2021 New Mexico Statutes
Chapter 32A - Children's Code
Article 4 - Child Abuse and Neglect
Section 32A-4-25 - Periodic judicial review of dispositional judgments.
A. The initial judicial review shall be held within sixty days of the disposition. At the initial judicial review, the parties shall demonstrate to the court efforts made to implement the treatment plan approved by the court in its dispositional order. The court shall determine the extent to which the treatment plan has been implemented and make supplemental orders as necessary to ensure compliance with the treatment plan and the safety of the child. Prior to the initial judicial review, the department shall submit a copy of the adjudicatory order, the dispositional order and notice of the initial judicial review to the council. The staff of the council, or an entity contracting with the council, shall review the case. If the staff or contracting entity determines that the case meets the criteria established in council rules, the staff or contracting entity shall designate the case for review by a substitute care review board. A representative of the substitute care review board, if designated, shall be permitted to attend and comment to the court.
B. The court shall conduct subsequent periodic judicial reviews of the dispositional order within six months of the conclusion of the permanency hearing or, if a motion has been filed for termination of parental rights or permanent guardianship, within six months of the decision on that motion and every six months thereafter. Prior to a subsequent periodic judicial review, the department shall submit a progress report to the council or any designated substitute care review board. Prior to any judicial review by the court pursuant to this section, the substitute care review board may review the dispositional order or the continuation of the order and the department's progress report and report its findings and recommendations to the court.
C. Judicial review pursuant to this section may be carried out by either of the following:
(1) a judicial review hearing conducted by the court; or
(2) a judicial review hearing conducted by a special master appointed by the court; provided, however, that the court approve any findings made by the special master.
D. The children's court attorney shall give notice of the time, place and purpose of any judicial review hearing held pursuant to Subsection A, B or C of 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.
E. At any subsequent judicial review hearing held pursuant to Subsection B of this section, the department and all parties given notice pursuant to Subsection D of this section shall have the opportunity to present evidence and to cross-examine witnesses. At the hearing, the department shall show that it has made reasonable effort to implement any treatment plan approved by the court in its dispositional order and shall present a treatment plan consistent with the purposes of the Children's Code for any period of extension of the dispositional order. The respondent shall demonstrate to the court that efforts to comply with the treatment plan approved by the court in its dispositional order and efforts to maintain contact with the child were diligent and made in good faith. The court shall determine the extent of compliance with the treatment plan and whether progress is being made toward establishing a stable and permanent placement for the child.
F. The Rules of Evidence shall not apply to hearings held pursuant to this section. The court may admit testimony by any person given notice of the hearing who has information about the status of the child or the status of the treatment plan.
G. At the conclusion of any hearing held pursuant to this section, the court shall make findings of fact and conclusions of law.
H. When the child is an Indian child, the court shall determine during review of a dispositional order whether the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the child's Indian tribe were followed and whether the child's treatment plan provides for maintaining the child's cultural ties. When placement preferences have not been followed, good cause for noncompliance shall be clearly stated and supported.
I. Based on its findings at a judicial review hearing held pursuant to Subsection B of this section, the court shall order one of the following dispositions:
(1) dismiss the action and return the child to the child's parent without supervision if the court finds that conditions in the home that led to abuse have been corrected and it is now safe for the return of the abused child;
(2) permit the child to remain with the child's parent, guardian or custodian subject to those conditions and limitations the court may prescribe, including protective supervision of the child by the department;
(3) return the child to the child's parent and place the child under the protective supervision of the department;
(4) transfer or continue legal custody of the child to:
(a) the noncustodial parent, if that is found to be in the child's best interests;
(b) a relative or other individual who, after study by the department or other agency designated by the court, is found by the court to be qualified to receive and care for the child and is appointed as a permanent guardian of the child; or
(c) the department, subject to the provisions of Paragraph (6) of this subsection;
(5) continue the child in the legal custody of the department with or without any required parental involvement in a treatment plan. Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child's health and safety unless the court finds that such efforts are not required. The court may determine that reasonable efforts are not required to be made when the court finds that:
(a) the efforts would be futile; or
(b) the parent, guardian or custodian has subjected the child to aggravated circumstances;
(6) make additional orders regarding the treatment plan or placement of the child to protect the child's best interests if the court determines the department has failed in implementing any material provision of the treatment plan or abused its discretion in the placement or proposed placement of the child; or
(7) if during a judicial review the court finds that the child's parent, guardian or custodian has not complied with the court-ordered treatment plan, the court may order:
(a) the child's parent, guardian or custodian to show cause why the parent, guardian or custodian should not be held in contempt of court; or
(b) a hearing on the merits of terminating parental rights.
J. Dispositional orders entered pursuant to this section shall remain in force for a period of six months, except for orders that provide for transfer of the child to the child's noncustodial parent or to a permanent guardian.
K. When the court determines, pursuant to Paragraph (5) of Subsection I 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. The department shall make reasonable efforts to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.
History: 1978 Comp., § 32A-4-25, enacted by Laws 1993, ch. 77, § 119; 1995, ch. 206, § 24; 1997, ch. 34, § 7; 1999, ch. 77, § 8; 2005, ch. 189, § 49; 2009, ch. 239, § 45; 2016, ch. 60, § 2.
ANNOTATIONSCompiler's note. — This section was enacted by Laws 1993, ch. 77, § 119 as 32-4-23 NMSA 1978. It was recompiled by the compiler as 32A-4-25 NMSA 1978. See note at the beginning of the chapter.
Cross references. — For judicial review procedure, see Rule 10-325 NMRA.
For applicability of the Rules of Evidence, see Rule 11-1101 NMRA.
For the federal Indian Child Welfare Act, see 25 U.S.C. § 1901.
The 2016 amendment, effective July 1, 2016, provided certain duties and responsibilities for the substitute care advisory council, and amended notice provisions for judicial review hearings; in the catchline, added "judicial"; in Subsection A, after "At the initial", added "judicial", near the end of the fourth sentence, after "the initial judicial review to the", deleted "local substitute care review board for that judicial district created under the Citizen Substitute Care Review Act" and added "council" and added the next two sentences, after "A representative of the", deleted "local", and after "review board", added "if designated"; in Subsection B, added "The court shall conduct", after "subsequent periodic", added "judicial", after "reviews of", added "the", after "dispositional", deleted "orders shall be held" and added "order", after "Prior to", deleted "the" and added "a subsequent periodic judicial", after "progress report to the", deleted "local substitute care review board for that judicial district created under the Citizen Substitute Care Review Act" and added "council or any designated substitute care review board", after "pursuant to this section, the", deleted "local", and after "recommendations to the court.", deleted "The"; added the new subsection designation "C" and redesignated former Subsections C through I as Subsection D through J, respectively; in Subsection C, added "Judicial", and after "review", added "pursuant to this section"; in Subsection D, in the introductory sentence, after "shall give notice", added "of the time, place and purpose of any judicial review hearing held pursuant to Subsection A, B or C of this section", added new paragraph designation "(1)", in Paragraph (1), in the introductory phrase, added the subparagraph designation "(a)", and after "the child", added "alleged to be neglected or abused or in need of court-ordered services", added the subparagraph designation "(b)", and after "the child's", deleted "CASA, a contractor administering the local substitute care review board and the child's foster parent or substitute care provider of the time, place and purpose of any judicial review hearing held pursuant to Subsection A or B of this section" and added "parent, guardian or custodian, who has allegedly neglected or abused the child or is in need of court-ordered services; and", added new Subparagraph (c), and added new Paragraphs (2) through (4); in Subsection E, after "At any", added "subsequent", and after the first occurrence of "the department", deleted "the child's guardian ad litem or attorney", and after "Subsection", deleted "C" and added "D"; deleted former Subsection J; and in Subsection K, after "Subsection", deleted "H" and added "I", after "NMSA 1978", added "The department shall make", and after "reasonable efforts", deleted "shall be made".
The 2009 amendment, effective July 1, 2009, in Subsection C, after "notice to all parties", added "including the child by and through"; and in Subsections C and D, after "guardian ad litem", added "or attorney".
Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of Laws 2009, ch. 239 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, deleted former Subsection H(5)(c), 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, made a minor stylistic change in Subsection C; in Subsection H(5), added the last two sentences and Subparagraphs (a) through (c); and added Subsection K.
The 1997 amendment, effective July 1, 1997, rewrote former Subsection A to form present Subsections A and B, redesignated former Subsections B to I as Subsections C to J and made minor stylistic changes in Subsections C, D, and J accordingly, and inserted "at a judicial review hearing held pursuant to Subsection B of this section" in the introductory language of Subsection H.
The 1995 amendment, effective July 1, 1995, inserted "a contractor administering the local substitute care review board" following "CASA" in Subsection B.
Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-38.1 NMSA 1978 have been included in the annotations to this section.
Hearsay evidence. — The trial court did not err by basing its finding of futility made at a judicial review hearing on hearsay evidence. State ex rel. Children, Youth & Families Dep't v. Vanessa C., 2000-NMCA-025, 128 N.M. 701, 997 P.2d 833, cert. denied, 128 N.M. 690, 997 P.2d 822.
Federal proceeding barred. — A federal class action by mentally or developmentally disabled children against state officers was barred because the continuing jurisdiction of the children's court under Section 32A-4-24 NMSA 1978, coupled with the mandatory six-month periodic review hearings under this section, constituted an ongoing state judicial proceeding. J.B. v. Valdez, 186 F.3d 1280 (10th Cir. 1999).
Court's authority after child in custody of department. — Once legal custody is in the department of human services, the children's court has no authority to prohibit the department from placing physical custody of the child with any particular person. In re Jacinta M., 1988-NMCA-100, 107 N.M. 769, 764 P.2d 1327.
Sexual orientation of proposed custodian, standing alone, is not enough to support a conclusion that the person cannot provide a proper environment. In re Jacinta M., 1988-NMCA-100, 107 N.M. 769, 764 P.2d 1327.
