2023 New Mexico Statutes › Chapter 32A - Children's Code › Article 4 - Child Abuse and Neglect › Section 32A-4-22 - Disposition of adjudicated abused or neglected child.

A. If not held in conjunction with the adjudicatory hearing, the dispositional hearing shall be commenced within thirty days after the conclusion of the adjudicatory hearing. At the conclusion of the dispositional hearing, the court shall make and include in the dispositional judgment its findings on the following:
(1) the interaction and interrelationship of the child with the child's parent, siblings and any other person who may significantly affect the child's best interest;
(2) the child's adjustment to the child's home, school and community;
(3) the mental and physical health of all individuals involved;
(4) the wishes of the child as to the child's placement;
(5) the wishes of the child's parent, guardian or custodian as to the child's custody;
(6) whether reasonable efforts have been made by the department to identify, locate and give notice to all grandparents and other relatives and to conduct home studies on any appropriate relative who expresses an interest in providing care for the child. If the court finds that reasonable efforts in these areas have not been made, the court may make supplemental orders as necessary and may reconsider the matter at the initial judicial review and subsequent periodic review hearings;
(7) whether consideration has been given to the child's familial identity and connections;
(8) whether there exists a relative of the child or other individual who, after study by the department, is found to be qualified to receive and care for the child;
(9) the availability of services recommended in the case plan prepared as a part of the predisposition study in accordance with the provisions of Section 32A-4-21 NMSA 1978;
(10) the ability of the parent to care for the child in the home so that no harm will result to the child;
(11) whether reasonable efforts were made by the department to prevent removal of the child from the home prior to placement in substitute care and whether reasonable efforts were made to attempt reunification of the child with the natural parent; and
(12) whether reasonable efforts were made by the department to place siblings in custody together, unless such joint placement would be contrary to the safety or well-being of any of the siblings in custody, and whether any siblings not jointly placed have been provided reasonable visitation or other ongoing interaction, unless visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings.
B. If a child is found to be neglected or abused, the court may enter its judgment making any of the following dispositions to protect the welfare of the child:
(1) permit the child to remain with the child's parent, guardian or custodian, subject to those conditions and limitations the court may prescribe;
(2) place the child under protective supervision of the department; or
(3) transfer legal custody of the child to one of the following:
(a) the noncustodial parent, if it is found to be in the child's best interest; or
(b) the department.
C. If a child is found to be neglected or abused, in its dispositional judgment the court shall also order the department to implement and the child's parent, guardian or custodian to cooperate with any case plan approved by the court. Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child's health and safety. The court may determine that reasonable efforts are not required to be made when the court finds that:
(1) the efforts would be futile; or
(2) the parent, guardian or custodian has subjected the child to aggravated circumstances.
D. Any parent, guardian or custodian of a child who is placed in the legal custody of the department or other person pursuant to Subsection B of this section shall have reasonable rights of visitation with the child as determined by the court, unless the court finds that the best interests of the child preclude any visitation.
E. The court may order reasonable visitation between a child placed in the custody of the department and the child's siblings or any other person who may significantly affect the child's best interest, if the court finds the visitation to be in the child's best interest.
F. Unless a child found to be neglected or abused is also found to be delinquent, the child shall not be confined in an institution established for the long-term care and rehabilitation of delinquent children.
G. When the court vests legal custody in an agency, institution or department, the court shall transmit with the dispositional judgment copies of the clinical reports, the predisposition study and report and any other information it has pertinent to the care and treatment of the child.
H. Prior to a child being placed in the custody or protective supervision of the department, the department shall be provided with reasonable oral or written notification and an opportunity to be heard. At any hearing held pursuant to this subsection, the department may appear as a party.
I. When the court determines pursuant to Subsection C of this section that no reasonable efforts at reunification are required, the court shall conduct, within thirty days, a permanency hearing as described in Section 32A-4-25.1 NMSA 1978. Reasonable efforts shall be made to implement and finalize the permanency plan in a timely manner.
History:
1978 Comp., § 32A-4-22, enacted by Laws 1993, ch. 77, § 116; 1997, ch. 34, § 6; 1999, ch. 77, § 7; 2005, ch. 189, § 47; 2009, ch. 239, § 42; 2016, ch. 54, § 6; 2022, ch. 41, § 51.
ANNOTATIONS
Cross references.
— For the federal Indian Child Welfare Act,
see
25 U.S.C. § 1901.
The 2022 amendment,
effective July 1, 2022, removed provisions related to Indian children which are now covered by the Indian Family Protection Act; in Subsection A, deleted Paragraph A(13); and deleted former Subsection I and redesignated former Subjection J as Subsection I.
Applicability.
— Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022.
The 2016 amendment,
effective May 18, 2016, required the children's court to include in its findings on disposition whether reasonable efforts to identify and locate grandparents and other relatives have been made and whether consideration has been given to the child's familial identity and connections; in Subsection A, added new Paragraphs (6) and (7) and redesignated the succeeding paragraphs accordingly, in Paragraph (9), after "recommended in the", deleted "treatment" and added "case", in Paragraph (11), after each occurrence of "efforts were", deleted "used" and added "made", and in Paragraph (13), after "the Indian child's", deleted "treatment" and added "case"; in Subsection B, Paragraph (3), after "the child to", deleted "any" and added "one", in Subparagraph B(3)(a), after the semicolon, added "or", deleted Subparagraphs B(3)(b) and (c) and added new Subparagraph B(3)(b); and in Subsection C, in the introductory paragraph, after "cooperate with any", deleted "treatment" and added "case".
The 2009 amendment,
effective July 1, 2009, added Paragraph (10) of Subsection A
The 2005 amendment,
effective June 17, 2005, in Subsection A(4), changed "his custodian" to "the child's placement"; and deleted former Subsection C(3), which provided that the court may determine that reasonable efforts are not required to preserve and reunify the family if the parental rights of the parent to a sibling of the child have been terminated involuntarily.
The 1999 amendment,
effective July 1, 1999, in Subsection C, added the last two sentences in the introductory language and added Paragraphs (1) through (3); and added Subsection J.
The 1997 amendment,
effective July 1, 1997, added the first sentence in Subsection A, substituted "32A-4-21" for "32-4-19" in Paragraph A(7) and made minor stylistic changes in Paragraph A(9) and Subparagraph B(3)(a).
Decisions under prior law.
— In light of the similarity of the provisions, annotations decided under former Section 32-1-34 NMSA 1978 have been included in the annotations to this section.
Dismissal of proceedings as to one parent.
— Where the district court determined that the mother had abused her child; the court dismissed abuse and neglect proceedings against the father; the court determined that placement of the child with the father was in the best interests of the child, the CYFD ceased to have the authority to maintain custody of the child and the mother did not have a liberty interest in continuing the course of her treatment program with the CYFD.
State ex rel. Children, Youth & Families Dep't v. Lisa A.
, 2008-NMCA-087, 144 N.M. 324, 187 P.3d 189.
Grandparent visitation rights.
— The Abuse and Neglect Act does not grant a grandparent unfettered visitation, particularly after an adoption proceeding has occurred.
State ex rel. Children, Youth & Families Dep't v. Senaida C.
, 2008-NMCA-007, 143 N.M. 335, 176 P.3d 324.
Standard of review.
The district court did not err when it used the arbitrary and capricious standard to review CYFD's denial of a grandmother's right of placement.
State ex rel. Children, Youth & Families Dep't v. Senaida C.
, 2008-NMCA-007, 143 N.M. 335, 176 P.3d 324.
Mootness.
— In adjudications of neglect or abuse, because the issue of sufficiency of the evidence is capable of repetition, but may evade appellate review, the appeal of an abuse or neglect adjudication challenging the sufficiency of the evidence is not rendered moot by the district court's dismissal of the underlying case while the adjudication is on appeal.
State ex rel., Children, Youth & Families Dep't v. Amanda H.
, 2007-NMCA-029, 141 N.M. 299, 154 P.3d 674.
No unconstitutional delegation of legislative power.
— Since the provisions relating to the meaning of "neglected child" are to be defined and applied by a court and not the department of human services, there is no unconstitutional, standardless delegation of legislative power to a state agency.
State ex rel. Health & Soc. Servs. Dep't v. Natural Father
, 1979-NMCA-090, 93 N.M. 222, 598 P.2d 1182.
Court can make child its ward before further disposition.
— District court could make a child which it found to be dependent and neglected its ward and thereafter make such disposition of the child as in its considered judgment was in the child's best interests.
N.M. Dep't of Pub. Welfare v. Cromer
, 1948-NMSC-046, 52 N.M. 331, 197 P.2d 902.
Court not bound by any prearranged disposition by agency.
— District court was not bound by any prearranged disposition of child by the department of public welfare (now health care authority department) since placement in any home was to be with consent of the court, and the welfare of the child was the court's paramount consideration.
N.M. Dep't of Pub. Welfare v. Cromer
, 1948-NMSC-046, 52 N.M. 331, 197 P.2d 902.
Adoption proceeding may not be circumvented.
— Proceedings to determine if a child is dependent and neglected may not be used to circumvent an adoption proceeding, but where the court has announced its decision denying the petition to adopt, the welfare and best interest of the child are of paramount consideration.
Herman v. McIver
, 1959-NMSC-055, 66 N.M. 36, 341 P.2d 457.
Parental right to custody can be taken away.
— The state's claim that parental rights to custody of a child in need of supervision cannot be taken away absent a showing of incompetence on the part of the parent or parents is an overly narrow reading of this statute, which makes no such requirement.
In re Doe
, 1975-NMCA-131, 88 N.M. 505, 542 P.2d 1195.
"Reasonable efforts".
— Sections 32A-4-2C, 32A-4-22C, 32A-4-28B(2) NMSA 1978 are constitutional facially and as applied to a mother, whose parental rights were terminated without the state making reasonable efforts toward family reunification, where the mother had previously had parental rights terminated as to another child and no progress was evident in the mother's efforts to kick a 4-year drug abuse problem.
State ex rel. Children, Youth & Families Dep't v. Amy B.
, 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845.
Enrollment of a child as a member of an Indian tribe.
— Where the department filed an abuse and neglect petition and sought to terminate the parent's parental rights to three children, prior to trial, the department was aware that the parent and the children were eligible for enrollment in the Navajo Nation, that the parent had undertaken efforts to enroll the parent and the children, and that the parent was delayed in the enrollment process due to unique circumstances; the department made no efforts to facilitate the enrollment of the children; prior to trial, the parent requested a continuance to permit the parent to complete the enrollment process; and the district court denied the continuance on the ground that the parent and the children were not enrolled in the Navajo Nation and subsequently terminated the parent's parental rights, the district court erred in terminating the parent's parental rights before the department had fulfilled its obligations under Subsection I of Section 32A-4-22 NMSA 1978 to pursue the enrollment of the children in the Navajo Nation.
State ex rel. CYFD v. Marsalee P.
, 2013-NMCA-062, 302 P.3d 761.
Department's duty to investigate whether a child in its custody is eligible for enrollment as a member of an Indian tribe.
— In termination of parental rights proceeding, the children, youth and families department (CYFD) complied with the mandate of 32A-4-22(I) NMSA 1978, where CYFD attempted to obtain evidence on mother's genealogy, had many conversations with mother to gather information on her lineage in which mother was not cooperative, requested mother's birth certificate on numerous occasions, but mother failed to produce the document, attempted to obtain mother's birth certificate through a state agency, unsuccessfully attempted to retrieve father's birth certificate and certificate of Indian blood from father and paternal grandmother, contacted the vital records department of the Navajo Nation, and worked with other entities within the Navajo Nation and the southern Ute tribe to determine if children were eligible for enrollment as a member of an Indian tribe.
State ex rel. CYFD v. Nathan H.
, 2016-NMCA-043, cert. denied.
Court vested with broad discretion in placement of minors.
— The court did not violate the spirit and intent of the Children's Code by placing a 16-year-old girl in the custody of a woman who had helped to rear her and had been found to be a positive influence over her where the child felt compelled to run away from her mother's household and would in all likelihood continue to refuse to live with her mother since the children's court is vested with a broad discretion in hearing and deciding matters under it.
In re Doe
, 1975-NMCA-131, 88 N.M. 505, 542 P.2d 1195.
Effect of agency not studying qualifications of individual awarded custody.
— Contentions that no agency designated by the court had made a study of the qualifications of the woman awarded custody of a 16-year-old girl in need of supervision were never raised at the probation revocation hearing, and in awarding custody the court impliedly found the woman qualified to have custody of the girl.
In re Doe
, 1975-NMCA-131, 88 N.M. 505, 542 P.2d 1195.
Counsel of record entitled to notice of subsequent termination action.
— The human services department [health care authority department] was required to serve a parent's attorney with notice of the department's action to terminate parental rights, when the attorney was representing him in a separate neglect action before the children's court.
Ronald v. State ex rel. Human Servs. Dep't
, 1990-NMSC-071, 110 N.M. 454, 797 P.2d 243.
Adoption of child requires notice to parents.
— It is impossible to declare a child to be dependent and neglected and then place the child for adoption without notice to the parents. 1959 Op. Att'y Gen. No. 59-59.
District judge has no authority to sign adoption consents after declaring child dependent and neglected.
1959 Op. Att'y Gen. No. 59-59.
Law reviews.
— For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973).
For article, "Child Welfare Under the Indian Child Welfare Act of 1978; A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Power of court or other public agency to order medical treatment for child over parental objections not based on religious grounds, 97 A.L.R.3d 421.
Validity of state statute providing for termination of parental rights, 22 A.L.R.4th 774.
Attorneys' fees awards in parent-nonparent child custody case, 45 A.L.R.4th 212.
Foster parent's right to immunity from foster child's negligence claims, 55 A.L.R.4th 778.
Denial or restriction of visitation rights to parent charged with sexually abusing child, 1 A.L.R.5th 776.
43 C.J.S. Infants §§ 69 to 91.