth and families department, unless otherwise specified;

G. "disproportionate minority contact" means the involvement of a racial or ethnic group with the criminal or juvenile justice system at a proportion either higher or lower than that group's proportion in the general population;

H. "foster parent" means a person, including a relative of the child, licensed or certified by the department or a child placement agency to provide care for children in the custody of the department or agency;

I. "guardian" means a person appointed as a guardian by a court or Indian tribal authority or a person authorized to care for the child by a parental power of attorney as permitted by law;

J. "guardian ad litem" means an attorney appointed by the children's court to represent and protect the best interests of the child in a court proceeding; provided that no party or employee or representative of a party to the proceeding shall be appointed to serve as a guardian ad litem;

K. "Indian child" means an unmarried person who is:

(1) less than 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;

L. "Indian child's tribe" means:

(1) the Indian tribe in which an Indian child is a member or eligible for membership; or

(2) in the case of an Indian child who is a member or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has more significant contacts;

M. "Indian tribe" means a federally recognized Indian tribe, community or group pursuant to 25 U.S.C. Section 1903(1);

N. "judge", when used without further qualification, means the judge of the court;

O. "legal custody" means a legal status created by 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;

P. "parent" or "parents" includes a biological or adoptive parent if the biological or adoptive parent has a constitutionally protected liberty interest in the care and custody of the child;

Q. "permanency plan" means a determination by the court that the child's interest will be served best by:

(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;

R. "person" means an individual or any other form of entity recognized by law;

S. "preadoptive parent" means a person with whom a child has been placed for adoption;

T. "protective supervision" means the right to visit the child in the home where the child is residing, inspect the home, transport the child to court-ordered diagnostic examinations and evaluations and obtain information and records concerning the child;

U. "relative" means an individual, other than a custodial parent, related to a child by at least a fifth degree of kinship by blood or adoption;

[U.] V. "reunification" means either a return of the child to the parent or to the home from which the child was removed or a return to the noncustodial parent;

[V.] W. "tribal court" means:

(1) a court established and operated pursuant to a code or custom of an Indian tribe; or

(2) any administrative body of an Indian tribe that is vested with judicial authority;

[W.] X. "tribal court order" means a document issued by a tribal court that is signed by an appropriate authority, including a judge, governor or tribal council member, and that orders an action that is within the tribal court's jurisdiction; and

[X.] Y. "tribunal" means any judicial forum other than the court."

SECTION 2. Section 32A-3B-5 NMSA 1978 (being Laws 1993, Chapter 77, Section 77, as amended) is amended to read:

"32A-3B-5. NOTIFICATION TO FAMILY--RELEASE FROM PROTECTIVE CUSTODY.--

A. When the department takes a child into protective custody and the child is not released to the child's parent, guardian or custodian, the department shall provide written notice as soon as possible, and in no case later than twenty-four hours, to the child's parent, guardian or custodian, with a statement of the reasons for taking the child into protective custody.

B. When the department releases a child placed in protective custody to the family, the department shall refer the family for voluntary family services.

C. When the department releases a child from protective custody and the child's parent, guardian or custodian refuses to allow the child to return home, the department shall file a petition pursuant to the provisions of the Abuse and Neglect Act.

D. If the department is not releasing the child to the parent, guardian or custodian within two days, the department shall notify [the tribe if the child is an Indian child]:

(1) a relative of the child; and

(2) if the child is an Indian child, the child's tribe or tribes."

SECTION 3. Section 32A-3B-6 NMSA 1978 (being Laws 1993, Chapter 77, Section 78) is amended to read:

"32A-3B-6. PLACE OF CUSTODY--PREFERENCE.--

A. Unless a child from a family in need of services who has been placed in department custody is also alleged or adjudicated delinquent, the child shall not be held in a jail or other facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged to be delinquent children [but may be placed in the following community-based shelter-care facilities].

B. The department shall give preference to the placement of a child from a family in need of services who has been placed in department custody in the home of a relative of the child if:

(1) the relative provides the court with a sworn statement that the relative will not return the child to the dangerous surroundings that prompted protective custody for the child;

(2) the relative meets all required child protection standards, including the following requirements:

(a) the relative does not have a pending charge, past conviction or plea of guilty or nolo contendere for family or domestic violence; and

(b) there is no true finding of child maltreatment by that relative in the child maltreatment central registry; and

(3) it is in the best interests of the child to be placed with the relative.

C. In the event that the department cannot locate for placement of a child any relative of the child, the department may place the child in one of the following community-based shelter facilities:

[A.] (1) a licensed foster-care home or any home authorized under the law for the provision of foster care or group care or use as a protective residence;

[B.] (2) a facility operated by a licensed child welfare services agency; or

[C.] (3) a facility provided for in the Children's Shelter Care Act [or

D. in a home of a relative of the child, when the relative provides the court with a sworn statement that the relative will not return the child to the dangerous surroundings that prompted protective custody for the child]."

SECTION 4. Section 32A-3B-6.1 NMSA 1978 (being Laws 2005, Chapter 189, Section 37, as amended) is amended to read:

"32A-3B-6.1. INDIAN CHILD PLACEMENT--PREFERENCES.--

A. An Indian child accepted [in] into department custody shall be placed in the least restrictive setting that most closely approximates a family in which the child's special needs, if any, may be met. The Indian child shall be placed within reasonable proximity to the child's home, taking into account any special needs of the child. Preference shall be given to placement with [(1)] a relative, as defined in Subsection U of Section 32A-1-4 NMSA 1978, or other member of the Indian child's extended family.

B. In the event that the department cannot locate for placement of an Indian child a relative or member of the Indian child's extended family, the department shall give preference to placing the child in one of the following:

[(2)] (1) a foster care home licensed, approved and specified by the Indian child's tribe;

[(3)] (2) an Indian foster care home licensed or approved by an authorized non-Indian licensing authority; or

[(4)] (3) an institution for children approved by the Indian child's tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs.

[B.] C. When the placement preferences set forth in Subsection A or B of this section are not followed or if the Indian child is placed in an institution, a plan shall be developed to ensure that the Indian child's cultural ties are protected and fostered."

SECTION 5. Section 32A-4-8 NMSA 1978 (being Laws 1993, Chapter 77, Section 102) is amended to read:

"32A-4-8. PLACE OF TEMPORARY CUSTODY--PREFERENCE.--

A. Unless a child alleged to be neglected or abused is also alleged or adjudicated delinquent, the child shall not be held in a jail or other facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged to be delinquent children

[but may be placed in the following community-based shelter- care facilities:

A. with a relative of the child who is willing to guarantee to the court that the child will not be returned to the alleged abusive or neglectful parent, guardian or custodian without the prior approval of the court].

B. The department shall give preference to the placement of a child in the home of a relative of the child if:

(1) the relative provides the court with a sworn statement that the child will not be returned to the alleged abusive or neglectful parent, guardian or custodian without the prior approval of the court;

(2) the relative meets all required child protection standards, including the following requirements:

(a) the relative does not have a pending charge, past conviction or plea of guilty or nolo contendere for family or domestic violence; and

(b) there is no true finding of child maltreatment by that relative in the child maltreatment central registry; and

(3) it is in the best interests of the child to be placed with the relative.

C. In the event that the department cannot locate for placement of a child any relative of the child, the department may place the child in one of the following community-based shelter facilities:

[B.] (1) a licensed foster home or any home authorized under the law for the provision of foster care or group care or use as a protective residence;

[C.] (2) a facility operated by a licensed child welfare services agency; or

[D.] (3) a facility provided for in the Children's Shelter Care Act."

SECTION 6. Section 32A-4-9 NMSA 1978 (being Laws 1993, Chapter 77, Section 103) is amended to read:

"32A-4-9. INDIAN CHILD PLACEMENT--PREFERENCES.--

A. An Indian child accepted for foster care or pre-adoptive placement shall be placed in the least restrictive setting that most closely approximates a family in which [his] the child's special needs, if any, may be met. The Indian child shall also be placed within reasonable proximity to the Indian child's home, taking into account any special needs of the Indian child. In any foster care or pre-adoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with [(1)] a relative of the child, as defined in Subsection U of Section 32A-1-4 NMSA 1978 or with a member of the Indian child's extended family.

[(2)] (1) a foster care home licensed, approved and specified by the Indian child's tribe;

[(3)] (2) an Indian foster care home licensed or approved by an authorized non-Indian licensing authority; or

[(4)] (3) an institution for children approved by the Indian child's tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs.

- 12 -