2023 New Mexico Statutes › Chapter 32A - Children's Code › Article 4 - Child Abuse and Neglect › Section 32A-4-25.1 - Permanency hearings; permanency review hearings.

A. A permanency hearing shall be commenced within six months of the initial judicial review of a child's dispositional order or within twelve months of a child entering foster care pursuant to Subsection D [E] of this section, whichever occurs first. Prior to the initial permanency hearing:
(1) the department shall submit a copy of any continuation of the dispositional order and notice of hearing to the council or any substitute care review board designated pursuant to Section 32A-8-5 NMSA 1978;
(2) the department shall submit a progress report to any designated substitute care review board;
(3) all parties to the hearing shall attend a mandatory meeting and attempt to settle issues attendant to the permanency hearing and develop a proposed treatment plan that serves the child's best interest; and
(4) any designated substitute care review board may review the child's case and the department's progress report and report its findings and recommendations to the court.
B. At the permanency hearing, all parties shall have the opportunity to present evidence and to cross-examine witnesses. At the conclusion of the permanency hearing, the court shall order one of the following permanency plans for the child:
(1) reunification;
(2) placement for adoption after the parents' rights have been relinquished or terminated or after a motion has been filed to terminate parental rights;
(3) placement with a person who will be the child's permanent guardian;
(4) placement in the legal custody of the department with the child placed in the home of a fit and willing relative; or
(5) placement in the legal custody of the department under a planned permanent living arrangement, provided that there is substantial evidence that none of the above plans is appropriate for the child.
C. If the court adopts a permanency plan of reunification, the court shall adopt a plan for transitioning the child home within a reasonable period depending on the facts and circumstances of the case, but not to exceed six months, and schedule a permanency review hearing within three months. If the child is reunified, the subsequent hearing may be vacated.
D. At the permanency review hearing, all parties and the child's guardian ad litem or attorney shall have the opportunity to present evidence and cross-examine witnesses. Based on the evidence, the court shall:
(1) change the plan from reunification to one of the alternative plans provided in Subsection B of this section;
(2) dismiss the case and return custody of the child to the child's parent, guardian or custodian;
(3) continue legal custody of the child in the department to complete a transition home to the child's parent, guardian or custodian and continue the case plan for not more than six months, after which the case shall be dismissed unless the plan is changed as provided in Paragraph (1) of this subsection; or
(4) return the child to the custody of the child's parent, guardian or custodian, subject to any conditions or limitations as the court may prescribe, including protective supervision of the child by the department and continuation of the case plan for not more than six months, after which the case shall be dismissed. The department may seek removal of a child from the home by obtaining an order in the pending case or by seeking emergency removal under Section 32A-4-6 NMSA 1978 during the period of protective supervision if the child's best interest requires such action. When a child is removed in this situation, a permanency hearing shall be scheduled within thirty days of the child coming back into the department's legal custody.
E. The court shall hold a permanency hearing and adopt a permanency plan for a child within twelve months of the child entering foster care. For purposes of this section, a child shall be considered to have entered foster care on the earlier of:
(1) the date of the first judicial finding that the child has been abused or neglected; or
(2) sixty days after the date on which the child was removed from the home.
F. The court shall hold permanency hearings every twelve months when a child is in the legal custody of the department.
G. The children's court attorney shall give notice of the time, place and purpose of any permanency hearing or permanency review hearing held pursuant to this section to:
(1) all parties, including:
(a) the child alleged to be neglected or abused or in need of court-ordered services, by and through the child's guardian ad litem or attorney;
(b) the child's parent, guardian or custodian, who has allegedly neglected or abused the child or is in need of court-ordered services; and
(c) any other person made a party by the court;
(2) the child's foster parent or substitute care provider;
(3) the child's court-appointed special advocate; and
(4) if designated by the council, the substitute care review board.
H. The Rules of Evidence shall not apply to permanency hearings. The court may admit testimony by any person given notice of the permanency hearing who has information about the status of the child or the status of the treatment plan. All testimony shall be subject to cross-examination.
History:
Laws 1997, ch. 34, § 8; 2005, ch. 189, § 50; 2009, ch. 239, § 46; 2016, ch. 54, § 7; 2016, ch. 60, § 3.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For permanency hearing rules,
see
Rules 10-345 and 10-346 NMRA.
For applicability of the Rules of Evidence,
see
Rule 11-1101 NMRA.
For the meaning of "CASA",
see
32A-1-4 NMSA 1978.
2016 Multiple Amendments.
— Laws 2016, ch. 54, §7 and Laws 2016, ch. 60, § 3 enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2016, ch. 60, § 3, as the last act signed by the governor, is set out above and incorporates both amendments. The amendments enacted by Laws 2016, ch. 54, § 7 and Laws 2015, ch. 60, § 3 are described below. To view the session laws in their entirety,
see
the 2016 session laws on
NMOneSource.com
.
Laws 2016, ch. 60, § 3, effective July 1, 2016, required the children, youth and families department to submit a copy of the dispositional order and notice of hearing to the substitute care advisory council, submit progress reports and give notice of hearings to any designated substitute care review board; in Subsection A, in the introductory paragraph, after "Prior to the initial permanency hearing", deleted "all parties to the hearing shall attend a mandatory meeting and attempt to settle issues attendant to the permanency hearing and develop a proposed treatment plan that serves the child's best interest. Prior to the initial permanency hearing, the department shall submit a progress report regarding the child to the local substitute care review board for that judicial district. The local substitute care review board may review the child's dispositional order, any continuation of that order", added new Paragraphs (1) through (3) and designated the remaining language of Subsection A as Paragraph (4), and in Paragraph (4), added "any designated substitute care review board may review the child's case"; in Subsection D, after "The court must ensure", deleted "the" and added "that"; and in Subsection H, after "shall give notice", deleted the remainder of the sentence, which related to those entitled to notice, and added "of the time, place and purpose of any permanency hearing or permanency review hearing held pursuant to this section to:", and added new Paragraphs (1) through (4).
Laws 2016, ch. 54, § 7, effective May 18, 2016, set a six-month limit for transitioning a child home when a permanency plan of reunification is adopted; in Subsection A, after "develop a proposed", deleted "treatment" and added "case"; in Subsection C, after "transitioning the child home", added "within a reasonable period depending on the facts and circumstances of the case, but not to exceed six months"; deleted former Subsection D and redesignated the succeeding subsections accordingly; and in Subsection D, added new Paragraph (3) and redesignated former Paragraph (3) as Paragraph (4), and in Paragraph (4), after "continuation of the", deleted "treatment" and added "case".
The 2009 amendment,
effective July 1, 2009, in Subsection A, in the first sentence, changed "Subsection E" to "Subsection D"; added Subsection D; and in Subsection H, after "notice to all parties", added "including the child by and through" and after "guardian ad litem", added "or attorney".
Applicability.
— Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.
The 2005 amendment,
effective June 17, 2005, in Subsection A, provided that a permanency hearing shall be held within six month of the initial review of a dispositional order or within twelve months of a child entering foster care pursuant to Subsection E, whichever occurs first; in Subsection B, deleted the former provision which provided that during a permanency hearing, there is a rebuttable presumption that the child's best interest will be served by returning the child to his parent, guardian or custodian; in Subsection B(1) through (5), provided the plans that the court may order at a permanency hearing; deleted former Subsection C, which provided that if the presumption is not rebutted, the court could dismiss the case and return the child to his parent, guardian or custodian or return the child under conditions and limitations prescribed by the court; in Subsection C, provided that if the court orders reunification, the court shall adopt a transition plan and schedule a review hearing; deleted former Subsection D, which provided that if the presumption is rebutted, the court shall order that the child remain in legal custody of the department; in Subsection D(1) through (3), provided the dispositions that the court may make at a permanency review hearing, deleted former Subsection E, which provided that in a subsequent permanency hearing, there shall be a presumption that the child's best interest shall be served by providing for the adoption, emancipation or permanent guardianship of the child; in Subsection E, provided that the court shall adopt a permanency plan within twelve months after the child has entered foster care and provides criteria for determining the date a child enters foster care; deleted former Subsection F, which provided that if the presumption in Subsection E is not rebutted, the court shall order the adoption, emancipation or permanent guardianship of the child and efforts to reunite the child with his parent shall not be attempted; in Subsection F, provided that the court shall hold a permanency hearing every twelve months when a child is in the legal custody of the department; deleted former Subsection G, which provided that if the presumption in Subsection E is rebutted, the court shall dismiss the case and return the child to his parent, guardian or custodian or return the child to his parent, guardian or custodian under conditions and limitations; and in Subsection G, provided that the children's court attorney shall give notice of a permanency review hearing.
Permanency hearings represent a critical stage.
State ex rel. Children, Youth & Families Dep't. v. Maria C.
, 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796.
Hearings bear direct relation to final termination hearing.
State ex rel. Children, Youth & Families Dep't. v. Maria C.
, 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796.
Factual basis for termination is largely established at permanency hearing
, even though a formal final termination hearing follows.
State ex rel. Children, Youth & Families Dep't. v. Maria C.
, 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796.
Rights of parents at hearing.
— Parents have a due process right to fair notice and an opportunity for meaningful participation at the permanency stage, including the right to present evidence and cross examine witnesses, when their presence or additional safeguards would be useful or beneficial to the defense.
State ex rel. Children, Youth & Families Dep't. v. Maria C.
, 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796.
Reunification plan.
— Parents do not have an unlimited time to rehabilitate and reunite with their children. State law allows a reunification plan to be maintained for a maximum of fifteen months.
State ex rel. Children, Youth & Families Dep't. v. Maria C.
, 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796.
Incarceration
can be the sole legal ground for changing a permanency plan.
State ex rel. Children, Youth & Families Dep't. v. Maria C.
, 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796.
A parent's absence from permanency hearings did not increase the risk of an erroneous deprivation of parental rights and deny the parent due process where the evidence at the permanency hearings and the termination of parental rights hearing was the same evidence, the parent was sentenced to a term of at least five years in federal prison and the parent had a poor parenting history and a prior incarceration.
State ex rel. Children, Youth and Families Dep't v. Maria C.
, 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796.
A parent who was incarcerated and not present at the termination of parental rights hearing, but who was given the opportunity to participate in the hearing by telephone and who refused to participate in the proceedings by verbalizing profanities towards the judge and then hung up by telephone waived this right to participate in the hearing.
State ex rel. Children, Youth and Families Dep't v. Christopher L.
, 2003-NMCA-068, 133 N.M. 653, 68 P.3d 199.
Standing to appeal placement.
— Where the parent's parental rights were terminated; the district court entered a stipulated order that granted the cousin of the parent and the child the status of an intervenor; the order stated the intervenor had a sufficient legal interest to seek consideration as a placement for the child so as to preserve family connections; and the department failed to consider the intervenor as a potential placement, the intervenor had standing to appeal the issue of whether department made reasonable efforts to identify and locate relatives for potential placement of the child.
State ex rel. Children, Youth & Families Dep't v. Laura J.
, 2013-NMCA-057, 301 P.3d 860, cert. denied, 2013-NMCERT-003.
Standard for reviewing compliance with the duty to identify and locate relatives for potential placement.
— The district court's obligation to inquire into whether the department has complied with its mandate to locate, identify, and consider relatives with whom to place children in its custody is not satisfied by a pro forma ratification of the department's assertions that such efforts have been made or by placing the burden of locating and identifying relatives on the parents of children in departmental custody. Rather, in order to comply with the relative search requirement of Subsection D of Section 32A-2-25.1 NMSA 1978, the court must conclude that the department, through all of its resources, has met its affirmative duty to identify and locate and conduct home studies on any appropriate relative expressing an interest in providing permanency for the child.
State ex rel. Children, Youth & Families Dep't v. Laura J.
, 2013-NMCA-057, 301 P.3d 860, cert. denied, 2013-NMCERT-003.
Failure to identify and locate relatives for potential placement.
— Where the parent's parental rights were terminated; a cousin of the mother and the child intervened in the proceeding and sought to have the child placed with the intervenor; the intervenor attended meetings at the department and expressed an interest in providing care for the child's half sibling; the intervenor contacted the department about the child; the intervenor was a department-licensed foster parent and the guardian of the child's half sibling; and the department failed to consider placing the child with the intervenor, the department failed to comply with the statutory requirement of Subsection G of Section 32A-4-25.1 NMSA 1978 of making reasonable efforts to place the child with willing and appropriate relatives.
State ex rel. Children, Youth & Families Dep't v. Laura J.
, 2013-NMCA-057, 301 P.3d 860, cert. denied, 2013-NMCERT-003.
Preference that a child be placed with relatives.
— New Mexico law expresses a preference that any child subject to the New Mexico Abuse and Neglect Act be placed with relatives. The court shall determine whether the children, youth and families department (department) has made reasonable efforts to identify and locate all grandparents and other relatives. The court shall also determine whether the department has made reasonable efforts to conduct home studies on any appropriate relative expressing an interest in providing permanency for the child. The court must ensure the consideration has been given to the child's familial identity and connections.
State ex rel. Children, Youth and Families Dep't v. Casey J.
, 2015-NMCA-088.
Where Indian children were taken into custody and placed into foster care by the children, youth and families department (department) due to ongoing concerns related to each parent's issues with substance abuse and domestic violence, and where the children's father claimed that the department failed to make reasonable efforts to identify, locate and conduct home studies on willing and appropriate relatives who could potentially serve as placement for children, the district court did not err in finding that the department's efforts to place children with relatives satisfied the requirements of 32A-4-25.1 NMSA 1978, where the evidence established that the department made consistent efforts to honor mother and father's request that the children's aunt be considered as a placement for children, that the department attempted to engage aunt in at least four home studies, but that aunt withdrew from the process each time, and that other relatives had been considered by the department, but that these relatives had been unwilling or unable to provide a suitable placement for children.
State ex rel. Children, Youth and Families Dep't v. Casey J.
, 2015-NMCA-088.
A placement preference exists in favor of a child's relatives over non-relatives, but the preference must be tempered by the best interests of the child involved.
— The intended purpose of the Abuse and Neglect Act, 32A-4-1 to 32A-4-35 NMSA 1978 in addition to making decisions in the child's best interests and providing due process to all involved parties, is to preserve the unity of the family, and therefore once a child is placed in the custody of the children, youth and families department, and a court has made a finding of abuse or neglect, a placement preference with qualified relatives is triggered, which remains the case for any future permanency changes involving the child. The law also supports, however, the notion that the preference must be tempered by the best interests of the child involved and therefore, there may be circumstances in which a court could reasonably conclude that a non-relative foster parent with whom a child is living and has an emotionally significant relationship may and should be given preference over a relative.
Foster Parent Placement Preference
(7/1/22), Att'y Gen. Adv. Ltr. 2022-05.
Violation of six-month timeline in termination of parental rights case did not constitute fundamental error.
— Where child was brought into children, youth and families department (CYFD) custody two months prior to mother pleading no contest to neglecting child due to her domestic violence, substance abuse, and mental health issues, and where, over the next several years, several attempts at visitation between child and mother took place, after which child exhibited negative, and sometimes violent, behavioral issues, and where mother argued that § 32A-4-25.1(D) NMSA 1978 required the district court to dismiss the case, change the permanency plan, or complete a plan to transition home within six months of the initial judicial review, and that the district court committed fundamental error when it failed to take one of these actions until two years after the initial judicial review, when the court changed the permanency plan to adoption, the district court did not commit fundamental error, because even if the court failed to comply with the six-month timeline, the additional time before termination proceedings benefitted mother's defense of termination by giving her additional opportunities to fully comply with her treatment plan and providing additional attempts to reestablish visitation with child. Because the alleged error did not go to the foundation of the case or deprive mother of rights essential to her defense, it did not constitute fundamental error.
State ex rel. CYFD v. Josie G.
, 2021-NMCA-063, cert. denied.