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SPONSOR: |
Ogle |
DATE TYPED: |
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HB |
811 |
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SHORT TITLE: |
Amend Abuse and Neglect Act |
SB |
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ANALYST: |
Maloy |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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|
|
NFI |
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See Narrative |
Recurring |
General
Fund |
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|
|
|
|
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(Parenthesis
( ) Indicate Expenditure Decreases)
Responses
Received From
Children,
Youth and Families Department
Department
of Health
Office
of Indian Affairs
Administrative
Offices of the Courts
Office
of the Attorney General
SUMMARY
Synopsis
of Bill
House Bill 811 adds a
new provision to the neglect and abuse law relating to the termination of
parental rights in those instances where the parent is incarcerated, or
otherwise unavailable, for a period of 18 months or longer. The new provision outlines the factors a
court is to take into consideration in determining whether the parental rights
should be terminated and the child permanently placed with another. The factors include:
1.
the age of the child;
2.
the extent to which the parent – child
relationship had been developed;
3.
the suitability of the parent’s nominees
for guardianship or adoption;
4.
the developmental and permanency needs of
the child; and
5.
the
period of time the parent needs after parole or probation to establish a stable
home for the child.
The bill also
specifically allows the parent to nominate relatives, or other persons, as
guardians or adoptive parents. The bill
requires the nomination be submitted within 30 days of the filing of the
termination of parental rights motion.
Finally, the bill
deletes current language stating that CYFD shall not file or join a motion
filed to terminate parental rights on the sole basis that the parent is
incarcerated.
Significant Issues
It is the
understanding of LFC that funding has been granted to
There are numerous
bills coming before the Legislature for consideration this session that change the Children’s
Code. Given the complexity of issues contributing to, and arising from,
juvenile crime, and the many effects that changes to the system and code may
have, the Legislature may find it helpful to wait on any significant Children’s
Code legislation until the Council has completed its study and
recommendations.
FISCAL IMPLICATIONS
There are no direct
fiscal implications for the state.
However, secondary costs will be associated with the CYFD and the
court’s handling of nominations, and the investigations and hearings regarding
adequacy of the nominee(s). These costs
will be recurring. It is anticipated
that such costs can be absorbed into existing staff and budget resources.
However, CYFD has noted that the investigations required under this law will be
extensive, complex and time consuming.
OTHER SUBSTANTIVE
ISSUES
The CYFD analysis sets
forth the following substantive issues:
·
The goals of the Abuse and Neglect Act
would not be assisted by the addition of the proposed
language. This bill is inconsistent with
existing statutes and case law on the issues of parent incarceration,
termination of parental rights, guardianship and adoption. There are potential constitutional issues, as
discussed below.
·
The bill states that CYFD must
investigate the suitability of parent-nominated guardians or adoptive parent
within 60 days of a probable cause finding. This proposed investigation is
premature if there has not yet been an adjudication of the abuse and/or neglect
charges. A probable cause finding is not
an adjudication.
It simply begins the process that may lead to final adjudication. And,
at all times prior to final adjudication of the abuse and neglect issues, CYFD
is still evaluating whether a child should be returned to his home. The proposed processes are out of
order.
Also, a full home study is necessary for CYFD to
reach an appropriate conclusion about the suitability of nominated guardian(s)
or adoptive parent candidate. Such home studies presently take more than 60
days, and are not automatically conducted on any
person named by a parent who has abused and/or neglected their child. If such parents had the best interests of
their child at heart, the child would not have been abused or neglected and the
parent would not be facing termination or his or her parental rights.
·
The bill refers to a child who "has
been abused or neglected” but proposes to eliminate the phrase "as defined
in the Abuse and Neglect Act".
This gives the court the ability to create its own definition of abuse
and neglect on a case- by-case basis, which has considerable risk for
inconsistency in application and constitutional challenges.
·
The bill refers to a parent who is
"otherwise unavailable" without defining the specific meaning of this
term. It is unclear if this may include parents with a mental illness, and
raises potential issues regarding the need for revised standards for Termination
of Parental Rights (TPR) actions. This
is the subject of existing case law.
·
Section B (4) of the bill requires the
court to consider the suitability of nominated guardians or adoptive parents
as a factor in whether to terminate parental rights. This is contrary to
existing law and contrary to Children's Code provisions. Termination of parental rights is
ordered when it is in the children's best interest. The suitability of
nominated guardians or adoptive parents should not impact whether the
termination of parental rights is in the child’s best interest.
TECHNICAL ISSUES
·
The bill proposes to eliminate current section
32A-4-28(D) and substitute a provision that incarceration is an independent grounds for termination of parental rights (TPR). This is
contrary to well-developed case law in
POSSIBLE QUESTIONS
·
Should the Legislature wait for a
comprehensive study and revision of the Children’s Code (see Significant
Issues) in order that a thorough understanding of the juvenile justice system
and Children’s Code is developed, and the cause and effect of pursued changes
are contemplated?
·
Will a piecemeal approach to the code do
greater damage than good?
·
What is the New Mexico Council on Crime
and Delinquency’s position regarding the numerous Children’s Code bills being
presented during this session?
SJM/sb/njw