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F I S C A L I M P A C T R E P O R T

SPONSOR Taylor

ORIGINAL DATE

LAST UPDATED

1-29-06

1-31-06 HB

SHORT TITLE

Kinship Guardianship Act Review Task Force

SJM 14

ANALYST Lucero

Duplicates HB363, Relates to SB141 and HB13 and HB206, HB19 and SB161

Relates to Appropriation in the General Appropriation Act

SOURCES OF INFORMATION

LFC Files

Responses Received From

Children, Youth and Families Department (CYFD)

Administrative Office of the Courts (AOC)

NM Corrections Department (NMCD)

SUMMARY

Synopsis of Bill

Senate Joint Memorial 14 identifies a need for incarcerated parents to be able to ensure the safety

and health of their children while the parents are temporarily incarcerated. The current provi-

sions of the Uniform Probate Code, the Kinship Guardianship Act and powers of attorney stat-

utes may not provide appropriate mechanisms for addressing the concerns of incarcerated par-

ents. The legislature believes that a mechanism should be in effect for incarcerated parents to

delegate their decision-making powers related to their children.

Senate Joint Memorial 14 calls for the Children, Youth and Families Department (CYFD) to es-

tablish a task force to study the issue of temporary guardianship and make recommendations to

the legislature no later than September 2006 through the Courts, Corrections and Justice Com-

mittee or its successor interim committee.

CYFD is directed to work with the Administrative Office of the Courts (AOC), advocates for

incarcerated parents and advocates for children to determine appropriate membership of the task

force.

A copy of the memorial shall be delivered to the Secretary of CYFD.

FISCAL IMPLICATIONS

The study will require some use of AOC resources and staff to participate in the task force.

Senate Joint Memorial 14 – Page

2

There is no appropriation made by the memorial so AOC will absorb the expense.

SIGNIFICANT ISSUES

Administrative Office of the Courts provides the following comment:

There are no provisions in the Kinship Guardianship Act or other statutes for temporary guardi-

anship specifically for incarcerated parents to permit them, while incarcerated, to delegate deci-

sion-making powers regarding their children, and to regain custody when released.

Incarcerated parents and their advocates feel the Kinship Guardianship Act, (as well as the Uni-

form Probate Code and powers of attorney statutes), are complicated and do not address their

needs. Currently, parents facing incarceration must sign away permanent custody and when they

are released, they must hire an attorney and prove fitness before regaining custody. They lack

funds to hire an attorney and have little faith in the legal system. In consequence, many have

instead signed power-of-attorney documents that have not proven to be effective to provide pro-

tection for and serve the interests of the children, as, without legal custody or guardianship of the

children, the holder of the power of attorney cannot apply for benefits for them, such as Medi-

caid, nor advocate or make decisions for them with schools.

The AOC’s Court Improvement Project (CIP) Task Force has agreed that the guardianship of

children of incarcerated parents is an important issue that needs to be addressed as such children

now have little “safety net” of support and services, nor means of securing temporary guardian-

ship. CIP has made work on this issue an initiative in its strategic plan, and supports this memo-

rial and other efforts to study and improve this situation.

NM Corrections Department provided the following comment:

Because the welfare of a child has a significant impact on an incarcerated parent, changes made

in the Kinship/Guardian Act may have an emotional impact on the general prison population that

impacts prison operations, especially if the Department is required to transport incarcerated par-

ents to hearings for the purpose of delegating decision making power.

ADMINISTRATIVE IMPLICATIONS

The study will require some use of resources and staff time to participate in the task force.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

This bill relates to SB270 and HB87 which appropriates general fund to help grandparents and

kinship providers.

TECHNICAL ISSUES

The Corrections Department should be a taskforce member.

OTHER SUBSTANTIVE ISSUES

Previous memorials have reviewed related issues regarding temporary guardianship for children

being raised by grandparents, including children of incarcerated parents. ALTSD and HSD were

also identified as being impacted by this issue.

Senate Joint Memorial 14 – Page

3

From SAN FRANCISCO PARTNERSHIP FOR INCARCERATED PARENTS:

http://www.centerforce.org/families/bill_of_rights.pdf

“MORE THAN TWO MILLION AMERICAN CHILDREN HAVE A PARENT BEHIND

BARS TODAY, (that is) 50 percent more than a decade ago. Approximately ten million—or

one in eight of the nation’s children has experienced parental incarceration at some point in their

lives. Little is known about what becomes of children when their parents are imprisoned. There

is no requirement that the various institutions charged with dealing with offenders—the police,

courts, jails and prisons, probation departments inquire about children’s existence, much less

concern themselves with children’s care. Conversely, there is no requirement that the front-line

systems serving vulnerable children—public schools, child welfare, juvenile justice inquires

about or account for parental incarceration. Children of prisoners have a daunting array of

needs. They need a safe place to live and people to care for them in their parents’ absence, as

well as everything else a parent might be expected to provide: food, clothing, and medical care.

But beyond these material requirements, young people themselves identify an array of less tangi-

ble, but equally compelling, needs. They need to be told the truth about their parents’ situation.

They need someone to listen without judging, so that their parents’ status need not remain a se-

cret. They need the companionship of others who share their circumstance, so they can know

they are not alone. They need contact with their parents; to have that relationship recognized and

valued even under adverse circumstances. And rather than being stigmatized for their parents’

actions or status they need to be treated with respect, offered opportunity, and recognized as hav-

ing potential.

These needs, too often, go not just unmet but unacknowledged. Over the years, a series of court

cases has delineated the rights of prisoners in the United States. These rights are limited—some

would argue insufficient but they are, at the least, recognized. The idea that prisoners, while they

may be required to forfeit the right to liberty, nevertheless retain other rights that demand re-

spect, is generally taken for granted. Where it is not, advocates are ready and able to step in and

fight on behalf of the incarcerated. The same does not hold true for the children of prisoners.

They have, it ought to go without saying, committed no crime, but the penalty they are required

to pay is steep. They forfeit, in too many cases, virtually everything that matters to them: their

home, their safety, their public status and private self-image, their source of comfort and affec-

tion. Their lives and prospects are profoundly affected by the numerous institutions that lay

claim to their parents police, courts, jails and prisons, probation and parole—but they have no

rights, explicit or implicit, within any of these jurisdictions. This need not be the case. Should

the rights that follow be recognized, the children of prisoners would still face a daunting array of

obstacles and traumas. But they would do so with the knowledge that the society that had re-

moved their parents took some responsibility for their care. A criminal justice model that took as

its constituency not just offending individuals but also the families and communities within

which their lives are embedded one that respected the rights and needs of children might become

one that inspired the confidence and respect of those families and communities, and so played a

part in stemming, rather than perpetuating, the intergenerational cycle of crime and incarceration.

SAN FRANCISCO PARTNERSHIP FOR INCARCERATED PARENTS’ Children of Incarcer-

ated Parents Bill of Rights:

1.

I have the right to be kept safe and informed at the time of my parent’s arrest.

2.

I have the right TO BE HEARD WHEN DECISIONS ARE MADE ABOUT ME

Senate Joint Memorial 14 – Page

4

3.

I have the right TO BE CONSIDERED WHEN DECISIONS ARE MADE ABOUT MY

PARENT.

4.

I have the right TO BE WELL CARED FOR IN MY PARENT’S ABSENCE.

5.

I have the right TO SPEAK WITH, SEE AND TOUCH MY PARENT.

6.

I have the right TO SUPPORT AS I STRUGGLE WITH MY PARENT’S

INCARCERATION.

7.

I have the right NOT TO BE JUDGED, BLAMED OR LABELED BECAUSE OF MY

PARENT’S INCARCERATION.

8.

I have the right TO A LIFELONG RELATIONSHIP WITH MY PARENT.”

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Status Quo

DL/nt