0001| HOUSE BILL 1161
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| EARLENE ROBERTS
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO CHILDREN; CLARIFYING DUTIES TO REPORT ABUSE OR
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0012| NEGLECT OF A CHILD; CHANGING PROCEDURES AND TIME FRAMES FOR
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0013| HEARINGS HELD PURSUANT TO THE ABUSE AND NEGLECT ACT; CLARIFYING
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0014| ADOPTION PROCEDURES; AMENDING, REPEALING AND ENACTING SECTIONS
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0015| OF THE CHILDREN'S CODE.
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0016|
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0017| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0018| Section 1. Section 32A-4-1 NMSA 1978 (being Laws 1993,
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0019| Chapter 77, Section 95) is amended to read:
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0020| "32A-4-1. SHORT TITLE.--Chapter [32] 32A, Article 4
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0021| NMSA 1978 may be cited as the "Abuse and Neglect Act"."
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0022| Section 2. Section 32A-4-2 NMSA 1978 (being Laws 1993,
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0023| Chapter 77, Section 96) is amended to read:
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0024| "32A-4-2. DEFINITIONS.--As used in the Abuse and Neglect
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0025| Act:
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0001| A. "abandonment" includes, but is not limited to,
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0002| instances when the parent, without justifiable cause:
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0003| (1) left the child without provision for the
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0004| child's identification for a period of fourteen days; or
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0005| (2) left the child with others, including the
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0006| other parent or an agency, without provision for support and
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0007| without communication for a period of:
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0008| (a) three months if the child was under
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0009| six years of age at the commencement of the three-month period;
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0010| or
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0011| (b) six months if the child was over six
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0012| years of age at the commencement of the six-month period;
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0013| B. "abused child" means a child who has suffered
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0014| serious harm or who is at risk of suffering serious harm:
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0015| (1) who has suffered physical abuse, emotional
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0016| abuse or psychological abuse inflicted by the child's parent,
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0017| guardian or custodian;
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0018| (2) who has suffered sexual abuse or sexual
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0019| exploitation inflicted by the child's parent, guardian or
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0020| custodian;
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0021| (3) whose parent, guardian or custodian has
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0022| knowingly, intentionally or negligently placed the child in a
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0023| situation that may endanger the child's life or health; or
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0024| (4) whose parent, guardian or custodian has
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0025| knowingly or intentionally tortured, cruelly confined or
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0001| cruelly punished the child;
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0002| C. "neglected child" means a child who has
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0003| suffered serious harm or who is at risk of suffering serious
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0004| harm:
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0005| (1) who has been abandoned by the child's
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0006| parent, guardian or custodian;
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0007| (2) who is without proper parental care and
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0008| control or subsistence, education, medical or other care or
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0009| control necessary for the child's well-being because of the
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0010| faults or habits of the child's parent, guardian or custodian
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0011| or the neglect or refusal of the parent, guardian or custodian,
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0012| when able to do so, to provide them;
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0013| (3) who has been physically or sexually
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0014| abused, when the child's parent, guardian or custodian knew or
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0015| should have known of the abuse and failed to take reasonable
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0016| steps to protect the child from further harm;
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0017| (4) whose parent, guardian or custodian is
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0018| unable to discharge his responsibilities to and for the child
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0019| because of incarceration, hospitalization or other physical or
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0020| mental disorder or incapacity; or
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0021| (5) who has been placed for care or adoption
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0022| in violation of the law; provided that nothing in the
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0023| Children's Code shall be construed to imply that a child who is
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0024| being provided with treatment by spiritual means alone through
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0025| prayer, in accordance with the tenets and practices of a
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0001| recognized church or religious denomination, by a duly
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0002| accredited practitioner thereof is for that reason alone a
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0003| neglected child within the meaning of the Children's Code; and
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0004| further provided that no child shall be denied the protection
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0005| afforded to all children under the Children's Code;
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0006| D. "physical abuse" includes, but is not limited
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0007| to, any case in which the child exhibits evidence of skin
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0008| bruising, bleeding, malnutrition, failure to thrive, burns,
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0009| fracture of any bone, subdural hematoma, soft tissue swelling
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0010| or death and:
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0011| (1) there is not a justifiable explanation for
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0012| the condition or death;
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0013| (2) the explanation given for the condition is
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0014| at variance with the degree or nature of the condition;
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0015| (3) the explanation given for the death is at
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0016| variance with the nature of the death; or
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0017| (4) circumstances indicate that the condition
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0018| or death may not be the product of an accidental occurrence;
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0019| E. "sexual abuse" includes, but is not limited to,
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0020| criminal sexual contact, incest or criminal sexual penetration,
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0021| as those acts are defined by state law; and
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0022| F. "sexual exploitation" includes, but is not
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0023| limited to:
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0024| (1) allowing, permitting or encouraging a
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0025| child to engage in prostitution;
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0001| (2) allowing, permitting, encouraging or
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0002| engaging a child in obscene or pornographic photographing; or
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0003| (3) filming or depicting a child for obscene
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0004| or pornographic commercial purposes, as those acts are defined
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0005| by state law."
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0006| Section 3. Section 32A-4-3 NMSA 1978 (being Laws 1993,
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0007| Chapter 77, Section 97) is amended to read:
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0008| "32A-4-3. DUTY TO REPORT CHILD ABUSE AND CHILD
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0009| NEGLECT RESPONSIBILITY TO INVESTIGATE CHILD ABUSE OR NEGLECT-
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0010| -PENALTY.--
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0011| A. Every person, including but not limited to a
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0012| licensed physician, a resident or an intern examining,
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0013| attending or treating a child, a law enforcement officer, a
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0014| judge presiding during any proceeding, a registered nurse, a
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0015| visiting nurse, a schoolteacher or a school official or social
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0016| worker acting in an official capacity who knows or has a
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0017| reasonable suspicion that a child is an abused or a neglected
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0018| child shall report the matter immediately to:
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0019| (1) a local law enforcement agency;
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0020| (2) the department office in the county where
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0021| the child resides; or
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0022| (3) tribal law enforcement or social services
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0023| agencies for any Indian child residing in Indian country.
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0024| B. Any law enforcement agency receiving the report
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0025| shall immediately transmit the facts of the report and the
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0001| name, address and phone number of the reporter by telephone to
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0002| the department office in the county where the child resides and
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0003| shall transmit the same information in writing within
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0004| forty-eight hours. Any office of the department receiving a
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0005| report shall immediately transmit the facts of the report and
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0006| the name, address and phone number of the reporter by telephone
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0007| to a local law enforcement agency and shall transmit the same
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0008| information in writing within forty-eight hours. The written
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0009| report shall contain the names and addresses of the child and
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0010| the child's parents, guardian or custodian, the child's age,
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0011| the nature and extent of the child's injuries, including any
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0012| evidence of previous injuries, and other information that the
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0013| maker of the report believes might be helpful in establishing
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0014| the cause of the injuries and the identity of the person [or
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persons] responsible for the injuries. The written report
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0016| shall be submitted upon a standardized form agreed to by the
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0017| law enforcement agency and the department.
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0018| C. If an alleged perpetrator of abuse or neglect
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0019| of a child is not a parent, guardian or custodian of the child
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0020| or a member of the child's family, a local law enforcement
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0021| agency is responsible for investigating the case of alleged
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0022| abuse or neglect.
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0023| D. If an alleged perpetrator of abuse or neglect of
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0024| a child is a parent, guardian or custodian of the child or a
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0025| member of the child's family, the department is responsible for
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0001| investigating the case of alleged abuse or neglect.
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0002| [C.] E. The recipient of the report under
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0003| Subsection A of this section shall take immediate steps to
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0004| ensure prompt investigation of the report. The investigation
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0005| shall ensure that immediate steps are taken to protect the
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0006| health or welfare of the alleged abused or neglected child,
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0007| as well as that of any other child under the same care who may
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0008| be in danger of abuse or neglect. A local law enforcement
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0009| agency is responsible for investigating reports of alleged
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0010| child abuse or neglect at schools, day care facilities or child
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0011| care facilities.
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0012| [D. Upon a determination by the department that
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any child may have suffered or is in imminent danger of
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suffering abuse or neglect while in the care or control of or
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in a child care facility or family day-care home, the
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department shall immediately notify the parents of the child
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and the agency responsible for licensing the child care
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facility or family day-care home. No determination shall be
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made prior to consultation with the facility.
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E.] F. If the child alleged to be abused or
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0021| neglected is in the care or control of or in a facility
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0022| administratively connected to the department, the report shall
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0023| be investigated [through the office of the district attorney]
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0024| by local law enforcement. The investigation shall ensure
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0025| that immediate steps are taken to protect the health or welfare
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0001| of the alleged abused or neglected child, as well as that of
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0002| any other child under the same care who may be in danger of
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0003| abuse or neglect.
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0004| [F.] G. A law enforcement agency or the
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0005| department shall have access to any of the records pertaining
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0006| to a child abuse or neglect case maintained by any of the
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0007| persons enumerated in Subsection A of this section, except as
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0008| otherwise provided in the Abuse and Neglect Act.
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0009| [G.] H. Any person who violates the provisions
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0010| of Subsection A of this section is guilty of a misdemeanor and
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0011| shall be sentenced pursuant to the provisions of Section
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0012| 31-19-1 NMSA 1978."
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0013| Section 4. Section 32A-4-19 NMSA 1978 (being Laws 1993,
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0014| Chapter 77, Section 113) is amended to read:
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0015| "32A-4-19. ADJUDICATORY HEARINGS--TIME LIMITATIONS.--
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0016| A. The adjudicatory hearing in a neglect or abuse
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0017| proceeding shall be commenced within [ninety] sixty days
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0018| after the latest of the following dates:
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0019| (1) the date that the petition is served on
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0020| the respondent;
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0021| (2) if the trial court orders a mistrial or a
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0022| new trial, the date that the order is filed; or
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0023| (3) in the event of an appeal, the date that
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0024| the mandate or order is filed in the district court disposing
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0025| of the appeal.
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0001| B. Prior to the adjudicatory hearing, all parties
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0002| to the hearing shall attend a mandatory meeting and attempt to
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0003| settle issues attendant to the adjudicatory hearing and develop
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0004| a proposed treatment plan that serves the child's best
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0005| interest.
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0006| [B.] C. The children's court attorney shall
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0007| represent the state at the adjudicatory hearing.
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0008| [C.] D. When the adjudicatory hearing on any
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0009| petition is not begun within the time period specified in
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0010| Subsection A of this section or within the period of any
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0011| extension granted, the petition shall be dismissed with
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0012| prejudice."
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0013| Section 5. Section 32A-4-20 NMSA 1978 (being Laws 1993,
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0014| Chapter 77, Section 114) is amended to read:
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0015| "32A-4-20. CONDUCT OF HEARINGS--FINDINGS--DISMISSAL--
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0016| DISPOSITIONAL MATTERS--PENALTY.--
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0017| A. The proceedings shall be recorded by
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0018| stenographic notes or by electronic, mechanical or other
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0019| appropriate means.
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0020| B. All abuse and neglect hearings shall be closed
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0021| to the general public.
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0022| C. Only the parties, their counsel, witnesses and
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0023| other persons approved by the court may be present at a closed
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0024| hearing. Those other persons the court finds to have a proper
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0025| interest in the case or in the work of the court may be
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0001| admitted by the court to closed hearings on the condition that
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0002| they refrain from divulging any information that would identify
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0003| the child or family involved in the proceedings.
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0004| D. Accredited representatives of the news media
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0005| shall be allowed to be present at closed hearings, subject to
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0006| the condition that they refrain from divulging information that
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0007| would identify any child involved in the proceedings or the
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0008| parent, guardian or custodian of that child and subject to
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0009| enabling regulations as the court finds necessary for the
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0010| maintenance of order and decorum and for the furtherance of the
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0011| purposes of the Children's Code.
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0012| E. If the court finds that it is in the best
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0013| interest of the child, the child may be excluded from a neglect
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0014| or an abuse hearing. Under the same conditions, a child may be
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0015| excluded by the court during a hearing on dispositional issues.
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0016| F. Those persons or parties granted admission to a
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0017| closed hearing who intentionally divulge information in
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0018| violation of this section are guilty of a petty misdemeanor.
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0019| G. The court shall determine if the allegations of
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0020| the petition are admitted or denied. If the allegations are
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0021| denied, the court shall proceed to hear evidence on the
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0022| petition. The court after hearing all of the evidence bearing
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0023| on the allegations of neglect or abuse shall make and record
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0024| its findings on whether the child is a neglected child, an
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0025| abused child or both.
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0001| H. If the court finds on the basis of a valid
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0002| admission of the allegations of the petition or on the basis of
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0003| clear and convincing evidence, competent, material and relevant
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0004| in nature, that the child is neglected or abused, the court may
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0005| proceed immediately or at a postponed hearing to make
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0006| disposition of the case. If the court does not find that the
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0007| child is neglected or abused, the court shall dismiss the
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0008| petition and may refer the family to the department for
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0009| appropriate services.
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0010| I. In that part of the hearings held under the
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0011| Children's Code on dispositional issues, all relevant and
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0012| material evidence helpful in determining the questions
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0013| presented, including oral and written reports, may be received
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0014| by the court and may be relied upon to the extent of its
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0015| probative value even though not competent had it been offered
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0016| during the part of the hearings on adjudicatory issues.
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0017| J. On the court's motion or that of a party, the
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0018| court may continue the hearing on the petition for a
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0019| [reasonable time] period not to exceed thirty days to
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0020| receive reports and other evidence in connection with
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0021| disposition. The court shall continue the hearing pending the
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0022| receipt of the predisposition study and report if that document
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0023| has not been prepared and received. During any continuances
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0024| under this subsection, the court shall make an appropriate
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0025| order for legal custody."
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0001| Section 6. Section 32A-4-21 NMSA 1978 (being Laws 1993,
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0002| Chapter 77, Section 115) is amended to read:
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0003| "32A-4-21. NEGLECT OR ABUSE PREDISPOSITION STUDIES,
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0004| REPORTS AND EXAMINATIONS.--
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0005| A. Prior to holding a dispositional hearing, the
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0006| court shall direct that a predisposition study and report be
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0007| [made] submitted in writing to the court by the department.
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0008| B. The predisposition study required pursuant to
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0009| Subsection A of this section shall contain the following
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0010| information:
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0011| (1) a statement of the specific [harm to the
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child that intervention is designed to alleviate] reasons for
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0013| intervention by the department or for placing the child in the
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0014| department's custody and a statement of the parent's ability to
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0015| care for the child in the parent's home without causing harm to
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0016| the child;
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0017| [(2) if removal from or continued residence
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outside the home is recommended, a statement of the likely harm
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the child will suffer as a result of removal, including
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emotional harm resulting from separation from the child's
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parents; and
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(3) a treatment plan consisting of:
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(a) a description of the specific
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progress needed to be made by both the parent and the child in
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order to prevent further harm to the child, the reasons why the
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program is likely to be useful, the availability of any
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proposed services and the department's overall plan for
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ensuring that the services will be delivered;
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(b) if removal from the home or
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continued residence outside the home is recommended, a
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description of any previous efforts to work with the parent and
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the child in the home and the in-home treatment programs that
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have been considered and rejected;
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(c) a description of the steps that will
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be taken to minimize any harm to the child that may result if
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separation from the child's parent occurs or continues;
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(d) a description of the behavior that
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will be expected before a determination is made that
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supervision of the family or placement is no longer necessary;
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and
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(e) if removal from or continued
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residence outside the home is recommended and the child is
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sixteen years of age or older, a description of the specific
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skills the child requires for successful transition into
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independent living as an adult, what program, educational or
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otherwise, will provide the skills, the reasons why the program
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is likely to be useful, the availability of any proposed
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programs and the department's overall plan for ensuring that
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the child will be adequately prepared for adulthood]
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0025| (2) a statement of how an intervention plan
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0001| is designed to achieve placement of the child in the least
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0002| restrictive setting available, consistent with the best
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0003| interests and special needs of the child, including a statement
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0004| of the likely harm the child may suffer as a result of being
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0005| removed from the parent's home, including emotional harm that
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0006| may result due to separation from the child's parents, and a
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0007| statement of how the intervention plan is designed to place the
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0008| child in close proximity to the parent's home without causing
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0009| harm to the child due to separation from his parents, siblings
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0010| or any other person who may significantly affect the child's
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0011| best interest;
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0012| (3) the wishes of the child as to his
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0013| custodian;
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0014| (4) whether the child has a family member who,
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0015| subsequent to study by the department, is determined to be
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0016| qualified to care for the child;
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0017| (5) a description of services offered to the
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0018| child, his family and his foster care family and a summary of
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0019| reasonable efforts made to prevent removal of the child from
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0020| his family or reasonable efforts made to reunite the child with
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0021| his family;
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0022| (6) a description of the home or facility in
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0023| which the child is placed and the appropriateness of the
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0024| child's placement;
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0025| (7) the results of any diagnostic examination
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0001| or evaluation ordered at the custody hearing;
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0002| (8) a statement of the child's medical and
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0003| educational background;
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0004| (9) if the child is an Indian child, whether
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0005| the placement preferences set forth in the federal Indian Child
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0006| Welfare Act of 1978 or the placement preferences of the child's
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0007| Indian tribe were followed and whether the child's treatment
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0008| plan provides for maintaining the child's cultural ties;
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0009| (10) a treatment plan that sets forth steps to
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0010| ensure that the child's physical, medical, psychological and
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0011| educational needs are met and that sets forth services to be
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0012| provided to the child and his parents to facilitate permanent
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0013| placement of the child in the parent's home; and
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0014| (11) for children sixteen years of age and
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0015| older, a plan for developing the specific skills the child
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0016| requires for successful transition into independent living as
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0017| an adult, regardless of whether the child is returned to his
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0018| parent's home.
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0019| C. A copy of the predisposition report shall be
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0020| provided by the department to counsel for all parties five days
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0021| before the dispositional hearing.
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0022| D. If the child is an adjudicated abused child, any
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0023| temporary custody orders shall remain in effect until the court
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0024| has received and considered the predispositional study at the
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0025| dispositional hearing."
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0001| Section 7. Section 32A-4-22 NMSA 1978 (being Laws 1993,
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0002| Chapter 77, Section 116) is amended to read:
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0003| "32A-4-22. DISPOSITION OF ADJUDICATED ABUSED OR NEGLECTED
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0004| CHILD.--
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0005| A. If not held in conjunction with the adjudicatory
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0006| hearing, the dispositional hearing shall be commenced within
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0007| thirty days after the conclusion of the adjudicatory hearing.
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0008| At the conclusion of the dispositional hearing, the court shall
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0009| make and include in the dispositional judgment its findings on
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0010| the following:
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0011| (1) the interaction and interrelationship of
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0012| the child with his parent, siblings and any other person who
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0013| may significantly affect the child's best interest;
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0014| (2) the child's adjustment to his home, school
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0015| and community;
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0016| (3) the mental and physical health of all
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0017| individuals involved;
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0018| (4) the wishes of the child as to his
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0019| custodian;
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0020| (5) the wishes of the child's parent, guardian
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0021| or custodian as to the child's custody;
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0022| (6) whether there exists a relative of the
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0023| child or other individual who, after study by the department,
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0024| is found to be qualified to receive and care for the child;
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0025| (7) the availability of services recommended
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0001| in the treatment plan prepared as a part of the predisposition
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0002| study in accordance with the provisions of Section [32-4-19]
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0003| 32A-4-21 NMSA 1978;
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0004| (8) the ability of the parent to care for the
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0005| child in the home so that no harm will result to the child;
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0006| (9) whether reasonable efforts were
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0007| [utilized] used by the department to prevent removal of the
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0008| child from the home prior to placement in substitute care and
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0009| whether reasonable efforts were [utilized] used to attempt
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0010| reunification of the child with the natural parent; and
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0011| (10) if the child is an Indian child, whether
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0012| the placement preferences set forth in the federal Indian Child
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0013| Welfare Act of 1978 or the placement preferences of the child's
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0014| Indian tribe have been followed and whether the Indian child's
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0015| treatment plan provides for maintaining the Indian child's
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0016| cultural ties. When placement preferences have not been
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0017| followed, good cause for noncompliance shall be clearly stated
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0018| and supported.
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0019| B. If a child is found to be neglected or abused,
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0020| the court may enter its judgment making any of the following
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0021| dispositions to protect the welfare of the child:
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0022| (1) permit the child to remain with his
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0023| parent, guardian or custodian, subject to those conditions and
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0024| limitations the court may prescribe;
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0025| (2) place the child under protective
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0001| supervision of the department; or
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0002| (3) transfer legal custody of the child to any
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0003| of the following:
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0004| (a) [to] the noncustodial parent, if it
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0005| is found to be in the child's best interest;
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0006| (b) an agency responsible for the care
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0007| of neglected or abused children; or
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0008| (c) a child-placement agency willing and
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0009| able to assume responsibility for the education, care and
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0010| maintenance of the child and licensed or otherwise authorized
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0011| by law to receive and provide care for the child.
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0012| C. If a child is found to be neglected or abused,
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0013| in its dispositional judgment the court shall also order the
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0014| department to implement and the child's parent, guardian or
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0015| custodian to cooperate with any treatment plan approved by the
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0016| court.
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0017| D. Any parent, guardian or custodian of a child who
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0018| is placed in the legal custody of the department or other
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0019| person pursuant to Subsection B of this section shall have
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0020| reasonable rights of visitation with the child as determined by
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0021| the court, unless the court finds that the best interests of
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0022| the child preclude any visitation.
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0023| E. The court may order reasonable visitation
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0024| between a child placed in the custody of the department and the
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0025| child's siblings or any other person who may significantly
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0001| affect the child's best interest, if the court finds the
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0002| visitation to be in the child's best interest.
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0003| F. Unless a child found to be neglected or abused
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0004| is also found to be delinquent, the child shall not be confined
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0005| in an institution established for the long-term care and
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0006| rehabilitation of delinquent children.
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0007| G. When the court vests legal custody in an agency,
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0008| institution or department, the court shall transmit with the
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0009| dispositional judgment copies of the clinical reports, the
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0010| predisposition study and report and any other information it
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0011| has pertinent to the care and treatment of the child.
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0012| H. Prior to any child being placed in the custody
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0013| or protective supervision of the department, the department
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0014| shall be provided with reasonable oral or written notification
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0015| and an opportunity to be heard. At any hearing held pursuant
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0016| to this subsection, the department may appear as a party.
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0017| I. When a child is placed in the custody of the
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0018| department, the department shall investigate whether the child
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0019| is eligible for enrollment as a member of an Indian tribe and,
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0020| if so, the department shall pursue the enrollment on the
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0021| child's behalf."
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0022| Section 8. Section 32A-4-25 NMSA 1978 (being Laws 1993,
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0023| Chapter 77, Section 119, as amended) is amended to read:
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0024| "32A-4-25. PERIODIC REVIEW OF DISPOSITIONAL JUDGMENTS.--
|
0025| 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 an adjudicated neglected or abused
|
child.] The initial judicial review shall be held within
|
0005| sixty days of the disposition. At the initial review, the
|
0006| parties shall demonstrate to the court efforts made to
|
0007| implement the treatment plan approved by the court in its
|
0008| dispositional order. The court shall determine the extent to
|
0009| which the treatment plan has been implemented and make
|
0010| supplemental orders as necessary to assure compliance with the
|
0011| treatment plan and the safety of the child. Prior to the
|
0012| initial judicial review, the department shall submit a copy of
|
0013| the adjudicatory order, the dispositional order and notice of
|
0014| the initial judicial review to the local substitute care review
|
0015| board for that judicial district created under the Citizen
|
0016| Substitute Care Review Act. A representative of the local
|
0017| substitute care review board shall be permitted to attend and
|
0018| comment to the court.
|
0019| B. Subsequent periodic reviews of dispositional
|
0020| orders shall be held within six months of the conclusion of the
|
0021| permanency hearing or, if a motion has been filed for
|
0022| termination of parental rights or permanent guardianship,
|
0023| within six months of the decision on that motion and every six
|
0024| months thereafter. Prior to the review, the department shall
|
0025| submit a progress report to the local substitute care review
|
0001| board for that judicial district created under the Citizen
|
0002| Substitute Care Review Act. Prior to any judicial review by
|
0003| the court pursuant to this section, the local substitute care
|
0004| review board may review the dispositional order or the
|
0005| continuation of the order and the department's progress report
|
0006| and report its findings and recommendations to the court. The
|
0007| review may be carried out by either of the following:
|
0008| (1) a judicial review hearing conducted by the
|
0009| court; or
|
0010| (2) a judicial review hearing conducted by a
|
0011| special master appointed by the court; provided, however, that
|
0012| the court approve any findings made by the special master.
|
0013| [B.] C. The children's court attorney shall
|
0014| give notice to all parties, the child's guardian ad litem, the
|
0015| child's CASA, a contractor administering the local substitute
|
0016| care review board and the child's foster parent or substitute
|
0017| care provider of the time, place and purpose of any judicial
|
0018| review hearing held pursuant to Subsection [A] B of this
|
0019| section.
|
0020| [C.] D. At any judicial review hearing held
|
0021| pursuant to Subsection [A] B of this section, the
|
0022| department, the child's guardian ad litem and all parties given
|
0023| notice under Subsection [B] C of this section shall have
|
0024| the opportunity to present evidence and to cross-examine
|
0025| witnesses. At the hearing, the department shall show that it
|
0001| has made reasonable effort to implement any treatment plan
|
0002| approved by the court in its dispositional order and shall
|
0003| present a treatment plan consistent with the purposes of the
|
0004| Children's Code for any period of extension of the
|
0005| dispositional order. The respondent shall demonstrate to the
|
0006| court that efforts to comply with the treatment plan approved
|
0007| by the court in its dispositional order and efforts to maintain
|
0008| contact with the child were diligent and made in good faith.
|
0009| The court shall determine the extent of compliance with the
|
0010| treatment plan and whether progress is being made toward
|
0011| establishing a stable and permanent placement for the child.
|
0012| [D.] E. The Rules of Evidence shall not apply
|
0013| to hearings held pursuant to this section. The court may admit
|
0014| testimony by any person given notice of the hearing who has
|
0015| information about the status of the child or the status of the
|
0016| treatment plan.
|
0017| [E.] F. At the conclusion of any hearing held
|
0018| pursuant to this section, the court shall make findings of fact
|
0019| and conclusions of law.
|
0020| [F.] G. When the child is an Indian child, the
|
0021| court shall determine during review of a dispositional order
|
0022| whether the placement preferences set forth in the federal
|
0023| Indian Child Welfare Act of 1978 or the placement preferences
|
0024| of the child's Indian tribe were followed and whether the
|
0025| child's treatment plan provides for maintaining the child's
|
0001| cultural ties. When placement preferences have not been
|
0002| followed, good cause for noncompliance shall be clearly stated
|
0003| and supported.
|
0004| [G.] H. Based on its findings at a judicial
|
0005| review hearing held pursuant to Subsection B of this section,
|
0006| the court shall order one of the following dispositions:
|
0007| (1) dismiss the action and return the child to
|
0008| his parent without supervision if the court finds that
|
0009| conditions in the home that led to abuse have been corrected
|
0010| and it is now safe for the return of the abused child;
|
0011| (2) permit the child to remain with his
|
0012| parent, guardian or custodian subject to those conditions and
|
0013| limitations the court may prescribe, including protective
|
0014| supervision of the child by the department;
|
0015| (3) return the child to his parent and place
|
0016| the child under the protective supervision of the department;
|
0017| (4) transfer or continue legal custody of the
|
0018| child to:
|
0019| (a) the noncustodial parent, if that is
|
0020| found to be in the child's best interests;
|
0021| (b) a relative or other individual who,
|
0022| after study by the department or other agency designated by the
|
0023| court, is found by the court to be qualified to receive and
|
0024| care for the child and is appointed as a permanent guardian of
|
0025| the child; or
|
0001| (c) the department, subject to the
|
0002| provisions of Paragraph (6) of this subsection;
|
0003| (5) continue the child in the legal custody of
|
0004| the department with or without any required parental
|
0005| involvement in a treatment plan;
|
0006| (6) make additional orders regarding the
|
0007| treatment plan or placement of the child to protect the child's
|
0008| best interests if the court determines the department has
|
0009| failed in implementing any material provision of the treatment
|
0010| plan or abused its discretion in the placement or proposed
|
0011| placement of the child; or
|
0012| (7) if during a judicial review the court
|
0013| finds that the child's parent, guardian or custodian has not
|
0014| complied with the court-ordered treatment plan, the court may
|
0015| order:
|
0016| (a) the child's parent, guardian or
|
0017| custodian to show cause why he should not be held in contempt
|
0018| of court; or
|
0019| (b) a hearing on the merits of
|
0020| terminating parental rights.
|
0021| [H.] I. Dispositional orders entered pursuant
|
0022| to this section shall remain in force for a period of six
|
0023| months, except for orders that provide for transfer of the
|
0024| child to the child's noncustodial parent or to a permanent
|
0025| guardian.
|
0001| [I.] J. The report of the local substitute care
|
0002| review board submitted to the court pursuant to Subsection
|
0003| [A] B of this section shall become a part of the child's
|
0004| permanent court record."
|
0005| Section 9. A new section of the Abuse and Neglect Act is
|
0006| enacted to read as follows:
|
0007| "[NEW MATERIAL] PERMANENCY HEARINGS--REBUTTABLE
|
0008| PRESUMPTIONS.--
|
0009| A. A permanency hearing shall be commenced within
|
0010| six months of the initial judicial review of the child's
|
0011| dispositional order. Prior to the permanency hearing, all
|
0012| parties to the hearing shall attend a mandatory meeting and
|
0013| attempt to settle issues attendant to the permanency hearing
|
0014| and develop a proposed treatment plan that serves the child's
|
0015| best interest. Prior to the permanency hearing, the department
|
0016| shall submit a progress report regarding the child to the local
|
0017| substitute care review board for that judicial district. The
|
0018| local substitute care review board may review the child's
|
0019| dispositional order, any continuation of that order and the
|
0020| department's progress report and report its findings and
|
0021| recommendations to the court.
|
0022| B. During a permanency hearing, there shall be a
|
0023| rebuttable presumption that the child's best interest will be
|
0024| served by returning the child to his parent, guardian or
|
0025| custodian. At the hearing, all parties shall have the
|
0001| opportunity to present evidence and to cross-examine witnesses.
|
0002| At the conclusion of the permanency hearing, the court shall
|
0003| determine if sufficient evidence was presented to rebut the
|
0004| presumption.
|
0005| C. If insufficient evidence is presented to rebut,
|
0006| by a preponderance of the evidence, the presumption set forth
|
0007| in Subsection B of this section, the court shall order one of
|
0008| the following dispositions:
|
0009| (1) dismiss the case and return the child to
|
0010| his parent, guardian or custodian; or
|
0011| (2) return the child to his parent, guardian
|
0012| or custodian, subject to those conditions and limitations the
|
0013| court may prescribe, including protective supervision of the
|
0014| child by the department and continuation of the treatment plan
|
0015| for not more than six months.
|
0016| D. If sufficient evidence is presented to rebut, by
|
0017| a preponderance of the evidence, the presumption set forth in
|
0018| Subsection B of this section, the court shall order that the
|
0019| child remain in the legal custody of the department and make
|
0020| additional orders regarding the treatment plan. Within three
|
0021| months of a permanency hearing order issued pursuant to this
|
0022| subsection, if a motion to terminate parental rights or appoint
|
0023| a permanent guardian has not been filed or if the child's
|
0024| permanency plan has not been formally changed to provide for
|
0025| emancipation of the child, a subsequent permanency hearing
|
0001| shall be commenced.
|
0002| E. During a subsequent permanency hearing, there
|
0003| shall be a rebuttable presumption that the child's best
|
0004| interest will be served by changing the child's permanency plan
|
0005| to provide for adoption of the child, emancipation of the
|
0006| child, permanent guardianship for the child or long-term foster
|
0007| care for the child. At the hearing, all parties shall have the
|
0008| opportunity to present evidence and cross-examine witnesses.
|
0009| At the conclusion of the hearing, the court shall determine if
|
0010| sufficient evidence was presented to rebut the presumption.
|
0011| F. If insufficient evidence is presented to rebut,
|
0012| by a preponderance of the evidence, the presumption set forth
|
0013| in Subsection E of this section, the court shall order:
|
0014| (1) the department to change the child's
|
0015| permanency plan to provide for adoption of the child,
|
0016| emancipation of the child, permanent guardianship for the child
|
0017| or long-term foster care for the child; and
|
0018| (2) that additional efforts to reunite the
|
0019| child and his parent shall not be attempted.
|
0020| G. If sufficient evidence is presented to rebut, by
|
0021| a preponderance of the evidence, the presumption set forth in
|
0022| Subsection E of this section, the court shall order one of the
|
0023| following dispositions:
|
0024| (1) dismiss the case and return the child to
|
0025| his parent, guardian or custodian; or
|
0001| (2) return the child to his parent, guardian
|
0002| or custodian, subject to those conditions and limitations the
|
0003| court may prescribe, including protective supervision of the
|
0004| child by the department and continuation of the treatment plan
|
0005| for not more than six months.
|
0006| H. The children's court attorney shall give notice
|
0007| to all parties, the child's guardian ad litem, the child's
|
0008| CASA, a contractor administering the local substitute care
|
0009| review board and the child's foster parent or substitute care
|
0010| provider of the time, place and purpose of any permanency
|
0011| hearing held pursuant to this section.
|
0012| I. The Rules of Evidence shall not apply to
|
0013| permanency hearings. The court may admit testimony by any
|
0014| person given notice of the permanency hearing who has
|
0015| information about the status of the child or the status of the
|
0016| treatment plan. All testimony shall be subject to cross-
|
0017| examination."
|
0018| Section 10. Section 32A-4-28 NMSA 1978 (being Laws 1993,
|
0019| Chapter 77, Section 122, as amended) is amended to read:
|
0020| "32A-4-28. TERMINATION OF PARENTAL RIGHTS--ADOPTION
|
0021| DECREE.--
|
0022| A. In proceedings to terminate parental rights, the
|
0023| court shall give primary consideration to the physical, mental
|
0024| and emotional welfare and needs of the child, including the
|
0025| likelihood of the child being adopted if parental rights are
|
0001| terminated.
|
0002| B. The court shall terminate parental rights with
|
0003| respect to a child when:
|
0004| (1) there has been an abandonment of the child
|
0005| by his parents;
|
0006| (2) the child has been a neglected or abused
|
0007| child as defined in the Abuse and Neglect Act and the court
|
0008| finds that the conditions and causes of the neglect and abuse
|
0009| are unlikely to change in the foreseeable future despite
|
0010| reasonable efforts by the department or other appropriate
|
0011| agency to assist the parent in adjusting the conditions that
|
0012| render the parent unable to properly care for the child.
|
0013| [provided] The court may find in some cases that efforts by
|
0014| the department or another agency [would be] are
|
0015| unnecessary, when there is a clear showing that the efforts
|
0016| would be futile or when a parent has caused great bodily harm
|
0017| or death to the child or the child's sibling; or
|
0018| (3) the child has been placed in the care of
|
0019| others, including care by other relatives, either by a court
|
0020| order or otherwise and the following conditions exist:
|
0021| (a) the child has lived in the home of
|
0022| others for an extended period of time;
|
0023| (b) the parent-child relationship has
|
0024| disintegrated;
|
0025| (c) a psychological parent-child
|
0001| relationship has developed between the substitute family and
|
0002| the child;
|
0003| (d) if the court deems the child of
|
0004| sufficient capacity to express a preference, the child no
|
0005| longer prefers to live with the natural parent;
|
0006| (e) the substitute family desires to
|
0007| adopt the child; and
|
0008| (f) a presumption of abandonment created
|
0009| by the conditions described in Subparagraphs (a) through (e) of
|
0010| this paragraph has not been rebutted.
|
0011| C. A finding by the court that all of the
|
0012| conditions set forth in Subparagraphs (a) through [(e)] (f)
|
0013| of Paragraph (3) of Subsection B of this section exist shall
|
0014| create a rebuttable presumption of abandonment.
|
0015| D. The termination of parental rights involving a
|
0016| child subject to the federal Indian Child Welfare Act of 1978
|
0017| shall comply with the requirements of that act.
|
0018| E. [When] If the court finds that parental
|
0019| rights should be terminated; that the requirements for the
|
0020| adoption of a child have been satisfied; that the prospective
|
0021| adoptive parent is a party to the action; and that [the] good
|
0022| cause exists to waive the filing of a separate petition for
|
0023| adoption, the court may proceed to grant adoption of the child,
|
0024| absent an appeal of the termination of parental rights. The
|
0025| court shall not waive any time requirements set forth in the
|
0001| Adoption Act, unless the termination of parental rights
|
0002| occurred pursuant to the provisions of Paragraph (3) of
|
0003| Subsection B of this section. The court may enter a decree of
|
0004| adoption only after finding that the party seeking to adopt the
|
0005| child has satisfied all of the requirements set forth in the
|
0006| Adoption Act. Unless otherwise stipulated by all parties, an
|
0007| adoption decree shall take effect sixty days after the
|
0008| termination of parental rights, to allow the department
|
0009| sufficient time to provide counseling for the child and
|
0010| otherwise prepare the child for the adoption. The adoption
|
0011| decree shall conform to the requirements of the Adoption Act
|
0012| and shall have the same force and effect as other adoption
|
0013| decrees entered pursuant to that act. The court clerk shall
|
0014| assign an adoption case number to the adoption decree."
|
0015| Section 11. Section 32A-4-29 NMSA 1978 (being Laws 1993,
|
0016| Chapter 77, Section 123) is amended to read:
|
0017| "32A-4-29. TERMINATION PROCEDURE.--
|
0018| A. A motion to terminate parental rights may be
|
0019| filed at any stage of the abuse or neglect proceeding. The
|
0020| proceeding may be initiated by any of the following:
|
0021| (1) the department;
|
0022| (2) a licensed child placement agency; or
|
0023| (3) any other person having a legitimate
|
0024| interest in the matter, including the child's guardian ad
|
0025| litem, a petitioner for adoption, a foster parent or a relative
|
0001| of the child.
|
0002| B. The motion for termination of parental rights
|
0003| shall be signed, verified by the moving party and filed with
|
0004| the court. The motion shall set forth:
|
0005| (1) the date, place of birth and marital
|
0006| status of the child, if known;
|
0007| (2) the grounds for termination and the facts
|
0008| and circumstances supporting the grounds for termination;
|
0009| (3) the names and addresses of the persons or
|
0010| authorized agency or agency officer to whom custody might be
|
0011| transferred;
|
0012| (4) whether the child resides or has resided
|
0013| with a foster parent who desires to adopt this child;
|
0014| (5) whether the motion is in contemplation of
|
0015| adoption;
|
0016| (6) the relationship or legitimate interest of
|
0017| the moving party to the child; and
|
0018| (7) whether the child is subject to the
|
0019| federal Indian Child Welfare Act of 1978 and, if so:
|
0020| (a) the tribal affiliations of the
|
0021| child's parents;
|
0022| (b) the specific actions taken by the
|
0023| moving party to notify the parents' [tribe] tribes and the
|
0024| results of the contacts, including the names, addresses, titles
|
0025| and telephone numbers of the persons contacted. Copies of any
|
0001| correspondence with the tribes shall be attached as exhibits to
|
0002| the petition; and
|
0003| (c) what specific efforts were made to
|
0004| comply with the placement preferences set forth in the federal
|
0005| Indian Child Welfare Act of 1978 or the placement preferences
|
0006| of the appropriate Indian tribes.
|
0007| C. A parent who has not previously been a party to
|
0008| the proceeding shall be named in the motion and shall become a
|
0009| party to the proceeding, unless the court determines that the
|
0010| parent has not established a protected liberty interest in his
|
0011| relationship with the child.
|
0012| D. Notice of the filing of the motion, accompanied
|
0013| by a copy of the motion, shall be served by the moving party on
|
0014| [the parents of the child, any parent who has not previously
|
been made a party to the proceeding] all other parties,
|
0016| including foster parents with whom the child is residing,
|
0017| foster parents with whom the child has resided for six months
|
0018| within the previous twelve months, the custodian of the child,
|
0019| [the department] any person appointed to represent any party
|
0020| [including the child's guardian ad litem] and any other
|
0021| person the court orders. Service shall be in accordance with
|
0022| the Rules of Civil Procedure for the District Courts for the
|
0023| service of [process] motions in a civil action in this
|
0024| state, except that foster parents and attorneys of record in
|
0025| this proceeding [may] shall be served by certified mail.
|
0001| The notice shall state specifically that the person served
|
0002| [must] shall file a written response to the motion within
|
0003| twenty days if the person intends to contest the termination.
|
0004| In any case involving a child subject to the federal Indian
|
0005| Child Welfare Act of 1978, notice shall also be [served upon]
|
0006| sent by certified mail to the tribes of the child's parents
|
0007| and upon any "Indian custodian" as that term is defined in 25
|
0008| U.S.C. Section 1903(6). Further notice shall not be required
|
0009| on a parent who has been provided notice previously pursuant to
|
0010| Section 32A-2-17 NMSA 1978 and who failed to make an
|
0011| appearance.
|
0012| E. If the identity or whereabouts of a person
|
0013| entitled to service are unknown, the moving party shall file a
|
0014| motion for an order granting service by publication supported
|
0015| by the affidavit of the moving party or his agent or attorney
|
0016| detailing the efforts made to locate the person entitled to
|
0017| service. Upon being satisfied that reasonable efforts to
|
0018| locate the person entitled to service have been made and that
|
0019| information as to the identity or whereabouts of the person is
|
0020| still insufficient to effect service in accordance with the
|
0021| Rules of Civil Procedure for the District Courts, the court
|
0022| shall order service by publication pursuant to the Rules of
|
0023| Civil Procedure for the District Courts.
|
0024| F. After a motion for the termination of parental
|
0025| rights is filed, the parent shall be advised of the right to
|
0001| counsel, unless the parent is already represented by counsel.
|
0002| Counsel shall be appointed, upon request, for any parent who is
|
0003| unable to obtain counsel due to financial reasons or, if in the
|
0004| court's discretion, the interests of justice require
|
0005| appointment of counsel.
|
0006| G. The court shall assure that a guardian ad litem
|
0007| represents the child in all proceedings for the termination of
|
0008| parental rights.
|
0009| H. When a motion to terminate parental rights is
|
0010| filed, the moving party shall request a hearing on the motion.
|
0011| The hearing date shall be at least thirty days, but no more
|
0012| than sixty days, after service is effected upon the parties
|
0013| entitled to service under this section.
|
0014| I. In any action for the termination of parental
|
0015| rights brought by a party other than the department and
|
0016| involving a child in the custody of the department, the
|
0017| department may:
|
0018| (1) litigate a motion for the termination of
|
0019| parental rights that was initially filed by another party; or
|
0020| (2) move that the motion for the termination
|
0021| of parental rights be found premature and denied.
|
0022| J. The grounds for any attempted termination shall
|
0023| be proved by clear and convincing evidence. In any proceeding
|
0024| involving a child subject to the federal Indian Child Welfare
|
0025| Act of 1978, the grounds for any attempted termination shall be
|
0001| proved beyond a reasonable doubt and shall meet the
|
0002| requirements set forth in 25 U.S.C. Section 1912(f).
|
0003| K. When the court terminates parental rights, it
|
0004| shall appoint a custodian for the child and fix responsibility
|
0005| for the child's support.
|
0006| L. In any termination proceeding involving a child
|
0007| subject to the federal Indian Child Welfare Act of 1978, the
|
0008| court shall in any termination order make specific findings
|
0009| that the requirements of that act have been met.
|
0010| M. A judgment of the court terminating parental
|
0011| rights divests the parent of all legal rights and privileges
|
0012| and dispenses with both the necessity for the consent to or
|
0013| receipt of notice of any subsequent adoption proceeding
|
0014| concerning the child. A judgment of the court terminating
|
0015| parental rights shall not affect the child's rights of
|
0016| inheritance from and through the child's biological parents."
|
0017| Section 12. Section 32A-4-33 NMSA 1978 (being Laws 1993,
|
0018| Chapter 77, Section 127) is amended to read:
|
0019| "32A-4-33. CONFIDENTIALITY--RECORDS--PENALTY.--
|
0020| A. All records concerning a party to a neglect or
|
0021| abuse proceeding, including social records, diagnostic
|
0022| evaluation, psychiatric or psychological reports, videotapes,
|
0023| transcripts and audio recordings of a child's statement of
|
0024| abuse or medical reports, that are in the possession of the
|
0025| court or the department as the result of a neglect or abuse
|
0001| proceeding or that were produced or obtained during an
|
0002| investigation in anticipation of or incident to a neglect or
|
0003| abuse proceeding shall be confidential and closed to the
|
0004| public.
|
0005| B. The records described in Subsection A of this
|
0006| section shall be open to inspection only by:
|
0007| (1) court personnel;
|
0008| (2) court appointed special advocates;
|
0009| (3) the child's guardian ad litem;
|
0010| (4) department personnel;
|
0011| (5) any local substitute care review board or
|
0012| any agency contracted to implement local substitute care review
|
0013| boards;
|
0014| (6) law enforcement officials, except when use
|
0015| immunity is granted pursuant to Section [32-4-11] 32A-4-11
|
0016| NMSA 1978;
|
0017| (7) district attorneys, except when use
|
0018| immunity is granted pursuant to Section [32-4-11] 32A-4-11
|
0019| NMSA 1978;
|
0020| (8) any state government social services
|
0021| agency in any state;
|
0022| (9) those persons or entities of an Indian
|
0023| tribe specifically authorized to inspect the records pursuant
|
0024| to the federal Indian Child Welfare Act of 1978 or any
|
0025| regulations promulgated thereunder;
|
0001| (10) a foster parent, if the records are those
|
0002| of a child currently placed with that foster parent or of a
|
0003| child being considered for placement with that foster parent
|
0004| and the records concern the social, medical, psychological or
|
0005| educational needs of the child;
|
0006| (11) school personnel involved with the child
|
0007| if the records concern the child's social or educational needs;
|
0008| (12) health care or mental health
|
0009| professionals involved in the evaluation or treatment of the
|
0010| child, the child's parents, guardian, custodian or other family
|
0011| members;
|
0012| (13) protection and advocacy representatives
|
0013| pursuant to the federal Developmental Disabilities Assistance
|
0014| and Bill of Rights Act and the federal Protection and Advocacy
|
0015| for Mentally Ill Individuals Act of 1991;
|
0016| (14) children's safehouse organizations
|
0017| conducting investigatory interviews of children on behalf of a
|
0018| law enforcement agency or the department; and
|
0019| (15) any other person or entity, by order of
|
0020| the court, having a legitimate interest in the case or the work
|
0021| of the court.
|
0022| C. A parent, guardian or legal custodian whose
|
0023| child has been the subject of an investigation of abuse or
|
0024| neglect where no petition has been filed shall have the right
|
0025| to inspect any medical report, psychological evaluation, law
|
0001| enforcement reports or other investigative or diagnostic
|
0002| evaluation; provided that any identifying information related
|
0003| to the reporting party or any other party providing information
|
0004| shall be deleted. The parent, guardian or legal custodian
|
0005| shall also have the right to the results of the investigation
|
0006| and the right to petition the court for full access to all
|
0007| department records and information except those records and
|
0008| information the department finds would be likely to endanger
|
0009| the life or safety of any person providing information to the
|
0010| department.
|
0011| D. If a public official, in the course of his
|
0012| official duties, publicly discloses information regarding an
|
0013| investigation of alleged abuse or neglect of a child or the
|
0014| provision of services to an allegedly abused or neglected
|
0015| child, the secretary of children, youth and families may
|
0016| disclose information to the public provided that the
|
0017| secretary's disclosure of information is not adverse to the
|
0018| best interests of the allegedly abused or neglected child, his
|
0019| siblings or other children in the child's home.
|
0020| [D.] E. Whoever intentionally and unlawfully
|
0021| releases any information or records closed to the public
|
0022| pursuant to the Abuse and Neglect Act or releases or makes
|
0023| other unlawful use of records in violation of that act is
|
0024| guilty of a petty misdemeanor and shall be sentenced pursuant
|
0025| to the provisions of Section 31-19-1 NMSA 1978.
|
0001| [E.] F. When a child's death is allegedly
|
0002| caused by abuse or neglect, the department may release
|
0003| information about the case after consultation with and the
|
0004| consent of the district attorney."
|
0005| Section 13. Section 32A-5-16 NMSA 1978 (being Laws 1993,
|
0006| Chapter 77, Section 143) is amended to read:
|
0007| "32A-5-16. TERMINATION PROCEDURES.--
|
0008| A. A proceeding to terminate parental rights may be
|
0009| initiated in connection with or prior to an adoption
|
0010| proceeding. Venue shall be in the court for the county in
|
0011| which the child is physically present or in the county from
|
0012| which the child was placed. The proceeding may be initiated by
|
0013| any of the following:
|
0014| (1) the department;
|
0015| (2) an agency; or
|
0016| (3) any other person having a legitimate
|
0017| interest in the matter, including a petitioner for adoption,
|
0018| the child's guardian, the child's guardian ad litem in another
|
0019| action, an agency, a foster parent, a relative of the child or
|
0020| the child.
|
0021| B. Any petition for termination of parental rights
|
0022| shall be signed and verified by the petitioner, be filed with
|
0023| the court and set forth:
|
0024| (1) the date, place of birth and marital
|
0025| status of the child, if known;
|
0001| (2) the grounds for termination and the facts
|
0002| and circumstances supporting the grounds for termination;
|
0003| (3) the names and addresses of the person,
|
0004| authorized agency or agency officer to whom custody might be
|
0005| transferred;
|
0006| (4) the basis for the court's jurisdiction;
|
0007| (5) that the petition is in contemplation of
|
0008| adoption;
|
0009| (6) the relationship or legitimate interest of
|
0010| the applicant to the child; and
|
0011| (7) whether the child is an Indian child and,
|
0012| if so:
|
0013| (a) the tribal affiliations of the
|
0014| child's parents;
|
0015| (b) the specific actions taken by the
|
0016| moving party to notify the parents' tribe and the results of
|
0017| the contacts, including the names, addresses, titles and
|
0018| telephone numbers of the persons contacted. Copies of any
|
0019| correspondence with the Indian tribe shall be attached as
|
0020| exhibits to the petition; and
|
0021| (c) what specific efforts were made to
|
0022| comply with the placement preferences set forth in the federal
|
0023| Indian Child Welfare Act of 1978 or the placement preferences
|
0024| of the appropriate Indian tribes.
|
0025| C. Notice of the filing of the petition,
|
0001| accompanied by a copy of the petition, shall be served by the
|
0002| petitioner on the parents of the child, the child's guardian,
|
0003| the legal custodian of the child, the person with whom the
|
0004| child is residing, any person with whom the child has resided
|
0005| within the past six months and the department. Service shall
|
0006| be in accordance with the Rules of Civil Procedure for the
|
0007| District Courts for the service of process in a civil action in
|
0008| this state, with the exception that the department may be
|
0009| served by certified mail. The notice shall state specifically
|
0010| that the person served [must] shall file a written response
|
0011| to the petition within twenty days if the person intends to
|
0012| contest the termination. In any case involving an Indian
|
0013| child, notice shall also be served on the child's Indian tribe
|
0014| pursuant to the federal Indian Child Welfare Act of 1978.
|
0015| D. If the identification or whereabouts of a parent
|
0016| is unknown, the petitioner shall file a motion for an order
|
0017| granting service by publication or an order stating that
|
0018| service by publication is not required. A motion for an order
|
0019| granting service by publication shall be supported by the
|
0020| affidavit of the petitioner, the agency or the petitioner's
|
0021| attorney detailing the efforts made to locate the parent. Upon
|
0022| being satisfied that reasonable efforts to locate the parent
|
0023| have been made and that information as to the identity or
|
0024| whereabouts of the parent is still insufficient to effect
|
0025| service in accordance with SCRA, Rule 1-004, the court shall
|
0001| order service by publication or order that publication is not
|
0002| required because the parent's consent is not required pursuant
|
0003| to the provisions of Section 32A-5-19 NMSA 1978.
|
0004| E. The court shall, upon request, appoint counsel
|
0005| for any parent who is unable to obtain counsel for financial
|
0006| reasons or if, in the court's discretion, appointment of
|
0007| counsel is required in the interest of justice. Payment for
|
0008| the appointed counsel shall be made by the petitioner.
|
0009| F. The court shall appoint a guardian ad litem for
|
0010| the child in all contested proceedings for termination of
|
0011| parental rights.
|
0012| G. Within thirty days after the filing of a
|
0013| petition to terminate parental rights, the petitioner shall
|
0014| request a hearing on the petition. The hearing date shall be
|
0015| at least thirty days after service is effected upon the parent
|
0016| of the child or completion of publication.
|
0017| H. The grounds for any attempted termination shall
|
0018| be proved by clear and convincing evidence. In any proceeding
|
0019| involving an Indian child, the grounds for any attempted
|
0020| termination shall be proved beyond a reasonable doubt and meet
|
0021| the requirements set forth in the federal Indian Child Welfare
|
0022| Act of 1978.
|
0023| I. If the court terminates parental rights, it
|
0024| shall appoint a custodian for the child. Upon entering an
|
0025| order terminating the parental rights of a parent, the court
|
0001| may commit the child to the custody of the department, the
|
0002| petitioner or an agency willing to accept custody for the
|
0003| purpose of placing the child for adoption. In any termination
|
0004| proceeding involving an Indian child, the court shall, in any
|
0005| termination order, make specific findings that the requirements
|
0006| of the federal Indian Child Welfare Act of 1978 were met.
|
0007| J. A judgment of the court terminating parental
|
0008| rights divests the parent of all legal rights. Termination of
|
0009| parental rights shall not affect the child's right of
|
0010| inheritance through the former parent."
|
0011| Section 14. Section 32A-5-19 NMSA 1978 (being Laws 1993,
|
0012| Chapter 77, Section 146) is amended to read:
|
0013| "32A-5-19. PERSONS WHOSE CONSENTS OR RELINQUISHMENTS ARE
|
0014| NOT REQUIRED.--The consent to adoption or relinquishment of
|
0015| parental rights required pursuant to the provisions of the
|
0016| Adoption Act shall not be required from:
|
0017| A. a parent whose rights with reference to the
|
0018| adoptee have been terminated pursuant to law;
|
0019| B. a parent who has relinquished the child to an
|
0020| agency for an adoption;
|
0021| C. a biological father of an adoptee conceived as a
|
0022| result of rape or incest;
|
0023| D. any person who has failed to respond when given
|
0024| notice pursuant to the provisions of Section [32-5-27]
|
0025| 32A-5-27 NMSA 1978; [or]
|
0001| E. any putative father who has failed to register
|
0002| with the putative father registry within [90] ninety days
|
0003| of the child's birth; or
|
0004| F. any alleged father."
|
0005| Section 15. Section 32A-5-40 NMSA 1978 (being Laws 1993,
|
0006| Chapter 77, Section 167, as amended) is amended to read:
|
0007| "32A-5-40. POST-DECREE OF ADOPTION ACCESS TO RECORDS.--
|
0008| A. After the decree of adoption has been entered,
|
0009| all court files containing records of judicial proceedings
|
0010| conducted pursuant to the provisions of the Adoption Act and
|
0011| records submitted to the court in the proceedings shall be kept
|
0012| in separate locked files withheld from public inspection. Upon
|
0013| application to the clerk of the court, the records shall be
|
0014| open to inspection by [a former parent if the adoptee is
|
eighteen years of age or older, by] an adoptee if the adoptee
|
0016| is eighteen years of age or older at the time application is
|
0017| made for inspection, by the adoptive parent if the adoptee is
|
0018| under eighteen years of age at the time application is made for
|
0019| inspection, by the attorney of any party, by any agency that
|
0020| has exercised guardianship over or legal custody of a child who
|
0021| was the adoptee in the particular proceeding, [or] by the
|
0022| department or by an adoptee's sibling; provided that the
|
0023| identity of the former parents and of the adoptee shall be kept
|
0024| confidential unless the former parents and the adoptee have
|
0025| consented to the release of identity. In the absence of
|
0001| consent to release identity, the inspection shall be limited to
|
0002| the following nonidentifying information:
|
0003| (1) the health and medical histories of the
|
0004| adoptee's biological parents;
|
0005| (2) the health and medical history of the
|
0006| adoptee;
|
0007| (3) the adoptee's general family background,
|
0008| including ancestral information, without name references or
|
0009| geographical designations;
|
0010| (4) physical descriptions; and
|
0011| (5) the length of time the adoptee was in the
|
0012| care and custody of persons other than the petitioner.
|
0013| B. After the entry of the decree of adoption, at
|
0014| any time, a former parent may file with the court, with the
|
0015| placing agency or with the department:
|
0016| (1) a consent or refusal or an amended consent
|
0017| or refusal to be contacted;
|
0018| (2) a release of the former parent's identity
|
0019| to the adoptee if the adoptee is eighteen years of age or older
|
0020| or to the adoptive parent if the adoptee is under eighteen
|
0021| years of age; or
|
0022| (3) information regarding the former parent's
|
0023| location or changes in background information.
|
0024| C. The consent or refusal referred to in Subsection
|
0025| B of this section shall be honored by the court, the placing
|
0001| agency or the department, unless for good cause the court
|
0002| orders to the contrary.
|
0003| D. At any time, an adoptee who is eighteen years of
|
0004| age or older may file with the court, a placing agency or the
|
0005| department:
|
0006| (1) information regarding the adoptee's
|
0007| location; or
|
0008| (2) a consent or refusal regarding opening of
|
0009| the adoptee's adoption file to the adoptee's former parents.
|
0010| E. If mutual authorizations for release of
|
0011| identifying information by the parties are not available, an
|
0012| adoptee who is eighteen years of age or older, the biological
|
0013| parents if the adoptee is eighteen years of age or older or the
|
0014| adoptive parents if the adoptee is under the age of eighteen
|
0015| years may file a motion with the court to obtain the release of
|
0016| identifying information for good cause shown. When hearing the
|
0017| motion, the court shall give primary consideration to the best
|
0018| interests of the adoptee, but shall also give due consideration
|
0019| to the interests of the members of the adoptee's former and
|
0020| adoptive families. In determining whether good cause exists
|
0021| for the release of identifying information, the court shall
|
0022| consider:
|
0023| (1) the reason the information is sought;
|
0024| (2) any procedure available for satisfying the
|
0025| petitioner's request without disclosing the name or identity of
|
0001| another individual, including appointment of a confidential
|
0002| intermediary to contact the individual and request specific
|
0003| information;
|
0004| (3) whether the individual about whom
|
0005| identifying information is sought is alive;
|
0006| (4) the preference, to the extent known, of
|
0007| the adoptee, the adoptive parents, the former parents and other
|
0008| members of the adoptee's former and adoptive families and the
|
0009| likely effect of disclosure on those individuals;
|
0010| (5) the age, maturity and expressed needs of
|
0011| the adoptee;
|
0012| (6) the report or recommendation of any
|
0013| individual appointed by the court to assess the request for
|
0014| identifying information; and
|
0015| (7) any other factor relevant to an assessment
|
0016| of whether the benefit to the adoptee of releasing the
|
0017| information sought will be greater than the benefit to any
|
0018| other individual of not releasing the information.
|
0019| F. An adoptee shall have the right, for the purpose
|
0020| of enrolling in the adoptee's tribe of origin, to access
|
0021| information kept by the department. Information needed by an
|
0022| adoptee to enroll in his tribe of origin may be requested from
|
0023| the department by the following persons:
|
0024| (1) the adoptee, after he reaches eighteen
|
0025| years of age;
|
0001| (2) when the adoptee is a child, his adoptive
|
0002| parent or guardian; or
|
0003| (3) an adoptee's descendant or, if the
|
0004| adoptee's descendant is a child, an adult representative for
|
0005| the descendant.
|
0006| G. When the department receives a request for
|
0007| information regarding an adoptee's tribe of origin, the
|
0008| department shall examine its records to determine if the
|
0009| adoptee is of Indian descent. If the department establishes
|
0010| that an adoptee is of Indian descent, the department shall:
|
0011| (1) provide the requestor with the tribal
|
0012| affiliation of the adoptee's biological parents;
|
0013| (2) submit to the tribe information necessary
|
0014| to establish tribal enrollment for the adoptee and to protect
|
0015| any rights flowing from the adoptee's tribal relationship; and
|
0016| (3) provide notice to the requestor of the
|
0017| department's submission of information to the adoptee's tribe."
|
0018|
|
0019| Section 16. Section 32A-5-41 NMSA 1978 (being Laws 1993,
|
0020| Chapter 77, Section 168, as amended) is amended to read:
|
0021| "32A-5-41. APPOINTMENT OF CONFIDENTIAL INTERMEDIARY.--
|
0022| A. The court may appoint a confidential
|
0023| intermediary to ascertain whether an individual is willing to
|
0024| be contacted, is willing to release his name or identity or is
|
0025| willing to meet or otherwise communicate about any condition
|
0001| that may affect the moving party's physical or mental health,
|
0002| upon petition to the court by:
|
0003| (1) an adoptee who is eighteen years of age or
|
0004| older;
|
0005| (2) an adoptive parent of an adoptee who is
|
0006| less than eighteen years of age; [or]
|
0007| (3) an adoptee's former parent, when the
|
0008| adoptee is eighteen years of age or older; or
|
0009| (4) an adoptee's sibling.
|
0010| B. The confidential intermediary shall make a
|
0011| reasonable effort to determine if the individual whose identity
|
0012| is sought by the petitioner has filed a signed document
|
0013| authorizing or refusing to authorize the release of the
|
0014| individual's name or identity.
|
0015| C. When the confidential intermediary finds a
|
0016| signed authorization for a party to be contacted or for the
|
0017| release of identifying information, the intermediary shall
|
0018| release that information to the petitioner. Upon the
|
0019| petitioner's written request, the intermediary may assist the
|
0020| petitioner in locating the individual who authorized the
|
0021| release of identifying information, in ascertaining whether the
|
0022| individual is willing to meet or communicate with the
|
0023| petitioner and in facilitating a meeting or other
|
0024| communication.
|
0025| D. When the confidential intermediary finds a
|
0001| signed refusal to authorize the release of identifying
|
0002| information, the intermediary shall report this to the
|
0003| petitioner and the court and shall not attempt to locate or
|
0004| contact the individual who has refused to authorize contact or
|
0005| the release of identifying information. The petitioner may
|
0006| then withdraw the petition or request the release of
|
0007| identifying information for good cause shown, pursuant to the
|
0008| provisions of Section 32A-5-40 NMSA 1978.
|
0009| E. When the confidential intermediary does not find
|
0010| any documents concerning the release of identifying information
|
0011| or if the intermediary finds a document indicating that an
|
0012| individual whose identity is sought by the petitioner is
|
0013| undecided about whether to release identifying information, the
|
0014| intermediary shall make a reasonable search for and discreetly
|
0015| contact the individual to ascertain whether the individual is
|
0016| willing to release information to the petitioner or willing to
|
0017| meet or communicate with the petitioner, whom the intermediary
|
0018| may describe to the individual only in general, nonidentifying
|
0019| terms. When the individual consents in writing to the release
|
0020| of information, the intermediary shall release the information
|
0021| to the petitioner, and upon the mutual written request and
|
0022| consent of the petitioner and the individual, the intermediary
|
0023| shall facilitate a meeting or other communication between the
|
0024| petitioner and the individual. If the individual refuses to
|
0025| authorize the release of information sought by the petitioner,
|
0001| the intermediary shall report this to the petitioner and the
|
0002| court and the petitioner may withdraw the motion or file a
|
0003| motion with the court for an order to release identifying
|
0004| information for good cause shown, pursuant to provisions of
|
0005| Section 32A-5-40 NMSA 1978.
|
0006| F. When an individual sought by the confidential
|
0007| intermediary is deceased, the intermediary shall report this to
|
0008| the petitioner and the court and, upon the petitioner's
|
0009| request, the court shall determine on the basis of the factors
|
0010| listed in Section 32A-5-40 NMSA 1978 whether good cause exists
|
0011| to release identifying information about the individual to the
|
0012| petitioner.
|
0013| G. When an individual sought by the confidential
|
0014| intermediary cannot be located within a year, the intermediary
|
0015| shall report this to the petitioner and the court. The court
|
0016| may authorize an additional search for a specified period of
|
0017| time or determine on the basis of the factors listed in Section
|
0018| 32A-5-40 NMSA 1978 whether good cause exists to release
|
0019| identifying information about the individual to the petitioner.
|
0020| H. A confidential intermediary may charge the
|
0021| petitioner for actual expenses incurred in providing a service
|
0022| requested under this section. Upon motion by the intermediary,
|
0023| the court may authorize a reasonable fee in addition to the
|
0024| expenses.
|
0025| I. A confidential intermediary shall complete
|
0001| training provided by the department or any other entity
|
0002| approved by the court and shall file an oath of confidentiality
|
0003| in every court in which the intermediary expects to serve.
|
0004| J. The confidential intermediary oath shall state:
|
0005| "I,__________________________, signing under penalty of
|
0006| perjury, affirm that I have completed the requisite training
|
0007| for a confidential intermediary in this state.
|
0008| I will not disclose to the petitioner, directly or
|
0009| indirectly, any identifying information in sealed records
|
0010| except under the conditions specified in this section.
|
0011| I will conduct a reasonable search for an individual being
|
0012| sought and make a discreet and confidential inquiry as to
|
0013| whether the individual consents to the release of identifying
|
0014| or medical information to the petitioner or to meeting or
|
0015| communicating with the petitioner. I will report to the
|
0016| petitioner or the court the results of my search and inquiry,
|
0017| along with any signed request or consent I receive from the
|
0018| individual.
|
0019| If the individual and the petitioner request and consent
|
0020| in writing to meet or communicate with each other, I will act
|
0021| in accordance with the instructions of the petitioner or the
|
0022| court to facilitate any meeting or communication between them.
|
0023| I will not charge or accept any fee for my services except
|
0024| for reimbursement from the petitioner for actual expenses
|
0025| incurred in performing my services or as authorized by the
|
0001| court.
|
0002| I recognize that unauthorized release of information is a
|
0003| violation of the Adoption Act and subjects me to penalties
|
0004| pursuant to the provisions of Section 32A-5-42 NMSA 1978 and
|
0005| may subject me to being found in contempt of court with
|
0006| penalties, dismissal by the court and civil liability."."
|
0007| Section 17. Section 32A-6-11.1 NMSA 1978 (being Laws
|
0008| 1995, Chapter 207, Section 13) is amended to read:
|
0009| "32A-6-11.1. CONSENT TO PLACEMENT IN A RESIDENTIAL
|
0010| TREATMENT OR HABILITATION PROGRAM--CHILDREN YOUNGER THAN
|
0011| FOURTEEN YEARS OF AGE.--
|
0012| A. A child younger than fourteen years of age shall
|
0013| not receive residential treatment for mental disorders or
|
0014| habilitation for developmental disabilities, except as provided
|
0015| in this section or Section [15 of the Children's Mental Health
|
and Developmental Disabilities Act] 32A-6-13 NMSA 1978.
|
0017| B. A child younger than fourteen years of age may
|
0018| be admitted to a residential treatment or habilitation program
|
0019| with the informed consent of the child's parent, guardian or
|
0020| legal custodian for a period not to exceed sixty days, subject
|
0021| to the requirements of this section.
|
0022| C. In order to admit a child younger than fourteen
|
0023| years of age to a residential treatment or habilitation
|
0024| program, the child's parent, guardian or legal custodian shall
|
0025| knowingly and voluntarily execute a consent to admission
|
0001| document prior to the child's admission. The consent to
|
0002| admission document shall be in a form designated by the supreme
|
0003| court. The consent to admission document shall include a clear
|
0004| statement of the parent's, guardian's or legal custodian's
|
0005| right to voluntarily consent to or refuse the child's
|
0006| admission; the parent's, guardian's or legal custodian's right
|
0007| to request the child's immediate discharge from the residential
|
0008| treatment program at any time; and the parent's, guardian's or
|
0009| legal custodian's rights when the parent, guardian or legal
|
0010| custodian requests the child's discharge and the child's
|
0011| physician, licensed psychologist or the director of the
|
0012| residential treatment facility determines that the child needs
|
0013| continued treatment. The facility shall ensure that each
|
0014| statement is clearly explained in the child's and parent's,
|
0015| guardian's or legal custodian's primary language, if that is
|
0016| their language of preference, and in a manner appropriate to
|
0017| the child's and parent's, guardian's or legal custodian's
|
0018| developmental abilities. Each statement shall be initialed by
|
0019| the child's parent, guardian or legal custodian.
|
0020| D. The parent's, guardian's or legal custodian's
|
0021| executed consent to admission document shall be filed with the
|
0022| child's hospital records within twenty-four hours of the time
|
0023| of admission.
|
0024| [E. Upon the filing of the parent's, guardian's or
|
legal custodian's consent to admission document in the child's
|
hospital records, the director of the residential treatment or
|
habilitation program or the director's designee shall, on the
|
next business day following the child's admission, notify the
|
resource consultant of the admission and provide the resource
|
consultant with the child's name, date of birth and the date
|
and place of admission. The resource consultant shall make
|
reasonable efforts to contact the child's parent, guardian or
|
legal custodian within three days of being notified of the
|
child's admission.
|
F.] E. Upon the filing of the parent's,
|
0011| guardian's or legal custodian's consent to admission document
|
0012| in the child's hospital records, the director of the
|
0013| residential treatment or habilitation program or the director's
|
0014| designee shall, on the next business day following the child's
|
0015| admission, notify the district court or the special
|
0016| commissioner regarding the admission and provide the child's
|
0017| name, date of birth and the date and place of admission. The
|
0018| court or special commissioner shall, upon receipt of notice
|
0019| regarding a child's admission to a residential treatment or
|
0020| habilitation program, establish a sequestered court file.
|
0021| [G.] F. The director of a residential treatment
|
0022| or habilitation program or the director's designee shall, on
|
0023| the next business day following the child's admission, petition
|
0024| the court to appoint a guardian ad litem for the child. When
|
0025| the court receives the petition, the court shall appoint a
|
0001| guardian ad litem. The court may order the parent to reimburse
|
0002| the state pursuant to the provisions of the Children's Code.
|
0003| [H.] G. Within seven days of a child's
|
0004| admission to a residential treatment or habilitation program, a
|
0005| guardian ad litem, representing the child's best interests and
|
0006| in accordance with the provisions of the Children's Mental
|
0007| Health and Developmental Disabilities Act, shall meet with the
|
0008| child, the child's parent, guardian or legal custodian and the
|
0009| child's clinician. The guardian ad litem shall determine the
|
0010| following:
|
0011| (1) whether the child's parent, guardian or
|
0012| legal custodian understands and consents to the child's
|
0013| admission to a residential treatment or habilitation program;
|
0014| (2) whether the admission is in the child's
|
0015| best interests; and
|
0016| (3) whether the admission is appropriate for
|
0017| the child and is consistent with the least drastic means
|
0018| principle.
|
0019| [I.] H. If a guardian ad litem determines that
|
0020| the child's parent, guardian or legal custodian understands and
|
0021| consents to the child's admission and that the admission is in
|
0022| the child's best interests, is appropriate for the child and is
|
0023| consistent with the least drastic means principle, the guardian
|
0024| ad litem shall so certify on a form designated by the supreme
|
0025| court. The form, when completed by the guardian ad litem,
|
0001| shall be filed in the child's patient record kept by the
|
0002| residential treatment or habilitation program, and a copy shall
|
0003| be forwarded to the court or special commissioner within seven
|
0004| days of the child's admission. The guardian ad litem's
|
0005| statement shall not identify the child by name.
|
0006| [J.] I. Upon reaching the age of majority, a
|
0007| child who was admitted to a residential treatment or
|
0008| habilitation program pursuant to this section may petition the
|
0009| district court for the records of the district court regarding
|
0010| all matters pertinent to the child's admission to a residential
|
0011| treatment or habilitation program. The district court, upon
|
0012| receipt of the petition and upon a determination that the
|
0013| petitioner is in fact a child who was admitted to a residential
|
0014| treatment or habilitation program, shall provide all court
|
0015| records regarding the admission to the petitioner, including
|
0016| all copies in the court's possession.
|
0017| [K.] J. Any parent, guardian or legal custodian
|
0018| who consents to admission of his child to a residential
|
0019| treatment or habilitation program has the right to request the
|
0020| child's immediate discharge from the residential treatment or
|
0021| habilitation program, subject to the provisions of this
|
0022| section. If a child's parent, guardian or legal custodian
|
0023| informs the director, a physician or any other member of the
|
0024| residential treatment or habilitation program staff that the
|
0025| parent, guardian or legal custodian desires the child to be
|
0001| discharged from the program, the director, physician or other
|
0002| staff shall provide for the child's immediate discharge and
|
0003| remit the child to the parent's, guardian's or legal
|
0004| custodian's care. The residential treatment or habilitation
|
0005| program shall also notify the child's guardian ad litem. A
|
0006| child whose parent, guardian or legal custodian requests his
|
0007| immediate discharge shall be discharged, except when the
|
0008| director of the residential treatment program, a physician or a
|
0009| licensed psychologist determines that the child requires
|
0010| continued treatment and that the child meets the criteria for
|
0011| involuntary residential treatment. In that event, the
|
0012| director, physician or licensed psychologist shall, on the
|
0013| first business day following the child's parent's, guardian's
|
0014| or legal custodian's request for release of the child from the
|
0015| program, request that the children's court attorney initiate
|
0016| involuntary residential treatment proceedings. The children's
|
0017| court attorney may petition the court for such proceedings.
|
0018| The child has a right to a hearing regarding his continued
|
0019| treatment within seven days of the request for release.
|
0020| [L.] K. A child who is admitted to a
|
0021| residential treatment or habilitation program pursuant to this
|
0022| section shall have his admission reviewed at the end of the
|
0023| sixty-day period following the date of the child's initial
|
0024| admission to the program. The child's physician or licensed
|
0025| psychologist shall review the child's residential treatment or
|
0001| habilitation program and determine whether it is in the best
|
0002| interests of the child to continue the admission. If the
|
0003| child's physician or licensed psychologist concludes that
|
0004| continuation of the residential treatment or habilitation
|
0005| program is in the child's best interests, the child's clinician
|
0006| shall so state in a form to be filed in the child's patient
|
0007| records. The residential treatment or habilitation program
|
0008| shall notify the guardian ad litem for the child at least seven
|
0009| days prior to the date that the sixty-day period is to end or,
|
0010| if necessary, request a guardian ad litem pursuant to the
|
0011| provisions of the Children's Mental Health and Developmental
|
0012| Disabilities Act. The guardian ad litem shall then personally
|
0013| meet with the child, the child's parent, guardian or legal
|
0014| custodian and the child's clinician and ensure that the child's
|
0015| parent, guardian or legal custodian understands and consents to
|
0016| the child's continued admission to the residential treatment or
|
0017| habilitation program. If the guardian ad litem determines that
|
0018| the child's parent, guardian or legal custodian understands and
|
0019| consents to the child's continued admission to the residential
|
0020| treatment or habilitation program, that the continued admission
|
0021| is in the child's best interest, that the placement continues
|
0022| to be appropriate for the child and consistent with the least
|
0023| drastic means principle and that the clinician has recommended
|
0024| the child's continued stay in the program, the guardian ad
|
0025| litem shall so certify on a form designated by the supreme
|
0001| court. The disposition of these forms shall be as set forth in
|
0002| this section, with one copy going in the child's patient record
|
0003| and the other being sent to the district court in a manner that
|
0004| preserves the child's anonymity. This procedure shall take
|
0005| place every sixty days following the child's last admission or
|
0006| a guardian ad litem's certification, whichever occurs first.
|
0007| [M.] L. When a guardian ad litem determines
|
0008| that the child's parent, guardian or legal custodian does not
|
0009| understand or consent to the child's admission to a residential
|
0010| treatment or habilitation program, that the admission is not in
|
0011| the child's best interests, that the placement is inappropriate
|
0012| for the child or is inconsistent with the least drastic means
|
0013| principle or that the child's clinician has not recommended a
|
0014| continued stay by the child in the residential treatment or
|
0015| habilitation program, the child shall be released or
|
0016| involuntary placement procedures shall be initiated.
|
0017| [N.] M. If the child's parent, guardian or
|
0018| legal custodian is unavailable to take custody of the child and
|
0019| immediate discharge of the child would endanger the child, the
|
0020| residential treatment or habilitation program may detain the
|
0021| child until a safe and orderly discharge is possible. If the
|
0022| child's family refuses to take physical custody of the child,
|
0023| the residential treatment or habilitation program shall refer
|
0024| the case to the department for an abuse and neglect or family
|
0025| in need of court-ordered services investigation. The
|
0001| department may take the child into protective custody pursuant
|
0002| to the provisions of the Abuse and Neglect Act or the Family in
|
0003| Need of Services Act."
|
0004| Section 18. Section 32A-6-12 NMSA 1978 (being Laws 1995,
|
0005| Chapter 207, Section 14) is amended to read:
|
0006| "32A-6-12. VOLUNTARY RESIDENTIAL TREATMENT OR
|
0007| HABILITATION.--
|
0008| A. A child fourteen years of age or older shall not
|
0009| receive treatment for mental disorders or habilitation for
|
0010| developmental disabilities on a voluntary residential basis,
|
0011| except as provided in this section.
|
0012| B. Any child fourteen years of age or older may
|
0013| voluntarily admit himself to a residential treatment or
|
0014| habilitation program, with the informed consent of his parent,
|
0015| guardian or legal custodian, for a period not to exceed sixty
|
0016| days, subject to the requirements of this section.
|
0017| C. To have a child voluntarily admitted to a
|
0018| residential treatment or habilitation program, the child and
|
0019| the child's parent, guardian or legal custodian shall knowingly
|
0020| and voluntarily execute, prior to admission, a child's
|
0021| voluntary consent to admission document. The document shall
|
0022| include a clear statement of the child's right to voluntarily
|
0023| consent or refuse to consent to his admission; the child's
|
0024| right to request an immediate discharge from the residential
|
0025| treatment program at any time; and the child's rights when he
|
0001| requests a discharge and his physician, licensed psychologist
|
0002| or the director of the residential treatment facility
|
0003| determines the child needs continued treatment. The facility
|
0004| shall ensure that each statement is clearly explained in the
|
0005| child's and parent's, guardian's or legal custodian's primary
|
0006| language, if that is their language of preference, and in a
|
0007| manner appropriate to the child's and parent's, guardian's or
|
0008| legal custodian's developmental abilities, and each statement
|
0009| shall be initialed by the child and his parent, guardian or
|
0010| legal custodian.
|
0011| D. The child's parent, guardian or legal custodian
|
0012| shall obtain an independent attorney for the child and shall
|
0013| notify the residential treatment facility of that attorney's
|
0014| name within seventy-two hours of the child's voluntary
|
0015| admission. Prior to admission, the residential treatment
|
0016| facility shall inform the child's parent, guardian or legal
|
0017| custodian of the duty to obtain an independent attorney for the
|
0018| child within seventy-two hours. If the child's parent,
|
0019| guardian or legal custodian is indigent, the parent, guardian
|
0020| or legal custodian may petition the court to appoint an
|
0021| attorney for the child.
|
0022| E. The child's executed voluntary consent to
|
0023| admission document shall be filed in the patient's hospital
|
0024| record within twenty-four hours of the time of admission.
|
0025| [F. Upon the filing of the child's consent to
|
admission document in the child's hospital record, the director
|
of the residential treatment or habilitation program or the
|
director's designee shall, on the next business day following
|
the child's admission, notify the resource consultant of the
|
admission and provide the child's name, date of birth, the date
|
and place of admission. The resource consultant shall meet
|
with the child and make reasonable efforts to contact the
|
child's parent, guardian or legal custodian within three days
|
of being notified of the child's admission.
|
G.] F. Upon the filing of the child's voluntary
|
0011| consent to admission document in the patient's hospital record,
|
0012| the director of the residential treatment or habilitation
|
0013| program or the director's designee shall, on the next business
|
0014| day following the child's admission, notify the district court
|
0015| or the special commissioner of the admission, giving the
|
0016| child's name, date of birth and the date and place of
|
0017| admission. The court or special commissioner shall, upon
|
0018| receipt of notice of a child's voluntary admission to a
|
0019| residential treatment program, establish a sequestered court
|
0020| file.
|
0021| [H.] G. If within seventy-two hours of the
|
0022| child's voluntary admission the child has not met with an
|
0023| independent attorney and the child's parent, guardian or legal
|
0024| custodian has not notified the residential treatment or
|
0025| habilitation program of the name of the child's independent
|
0001| attorney, the residential treatment or habilitation program
|
0002| shall, during the next business day, petition the court to
|
0003| appoint an attorney. When the court receives the petition, the
|
0004| court shall appoint an attorney. The court may order the
|
0005| parent to reimburse the state pursuant to the provisions of the
|
0006| Children's Code.
|
0007| [I.] H. If within seventy-two hours of the
|
0008| child's voluntary admission the child has met with an
|
0009| independent attorney or the child's parent, guardian or legal
|
0010| custodian has notified the residential treatment or
|
0011| habilitation program of the name of the child's independent
|
0012| attorney, the residential treatment or habilitation program
|
0013| shall, during the next business day, notify the court or the
|
0014| special commissioner of the name of the child's independent
|
0015| attorney.
|
0016| [J.] I. Within seven days of the admission, an
|
0017| attorney representing the child pursuant to the provisions of
|
0018| the Children's Mental Health and Developmental Disabilities Act
|
0019| shall meet with the child. At the meeting with the child, the
|
0020| attorney shall explain to the child the following:
|
0021| (1) the child's right to an attorney;
|
0022| (2) the child's right to terminate his
|
0023| voluntary admission and the procedures to effect termination;
|
0024| (3) the effect of terminating the child's
|
0025| voluntary admission and options of the physician and other
|
0001| interested parties to the petition for an involuntary
|
0002| admission; and
|
0003| (4) the child's rights under the provisions of
|
0004| the Children's Mental Health and Developmental Disabilities
|
0005| Act, including the right to:
|
0006| (a) legal representation;
|
0007| (b) a presumption of competence;
|
0008| (c) receive daily visitors of the
|
0009| child's choice;
|
0010| (d) receive and send uncensored mail;
|
0011| (e) have access to telephones;
|
0012| (f) follow or abstain from the practice
|
0013| of religion;
|
0014| (g) a humane and safe environment;
|
0015| (h) physical exercise and outdoor
|
0016| exercise;
|
0017| (i) a nourishing, well-balanced, varied
|
0018| and appetizing diet;
|
0019| (j) medical treatment;
|
0020| (k) educational services;
|
0021| (l) freedom from unnecessary or
|
0022| excessive medication;
|
0023| (m) individualized treatment and
|
0024| habilitation; and
|
0025| (n) participation in the development of
|
0001| the individualized treatment plan and access to that plan on
|
0002| request.
|
0003| [K.] J. If the attorney determines that the
|
0004| child understands his rights and that the child voluntarily and
|
0005| knowingly desires to remain as a patient in a residential
|
0006| treatment or habilitation program, the attorney shall so
|
0007| certify on a form designated by the supreme court. The form,
|
0008| when completed by the attorney, shall be filed in the child's
|
0009| patient record at the residential treatment or habilitation
|
0010| program facility, and a copy shall be forwarded to the court or
|
0011| special commissioner within seven days of the child's
|
0012| admission. The attorney's statement shall not identify the
|
0013| child by name.
|
0014| [L.] K. Upon reaching the age of majority, a
|
0015| child who was a voluntary admittee to a residential treatment
|
0016| or habilitation program may petition the district court for the
|
0017| records of the court regarding all matters pertinent to his
|
0018| voluntary admission to a residential treatment or habilitation
|
0019| program. The court, upon receipt of the petition and upon a
|
0020| determination that the petitioner was in fact the child who was
|
0021| a voluntary [admitted] admittee to a residential treatment
|
0022| or habilitation program, shall give all court records regarding
|
0023| the admission to the petitioner, including all copies in the
|
0024| court's possession.
|
0025| [M.] L. Any child voluntarily admitted to a
|
0001| residential treatment or habilitation program has the right to
|
0002| an immediate discharge from the residential treatment or
|
0003| habilitation program upon his request, except as provided in
|
0004| this section. If a child informs the director, physician or
|
0005| any other member of the residential treatment or habilitation
|
0006| program staff that he desires to be discharged from the
|
0007| voluntary program, the director, physician or other staff
|
0008| member shall provide for the child's immediate discharge. The
|
0009| residential treatment or habilitation program shall not require
|
0010| that the child's request be in writing. Upon the request, the
|
0011| residential treatment or habilitation program shall notify the
|
0012| child's parent, guardian or legal custodian to take custody of
|
0013| the child and remit the child to the parent's, guardian's or
|
0014| legal custodian's care. The residential treatment or
|
0015| habilitation program shall also notify the child's attorney.
|
0016| If the child's parent, guardian or legal custodian is
|
0017| unavailable to take custody of the child and immediate
|
0018| discharge of the child would endanger the child, the
|
0019| residential treatment or habilitation program may detain the
|
0020| child until a safe and orderly discharge is possible. If the
|
0021| child's family refuses to take physical custody of the child,
|
0022| the residential treatment or habilitation program shall refer
|
0023| the case to the department for an abuse and neglect or family
|
0024| in need of court-ordered services investigation. The
|
0025| department may take the child into protective custody pursuant
|
0001| to the provisions of the Abuse and Neglect Act or the Family in
|
0002| Need of Services Act. A child requesting immediate discharge
|
0003| shall be discharged, except in those situations when the
|
0004| director of the residential treatment or habilitation program,
|
0005| a physician or a licensed psychologist determines that the
|
0006| child requires continued treatment and that the child meets the
|
0007| criteria for involuntary residential treatment as otherwise
|
0008| provided under the Children's Mental Health and Developmental
|
0009| Disabilities Act. In that event, the director, physician or
|
0010| licensed psychologist, after making the determination, shall,
|
0011| on the first business day following the child's request for
|
0012| release from the voluntary program, request that the children's
|
0013| court attorney initiate involuntary placement proceedings. The
|
0014| children's court attorney may petition for such a placement.
|
0015| The child has a right to a hearing on his continued treatment
|
0016| within seven days of his request for release.
|
0017| [N.] M. A child who is a voluntary admittee to
|
0018| a residential treatment or habilitation program shall have his
|
0019| voluntary admission reviewed at the end of a sixty-day period
|
0020| from the date of his initial admission to the program. The
|
0021| review shall be accomplished by having the child's physician or
|
0022| licensed psychologist review the child's treatment and
|
0023| determine whether it would be in the best interests of the
|
0024| child to continue the voluntary admission. If the child's
|
0025| physician or licensed psychologist concludes that continuation
|
0001| of treatment is in the child's best interests, the child's
|
0002| clinician shall so state in a form to be filed in the child's
|
0003| patient record. The residential treatment or habilitation
|
0004| program shall notify the attorney for the child at least seven
|
0005| days prior to the date that the sixty-day period is to end or,
|
0006| if necessary, request an attorney pursuant to the provisions of
|
0007| the Children's Mental Health and Developmental Disabilities
|
0008| Act. The attorney shall then personally meet with the child
|
0009| and ensure that the child understands his rights as set forth
|
0010| in this section, that the child understands the method for
|
0011| voluntary termination of his admission and that the child
|
0012| knowingly and voluntarily consents to his continued treatment.
|
0013| If the attorney determines that the child understands these
|
0014| rights and that the child voluntarily and knowingly desires to
|
0015| remain as a patient in the residential treatment or
|
0016| habilitation program and that the clinician has recommended the
|
0017| continued stay in the program, the attorney shall so certify on
|
0018| a form designated by the supreme court. The disposition of
|
0019| these forms shall be as set forth in this section, with one
|
0020| copy going in the child's patient record and the other being
|
0021| sent to the district court in a manner that preserves the
|
0022| child's anonymity. This procedure shall take place every sixty
|
0023| days from the last admission or attorney's certification,
|
0024| whichever comes first.
|
0025| [O.] N. If the attorney determines that the
|
0001| child does not voluntarily desire to remain in the program or
|
0002| if the clinician of the child has not recommended continued
|
0003| stay by the child in the residential treatment or habilitation
|
0004| program, the child shall be released or the involuntary
|
0005| placement procedures set forth in this section and the
|
0006| Children's Mental Health and Developmental Disabilities Act
|
0007| shall be followed."
|
0008| Section 19. Section 32A-19-1 NMSA 1978 (being Laws 1993,
|
0009| Chapter 77, Section 228) is amended to read:
|
0010| "32A-19-1. QUALITY ASSURANCE OFFICE.--
|
0011| A. [By August 1, 1993] The department shall
|
0012| [establish] maintain a quality assurance office under the
|
0013| office of the secretary.
|
0014| B. The purpose of the quality assurance office
|
0015| shall be to [assist] facilitate department efforts to
|
0016| efficiently [achieve] implement the purposes of the
|
0017| Children's Code.
|
0018| C. In order to measure the quality of services
|
0019| provided, to facilitate satisfactory outcomes for children and
|
0020| families that receive services and to provide a continuing
|
0021| opportunity to [change and] improve service delivery, the
|
0022| quality assurance office shall:
|
0023| (1) [establish an accessible] monitor the
|
0024| system for receiving and resolving complaints and grievances;
|
0025| [(2) perform periodic investigations and
|
evaluations to assure compliance with the Children's Code and
|
other applicable state and federal laws and regulations;
|
(3) monitor] (2) facilitate monitoring of
|
0004| indicators of the department's performance [and] to
|
0005| determine whether the department is:
|
0006| (a) providing children and families with
|
0007| individualized, needs-based service plans;
|
0008| (b) providing services in a timely
|
0009| manner; and
|
0010| (c) in compliance with applicable state
|
0011| and federal laws and regulations;
|
0012| [(4)] (3) identify any deficiencies and
|
0013| recommend corrective action to the secretary of the department;
|
0014| [and
|
(5)] (4) have access to any records
|
0016| maintained by the department, including confidential
|
0017| information; and
|
0018| (5) promote continuous improvement of all
|
0019| department processes serving children and families.
|
0020| D. The quality assurance office shall [annually
|
produce] contribute to and facilitate the publication of
|
0022| public reports assessing the performance of the department.
|
0023| The [report] reports shall not disclose the identity of any
|
0024| individual mentioned in the report, including children or
|
0025| families that receive or are eligible for services or any
|
0001| department employee."
|
0002| Section 20. REPEAL.--Section 32A-6-10.1 NMSA 1978 (being
|
0003| Laws 1995, Chapter 207, Section 11) is repealed.
|
0004| Section 21. EFFECTIVE DATE.--The effective date of the
|
0005| provisions of this act is July 1, 1997.
|
0006|
|