Child Welfare Law Overview - PowerPoint Presentation

Child Welfare Law Overview Kelly P. O’Neill, JD, CWLS

Introduction About Presenter Kelly O’Neill Appellate Attorney with CYFD Work Cell – (505) 412-8023 Email – kelly.oneill@state.nm.us Presentation Will Cover Abuse/Neglect Cases 15-minute break in the middle of the presentation Questions Turn off cell phones or put them on vibrate . Recommended resource: Corrine Wolfe Children’s Law Center – New Mexico Child Welfare Handbook

Presentation Overview Background on Constitutional Law Regarding Rights of Parents and Rights of Children Three Branches of Government and How Each Branch Has a Role in Protecting Children and the Rights of Biological Parents Roles and Responsibilities – Court, Attorneys and Other Advocates Anatomy of a Child Abuse/Neglect Case in New Mexico What Are Reasonable Efforts? Indian Child Welfare Act of 1978 Advocacy in Court – How Can I Advocate on Behalf of a Child? Communicating with CYFD Scenario

Background on Constitutional Law Regarding Rights of Parents and Rights of Children U.S. Supreme Court – Parents have fundamental right arising from the Fourteenth Amendment of the U.S. Constitution to the care, custody, and control of their children. Meyer v. Nebraska (1923)– Supreme Court holds that law that prevented students from being taught German in school was unconstitutional. Parents can control a child’s education. Pierce v. Society of Sisters (1925) – Supreme Court struck down a law requiring children to attend public schools. Again, parents can control a child’s education. Troxel v. Granville (2000) – United States Supreme Court struck down a Washington state law that allowed any third party to petition states court for child visitation rights over parental objections So long as a parent adequately cares for his or her children ( i.e. , is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children .

Background on Constitutional Law Regarding Rights of Parents and Rights of Children (Cont’d) U.S. Supreme Court – State can intervene if doing so is in the interests of a child’s welfare. Prince v. Massachusetts (1944) Supreme Court upheld a woman’s conviction violating child labor laws. Aunt was convicted of violating child labor laws for selling religious literature with her 9-year-old niece, which was illegal. Parental authority is not absolute and can be permissibly restricted if doing so is in the interests of a child's welfare. While children share many of the rights of adults, they face different potential harms from similar activities.

Background on Constitutional Law Regarding Rights of Parents and Rights of Children (Cont’d) When the government infringes on a fundamental constitutional right, U.S. courts apply a strict scrutiny standard of review. Strict Scrutiny The law must be justified by a compelling governmental interest, i.e. something necessary or crucial. The law must be narrowly tailored to achieve the compelling interest. The law must be the least restrictive means for achieving the compelling interest . In order for the state to interfere with a parent’s fundamental right to parent his or her child, the state must show that such interference is necessary to protect the State’s compelling interest in the health, education and welfare of the State’s children.

Background on Constitutional Law Regarding Rights of Parents and Rights of Children (Cont’d) Supreme Court – Parents ’ fundamental liberty interest does not “evaporate simply because they not been model parents or have lost temporary custody of their child to the State .” New Mexico Legislature and New Mexico Supreme Court – Parents Entitled to Procedural Due Process Protections Notice and opportunity to be h eard Department and the court have a responsibility to ensure fairness and due process rights for parents Right to Counsel – Not all states provide Right to Interpreter

Background on Constitutional Law Regarding Rights of Parents and Rights of Children (Cont’d) In New Mexico, the welfare of the Child is paramount to the wishes of the parent. In New Mexico, Children have the fundamental right to a permanent and stable placement. Best Interests of Child In assessing children’s best interests, it is imperative that children are recognized as people who have fundamental interests of their own that are constitutionally protected. A child’s health and safety are the paramount concerns of the children‘s code.

Background on Constitutional Law Regarding Rights of Parents and Rights of Children (Cont’d) Questions?

Roles of Three Branches of Government in Child Protective Services Cases Legislative Branch Children’s Code – Section 32A of the New Mexico Statutes 32A-1 and 32A-4 cover abuse/neglect cases Legislative Finance Committee Approves Funding for CYFD and Courts Executive Branch Children, Youth and Families Department Department of Health Judiciary Each county has a children’s court judge Interprets laws passed by the legislature Check on executive power (CYFD)

Roles and Responsibilities of Attorneys and Other Interested Parties in A/N Cases Children’s Court Attorney (CCA) Guardian ad Litem (GaL) Youth Attorney (YA) Respondent Respondent’s Attorney Court-Appointed Special Advocate (CASA) Citizen Review Board Foster Parents

Roles and Responsibilities: Children’s Court Attorney (CCA) An attorney selected by CYFD. Only person who can sign a Neglect/Abuse Petition Represents CYFD in abuse/neglect proceedings Duty to Be Scrupulously Fair to Respondents Office of General Counsel – Separate department from children’s court attorneys

Roles and Responsibilities: Guardian ad Litem (GaL) Appointed by the court GaL’s represent children age 13 and younger GaL’s must be attorneys (not a requirement in all states) Sibling groups can have the same GaL GaL represents the bests interests of the child GaL informs the court of the child’s express wishes, even if those are not what the GaL deems are in the child’s best interests

Roles and Responsibilities: Youth Attorneys Appointed by the court Youth Attorneys represent youth who are age 14 and older Represent youth similar to a how a parent is represented Not a best interests of the child standard Youth could also be represented by a guardian ad litem (cognitive deficits)

Roles and Responsibilities: Respondent Parent, guardian or custodian of the child Parent Biological or Adoptive Parent Guardian Legal guardian; Not a power of attorney Custodian An adult with whom the child resides Parent could also have a guardian ad litem (cognitive deficits) Entitled to Due Process

Roles and Responsibilities: Respondent’s Attorney In New Mexico, contracts with the Administrative Office of the Courts. Court-appointed if the respondent is indigent or if determination by court that in the interests of justice, attorney should be appointed Requirement in New Mexico Right to effective assistance of counsel. Respondent’s attorney has a duty to zealously advocate for his or her client’s express or implied wishes.

Roles and Responsibilities: Court-Appointed Special Advocates (CASAs) Appointed by the court Assists the court in determining the bests interests of the child by investigating the case and submitting a report to the court Typically file written reports before hearings

Roles and Responsibilities: Citizen Review Board (CRB) Recent changes to CRB Restructuring Holding meetings where parties are entitled to participate CRB prepares a report that is filed with the court.

Roles and Responsibilities: Foster Parents Provide care for children who are removed from their homes and placed in the custody of the state because of suspected abuse or neglect Foster Parents are not automatically parties to the case. They have to formally petition the court to intervene. Foster Parents have the right to notice of most court hearings. They also have a right to be heard at those hearings.

Roles and Responsibilities: Children’s Court Judge District court judges Each county in New Mexico has a district court judge who is designated the children’s court judge. Political appointments Ultimately make the best interests of the child determination Applies facts presented to the law.

Roles and Responsibilities (Cont’d) Questions?

Anatomy of a Case: Referral SCI evaluates reports and assigns a priority for investigation and contacts law enforcement if that has not already been done . Emergency Referral – 3 Hours to Respond Priority One Referral – 24 House to Respond Priority Two Referral – 5 Business Days to Respond

Anatomy of a Case: Placement in Custody There are two ways a child is placed in the Department’s custody : 48-HOUR HOLD 48 hours is business hours. EX PARTE CUSTODY ORDER Ex parte custody order takes effect immediately. Must contain language that returning child to familial home is contrary to the child’s welfare . Typically contains language that the Department has made reasonable efforts to prevent removal of the child from the home. If no contrary to the welfare language in ex parte custody order or reasonable efforts to prevent removal language by court within 30 days of removal, then child is not be eligible for IV-E funding.

Anatomy of a Case: Neglect/Abuse Petition CYFD is the only entity or person that can file a neglect/abuse petition Must contain allegations of abuse or neglect as to each respondent.

Anatomy of a Case: Custody Hearing Must be held within 10 working days of the date the petition is filed. Court determines whether there is probable cause for the child to remain in the Department’s custody pending the outcome of the adjudicatory hearing

Anatomy of a Case: Pre-Adjudicatory Hearing/Mediation The parties are required to meet before the adjudicatory hearing to create a treatment plan to assist the parents and to discuss other issues relevant to the case.

Anatomy of a Case: Adjudicatory Hearing No right to jury trial. Trial where the Rules of Evidence apply. Must be held within 60 days of service on a parent. Court order is required to go beyond, but it requires a court order. Adjudicatory hearings can deal with multiple respondents or can be as to one respondents. There can be more than one adjudicatory hearing depending on services dates. Burden of proof is clear and convincing evidence. Higher burden than most civil cases (preponderance of the evidence) but lower burden than in criminal cases (beyond a reasonable doubt). Adjudicatory judgment is a final, appealable order. That means the respondent, the Department, the guardian ad litem , or the youth attorney can request review from the Court of Appeals. Correct Terminology: Child is adjudicated abused or neglected as to a respondent. Respondents are not adjudicated.

Anatomy of a Case: Dispositional Hearing Must be held within 30 days of the adjudicatory hearing. Typically it is held immediately following the conclusion of the adjudicatory hearing. Rules of Evidence do not apply. Court gets first opportunity to review a report prepared by the Department Court adopts treatment plan Court is required to consider whether reasonable efforts have been made to preserve and reunify the family with the paramount concern being the child’s health and safety. Court is required to determine whether the Department has made reasonable efforts to identify, locate and assess relatives for placement.

Anatomy of a Case: Initial Judicial Review (IJR) Must be held within 60 days from the dispositional hearing Rules of Evidence don’t apply Department prepares a report for the court Court must enter an order that addresses the reasonableness of the Department’s efforts to implement the treatment plan, the degree of compliance by the respondent, and whether continued custody in CYFD is in the child’s best interest. Goal is to make sure that the parties are actively engaged and that barriers to implementing the plan are identified and addressed

Anatomy of a Case: Pre-Permanency Hearing Meeting Parties must meet not less than five days before the initial permanency hearing. The parties discuss what permanency plan will be proposed to the court by the Department at the initial permanency hearing Sometimes held at the same time as a change-of-plan family-centered meeting (FCM) Providers are sometimes invited to change-of-plan FCMs.

Anatomy of a Case: Initial Permanency Hearing Must be held within six months after the IJR or within 12 months after child enters foster care Date child enters foster care is the first of either: The date of the first judicial finding that the child has been abused or neglected; or 60 days from the date the child was removed from the home. Typically is held approximately 10 months after child’s removal from the home unless lengthy adjudicatory hearing that took place over a series of dates. Rules of Evidence don’t apply Department submits a court report

Anatomy of a Case: Initial Permanency Hearing (Cont’d) Court must adopt a permanency plan for the child Reunification – Court must adopt a concrete, time-specific transition home calendar that anticipates child will be transitioned home within the next 6 months based upon the facts and circumstances of the case. Adoption – CCA must file TPR motion with 45 days of change-of-plan (the first of internal change of plan meeting within CYFD or the date the court changes the plan) Permanent Guardianship No TPR required before court grants permanent guardianship Rarely used because no IV-E funds or other subsidy Placement with a Fit & Willing Relative Another Planned Permanent Living Arrangement Must have compelling reason

Anatomy of a Case: Initial Permanency Hearing (Cont’d) Court must find whether the Department has made reasonable efforts to finalize the permanency plan that was in place prior to the hearing. There should only be one initial permanency hearing for a child. Some courts get confused and have initial permanency hearings as to each parent when one parent is served later .

Anatomy of a Case: 90-Day Permanency Review Hearing Held if court adopts a plan of reunification at the initial permanency hearing Department submits a court report Rules of Evidence don’s apply Goal is to ensure child has transitioned home or to address barriers preventing child’s return home Court must adopt a permanency plan for the child Court must find whether the Department has made reasonable efforts to finalize the permanency plan that was in place prior to the hearing .

Anatomy of a Case: Period Judicial Reviews Must be held every six months after the initial permanency hearing These are often called permanency hearings. Rules of Evidence don’t apply. Department submits a court report

Anatomy of a Case: Permanency Hearings Must be held once per year. In New Mexico, they are typically held twice per year to meet with period judicial review requirement Department submits a court report Rules of Evidence don’s apply Goal is to ensure child has transitioned home or to address barriers preventing child’s return home Court must adopt a permanency plan for the child Court must find whether the Department has made reasonable efforts to finalize the permanency plan that was in place prior to the hearing .

Anatomy of a Case: Termination of Parental Rights TPR Motion can be filed by Department or GaL Rules of Evidence apply Parents are entitled to due process since TPR affects the fundamental liberty interest of natural parents in the care, custody and control of their children

Anatomy of a Case: Termination of Parental Rights (Cont’d) Three Separate Bases Actual Abandonment (§ 32A-4-28(B)(1) Cannot use if parent is present and wants to work a treatment plan, even if the parent shows up the day of the TPR trial No requirement of reasonable efforts by the Department to assist the parent Child is a neglected or abused child, the causes of neglect or abuse have not been alleviated and will not be alleviated in the foreseeable future by the parent despite reasonable efforts of the Department to assist the parent in adjusting the causes and conditions of neglect or abuse Presumptive Abandonment or “Foster Parent Bonding” The child has lived in the home of others for an extended period of time; The parent-child relationship has disintegrated; A psychological parent-child relationship has developed between the substitute family and the child; The child no longer prefers to live with the natural parent, if the court determines the child is of sufficient capacity to express a preference; and The substitute family desires to adopt the child.

Anatomy of a Case (Cont’d) Questions?

Timelines – Federal Requirements IPH must be held within one year (14 months) 15 of 22 (which is also incorporated in New Mexico law). If child has been in Department’s custody for 15 of the last 22 months and no TPR filed, must have compelling reason. Compelling reasons are set forth in § 32A-4-29(G)(1)–(8). Remember that 15 of 22 is calculated using date entered foster care. Date child enters foster care is the first of either: The date of the first judicial finding that the child has been abused or neglected; or 60 days from the date the child was removed from the home. While the 22 months could include a prior stint in “foster care,” a trial-home visit is not “foster care.” So if the child was in custody before but there was a lengthy trial-home visit, child was dismissed, and child re-entered foster care shortly thereafter, it is possible that foster care did not occur within—or only occurred for a short period of—the last 22 months .

Reasonable Efforts The term “reasonable efforts” is used in a variety of contexts in children’s court. Most found in both state and federal law. Reasonable efforts to prevent removal Reasonable efforts to reunify families Reasonable efforts to achieve timely permanency for children and to reunify families Reasonable efforts to determine whether a child in the state’s custody is an Indian child (state requirement) Reasonable efforts to identify, locate and assess relatives for placement. Reasonable efforts to place siblings in custody together unless contrary to the safety and well-being of the children

Indian Child Welfare Act of 1978 Enacted to combat the systemic removal of Indian children from their homes and to combat assimilation practices Definition of Indian Tribe Member of an Indian tribe; or Parent is a member of an Indian tribe and the child is eligible for membership in an Indian tribe. Notice to tribe “There is no resource that is more vital to the continued existence and integrity of Indian tribes than their children” Right to intervene or take jurisdiction

Indian Child Welfare Act of 1978 (Cont’d) Added protections for parents Standard of Proof Adjudication – Clear and convincing evidence (NM already requires; most states do not) TPR Trial – Beyond a reasonable doubt Entitled to an attorney (NM already requires; some states do not) Requirement of testimony from a qualified expert witness that continued custody of the child by the child’s parents or Indian custodians will result in serious emotional or physical damage to the child. Expert witness is typically tribal ICWA worker This testimony is required at both the adjudicatory hearing and the TPR trial Finding that active efforts have been made to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family and these services have proven unsuccessful. This finding is required at both the adjudicatory hearing and the TPR trial

Indian Child Welfare Act of 1978 (Cont’d) Never been amended BIA Regulations 1979 2015 Will be amended again in 2016 New ICWA Rule Goes into effect in December 2016 Applies to non-abuse/neglect cases, notably private adoptions of an Indian child

Advocacy in Court Speak up. All hearings are recorded. There are no court reporters. The individuals monitoring the recordings in court are called monitors. They also handle exhibits. “Record Proper” on appeal. Record proper contains anything filed with the court clerk’s office. Best way to get your information in the record is to say it in court or to get your report to the permanency planning worker before s/he drafts the court report.

Testifying in Court If you receive a subpoena Contact attorney Volunteer your cell phone number and try to get a way to contact the attorney Make sure you speak with the attorney so you know what s/he anticipates you will testify to. Testimony Prepare. Know dates. You can bring your notes to court with you, but anyone can look at them if you have to review them. Cannot give an opinion unless you are qualified as an expert witness. If you are qualified as an expert witness you can give an opinion and answer hypothetical questions.

Testifying in Court (Cont’d) Testimony Prepare. Know dates. Testify honestly. You are not there for a “side.” You are there to assist the court in making factual determinations. You may have to testify even if you’ve never met the parent. It’s okay to say, “I don’t know” or “I don’t remember.” Your memory can be refreshed. You can bring your notes to court with you, but anyone can look at them if you have to refresh your recollection .

Testifying in Court (Cont’d) Hearsay A statement being offered to prove the truth of the matter asserted. Cannot testify to what anyone other than the respondent told you . Lay Witness v. Expert Witness Lay Witness – Cannot testify to an opinion Expert Witness – Can give an opinion and answer hypothetical questions . May need to provide CV to parties ahead of time Refreshing your Recollection Who you are unable to remember. There is something that will help you remember. You are unable to remember unless you review the “something” that will help you remember. Court must then approve you reviewing that document.

Other Legal Issues Questions?

Communicating with CYFD Knowing hierarchy is important. Front line workers Investigators In-Home Service Clinicians Permanency Planning Workers Pre-Adopt Workers Adoption Workers Every front line worker has a supervisor Every supervisor is supervised by a county office manager (COM) Every county office manager is supervised by a regional manager

Communicating with CYFD (Cont’d) Be patient and kind. Know who the worker is. Call the front desk of the county office if you do not know who the worker assigned is. Get the name of the person’s supervisor if you call. Know who the supervisor and the COM are. Again, this information can be obtained by calling asking the reception for the county office. If you are able to communicate with the worker, ask them how they communicate best. Phone? Email? Text? Depending on the level of involvement you have, you may want this information for the supervisor. If you are unable to contact the worker, you can contact the supervisor. If you are unable to contact the supervisor, you can contact the COM. This also goes for attorneys if you need to speak with an attorney. Be diligent. The squeaky wheel gets the grease.

Communicating with CYFD (Cont’d) Example(s) from group Questions?

The End Kelly O’Neill Appellate Attorney with CYFD Work Cell – (505) 412-8023 Email – kelly.oneill@state.nm.us Recommended resource: Corrine Wolfe Children’s Law Center – New Mexico Child Welfare Handbook