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Termination of Parental Rights Part II

Posted on June 5, 2013 at 4:24 PM Comments comments (377)
 
Termination is involuntary—the Courts take awaysomeone’s parental rights despite that person’s objection. However the reasoning the Courts use is very similar. You can see how the distinction disintegrates in reality. This is because whether termination o r relinquishment, the Courts look for only two circumstances whereupon parental rights can be divested: abuse and neglect cases and private adoption.
 
The first instance is typically handled by the Department of Child Youth and Families. For instance, CYFD receives a complaint about a parent and investigates and further determines there’s adequate evidence of abuse and/or neglect to justify petitioning the Courts for termination of parental rights. In the second instance, termination procedures can be initiated when a child is in the process of being adopted.  Below is a portion of the law outlining the procedure. You will note that it is geared for either the CYFD track or private adoption. In essence, the following provides what is required in a petition to terminate parental rights.
 
Section 32A-5-16 Termination procedures
 
A. A proceeding to terminate parental rights may be initiated in connection with or prior to an adoption proceeding. Venue shall be in the court for the county in which the child is physically present or in the county from which the child was placed. The proceeding may be initiated by any of the following:
 
(1) the department;
 
(2) an agency; or
 
(3) any other person having a legitimate interest in the matter, including a petitioner for adoption, the child's guardian, the child's guardian ad litem or attorney in another action,a foster parent, a relative of the child or the child.
 
B. A petition for termination of parental rights shall be signed and verified by the petitioner, be filed withthe court and set forth:
 
(1) the date, place of birth and marital status of the child, if known;
 
(2) the grounds for termination and the facts and circumstances supporting the grounds for termination;
 
(3) the names and addresses of the person, authorized agency or agency officer to whom custody might be transferred;
 
(4) the basis for the court'sjurisdiction;
 
(5) that the petition is incontemplation of adoption;
 
(6) the relationship or legitimate interest of the applicant to the child; and
 
(7) whether the child is an Indian child and, if so:
 
(a) the tribal affiliations of the child's parents;
 
(b) the specific actions taken by the moving party to notify the parents' tribe and the results of the contacts,including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the Indian tribe shall be attachedas exhibits to the petition; and
 
(c) what specific efforts were made to comply with the placement preferences set forth in the federal Indian ChildWelfare Act of 1978 or the placement preferences of the appropriate Indiantribes.
 
C. Notice of the filing of the petition, accompanied by a copy of the petition, shall be served by the petitioner on the parents of the child, the child's guardian, the legal custodian of the child, the person with whom the child is residing, the individuals with whom the child has resided within the past six months and the department. Service shall be in accordance with the Rules of Civil Procedure[1-001 NMRA] for the District Courts for the service of process in a civil action in this state, with the exception that the department may be served by certified mail. The notice shall state specifically that the person served shall file a written response to the petition within twenty days if the person intends to contest the termination. In any case involving an Indian child, notice shall also be served on the child's Indian tribe pursuant to the federal Indian Child Welfare Act of 1978.
 
D. If the identification or whereabouts of a parent is unknown, the petitioner shall file a motion for anorder granting service by publication or an order stating that service by publication is not required. A motion for an order granting service by publication shall be supported by the affidavit of the petitioner, the agency or the petitioner's attorney detailing the efforts made to locate the parent.Upon being satisfied that reasonable efforts to locate the parent have been made and that information as to the identity or whereabouts of the parent is still insufficient to effect service in accordance with SCRA, Rule 1-004[NMRA], the court shall order service by publication or order that publicationis not required because the parent's consent is not required pursuant to theprovisions of Section 32A-5-19 NMSA 1978.
 
E. The court shall, upon request,appoint counsel for an indigent parent who is unable to obtain counsel or if,in the court's discretion, appointment of counsel for an indigent parent is required in the interest of justice. Payment for the appointed counsel shall be made by the petitioner pursuant to the rate determined by the supreme court of New Mexico for court-appointed attorneys.
 
F. The court shall appoint a guardian ad litem for the child in all contested proceedings for termination of parental rights. If the child is fourteen years of age or older and in the custody of the department, the child's attorney appointed pursuant to the Abuse and Neglect Act [32A-4-1 NMSA 1978] shall represent the child in any proceedings for termination of parental rights under this section.
 
G. Within thirty days after thefiling of a petition to terminate parental rights, the petitioner shall request a hearing on the petition. The hearing date shall be at least thirty days after service is effected upon the parent of the child or completion of publication.
 
H. The grounds for any attempted termination shall be proved by clear and convincing evidence. In any proceeding involving an Indian child, the grounds for any attempted termination shall beproved beyond a reasonable doubt and meet the requirements set forth in the federal Indian Child Welfare Act of 1978.
 
I. If the court terminates parental rights, it shall appoint a custodian for the child. Upon entering an order terminating the parental rights of a parent, the court may commit the child to the custody of the department, the petitioner or an agency willing to accept custody for the purpose of placing the child for adoption. In any termination proceeding involving an Indian child, the court shall, in any termination order, make specific findings that the requirements of the federal Indian ChildWelfare Act of 1978 were met.
 
J. A judgment of the court terminating parental rights divests the parent of all legal rights. Terminationof parental rights shall not affect the child's right of inheritance through the former parent.
 
What is important to note is that there must bea step-parent adoption.
 
Thus, the legal termination of parental rights must follow the procedures outlines in the law above. There are, however, ways of attempting to model an order that achieves a similar end without an adoption or abuse and neglect etc.

Termination of Parental Rights Part 1

Posted on March 28, 2013 at 4:08 PM Comments comments (162)
 
How does one terminate or relinquish parental rights in New Mexico? This is a challenging question because in New Mexico, often times Courts are reluctant to relinquish or terminate parental rights.
 
Parental rights are considered fundamental rights. The following is written from the perspective of a mother seeking to terminate an absentee biological father's parental rights. I'm often asked this very question.
 
There is a presumption that a child needs his or her parents as well as the financial security of two parents and only in rare circumstances will parental rights be totally abolished. However, there is a process where one can petition the Children’s Court to do either of those actions.
 
Firstly, let’s discuss voluntary relinquishment of parental rights. I consulted with one attorney who felt it was at least theoretically possible to voluntarily relinquish one’s parental rights. Two other attorneys believed voluntary relinquishment was in practical terms out of the question. The first attorney suggested drafting and filing with th eChildren’s Court a pleading called “Consent to Relinquish Parental Rights”. This would have to be done by the child’s biological father.
 
However, before going down this path too far,we must consider that generally speaking, one voluntarily relinquishes parental rights in cases of neglect and abuse. And in essence, the Department of Children Youth and Families steps in. Here is the relevant law with respect tovoluntary relinquishment of parental rights to CYFD:
 
32A-5-24. Relinquishments to thedepartment.
 
A.    When a parent elects to relinquish parental rights to the department, apetition to accept the relinquishment shall be filed, unless an abuse orneglect proceeding is pending.  If an abuse or neglect proceeding ispending, the relinquishment shall be heard in the context of that proceeding.
 
B.    In all hearings regarding relinquishment of parental rights to thedepartment, the child shall be represented by a guardian ad litem.
 
C.    If a proposed relinquishment of parental rights is not in contemplationof adoption, the court shall not allow the relinquishment of parental rightsunless it finds that good cause exists, that the department has made reasonableefforts to preserve the family and that relinquishment of parental rights is inthe child's best interest.  Whenever a parent relinquishes his parentalrights pursuant to this subsection, the parent shall remain financiallyresponsible for the child.  The court may order the parent to pay thereasonable costs of support and maintenance of the child.  The court mayuse the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonablepayment.
 
D.    When a parent relinquishes the parent's rights under this section, theparent shall be notified that no contact will be enforced by the court,regardless of any informal agreement, unless the parties have agreed to an openadoption pursuant to Section32A-5-35 NMSA 1978.  The consent forrelinquishment shall be in writing and shall state that the parties understandthat any informal agreement allowing contact will not be enforced by thecourts.
 
 
Please note that in paragraph C. the Court must find that good cause exists AND that CYFD has made reasonable efforts to preserve the status quo. end of part 1
 

Same Sex Marriage Now Legal in New Mexico?

Posted on March 26, 2013 at 6:03 PM Comments comments (173)
Is same-sex marriage now legal in New Mexico? Yes according to the City Attorney's Office of Santa Fe and maybe according to New Mexico's Attorney General Gary King. The argument goes something like this: Our state statutes do not define marriage as being expressly between a man and a woman. Perhaps when the statute was drafted some years ago there was an assumption that only heterosexual couples would seek marriage. Who knows? Both statutory and constitutional law provide that New Mexico must recognize marriages which are validly performed in other states. Thus a homosexual couple married in California or D.C. would under this rationale be recognized as a legal married couple in New Mexico.
 
Our Attorney General has stated that he welcomes the issue and believes that same-sex marriage is probably legal in New Mexico. The mayor of Santa Fe is calling for the issuance of same-sex marriage licenses, so I'm sure the question will be tested in our courts soon.

Happy Thanksgiving

Posted on November 23, 2012 at 11:07 AM Comments comments (221)
Even in tough times, we all are called to take a few moments and inventory our lives. Despite whatever challenges we are facing, all of us have at least something to be thankful for. 

Have a Happy and drama-free Thanksgiving Weekend!

Relocation: Risk Assessment

Posted on November 20, 2012 at 7:21 PM Comments comments (159)
Here's a great article from the Atlanta Bar Association. People might find it interesting. While this information is firstly based on Georgia law and secondly it's offered herein for general educational purposes, New Mexico follows similar guidelines as suggested in this article. You're invited to ask your attorney for specific details.

Relocation: Risk Assessment Howard Drutman, Ph.D. & Marsha Schechtman, LCSW(The Family Lawyer, Atlanta Bar Association, July 2011)

One of the most difficult areas of child custody litigation is the dreadedrelocation case. These cases are increasing due in large part to the current economic conditions combined with an increasingly mobile society. Courts throughout the world are struggling with philosophical assumptions to drive decision making in relocation cases. Georgia went through its last paradigm shift with the Bodne v. Bodne Supreme Court decision. No longer is there a presumption that if the primary custodian would like to relocate it is automatically in the child’s best interest. 

Currently the focus is on what is the child’s best interest at the time of the relocation.When there are two competent and loving parents and one of them must relocate, the children suffer even under the best of circumstances. William Austin, Ph.D. conceptualized relocation evaluations in terms of risk management (Austin, 2008). The goal of Dr. Austin’s risk assessment model was to assess and recommend the least damaging alternatives to resolve the relocation as well as the behaviors to engage in to minimize the negative effects of relocation on the child. He referred to his model as the Relocation Risk Assessment. Dr. Austin saw the role of the child custody evaluator in these relocation cases as the scientist who predicts potential outcomes for the court. The examiner presents in their findings the risks and benefits to the child if they relocate or if they stay with the other parent who is not relocating.

The effects of relocation on children will be covered in a future article. The focus of this article is on factors that the psychological literature has shown to be significant risk factors to children in relocation cases. Writing in the journal, Family Court Review in 2008, Dr. Austin outlined his Relocation Risk Assessment which contains a number of risk factors that should be addressed to determine what is in the best interest of the child during an assessment for a pending relocation. The following is a description of the major risk factors to be assessed:

1. AGE OF THE CHILD: Very young children are at risk of disrupting their attachment relationship with their non-residential parent. There is also a risk of the non-residential parent dropping out of the child’s life or at best playing a diminished role. Adolescents are also at high risk since in a relocation situation the teenager may end up without a father figure to stabilize the adolescent behavior. Furthermore, traveling to the non-custodial parent also means taking the teenager away from their peer support network which may lead to the adolescent feeling that they’re missing out on peer activities while with the non-custodial parent.
2. GEOGRAPHICAL DISTANCE AND TRAVEL TIME: Whenever either parent lives greater than a one-hour travel time from each other there is an increased likelihood that the noncustodial parent will drop out of the child’s life or have a diminished role in the child’s life (Hetherington & Kelly, 2002).
3. PSYCHOLOGICAL STABILITY OF THE RELOCATING PARENTS AND PARENTING EFFECTIVENESS OF BOTH PARENTS: It is important to know the psychological stability and level of functioning of the relocating parent. If the parent has a significant psychiatric disorder or an addiction this could affect the parent’s ability to manage the child’s adjustment to a new location. For example, if the parent is struggling with maintaining sobriety the child may not get the necessary attention and assistance to help them adapt to a new environment, school, friends, and activities. An impaired parent will be challenged to effectively assist the child with the adjustment to their new location. To further complicate the situation is the child’s missing the relationship with the non-custodial parent which is likely to be a significant loss for the child.
4. INDIVIDUAL RESOURCES/INDIVIDUAL DIFFERENCES IN THE CHILD TEMPERAMENT/SPECIAL DEVELOPMENTAL NEEDS: The child’s temperament and resourcefulness should be assessed to evaluate any special needs and strengths of the child. In 1986, Block, et al. studied young children and found that pre-separation measures of psychological functioning were the best predictors of post-divorce adjustment. In other studies temperamental differences of children predicted post-divorce adjustment. It should also be noted that males are at significantly higher risk during relocation. Children with an easier temperament are better able to handle the challenges inherent in relocation to a new area. Some of the areas to assess in the child are their social and emotional intelligence and their ability for successful social interaction. This social competence would help the child adapt social to the new environment and assist the child in developing new peer relationships and support networks.
5. INVOLVEMENT BY THE NONRESIDENTIAL PARENT: A number of researchers have studied the relationship between children and their non-custodial parent. The research is clear that children have their best overall adjustment, post-divorce, when they have meaningful relationships with both of their parents combined with low conflict between their parents. Research also indicates that children do better when they have a relationship with their non-custodial parent. The evaluator needs to assess the extent to which the particular relocation will alter the non-residential parent’s parenting time with the child following the relocation.
6. GATEKEEPING AND SUPPORT FOR THE OTHER PARENT-CHILD RELATIONSHIP: In a prior edition of The Family Lawyer (Drutman & Schechtman, February 2011) we wrote on the concept of gatekeeping.  Gatekeeping is essentially the custodial parent restricting or excluding the non-custodial parent from child care and involvement with the child. Research has shown that children do better when they have relationships with both of their parents. A relocating parent who uses gatekeeping behaviors to exclude the non-custodial parent leaves the child at risk for alienation, visitation refusal, and other troubling behaviors.
7. INTERPARENTAL CONFLICT AND DOMESTIC VIOLENCE: Numerous studies have shown the negative effects on the children of exposure to verbal conflict between parents. This is particularly true of children whose parents are divorced. As the level of interparental fighting increases, so does the risk to the child. Domestic violence places the child in significant risk regardless if the violence is directly targeted at the child or not.
8. RECENTNESS OF THE MARITAL SEPARATION: Hetherington (1993, 1998 & 1999) researched the effects of conflict on children post-divorce. Hetherington noted that conflict is significantly higher during the time of the divorce and for a period of time after the divorce is final. During that period of time there is less authoritative parenting, greater parental stress, and poorer adjustment by the children. It should be noted that parental conflict tends to decrease at approximately 2 years post divorce. It is much more risky to make a move during the first two years post-divorce since the family unit is still in transition and adjusting to the new family constellation. Holding off on relocation for at least two years post-divorce may allow the individual family members to psychological settle down and thus have the psychological resources to assist the child.To determine the appropriateness of relocation it is important to assess all of the above issues to thoroughly seek out the risks that are facing the child if they move to the new location or they stay in their current location. 

William Austin, Ph.D., writing in the journal Family Court Review (2008, p. 359) writes:“The evaluator can help the court by making predictions about the degree of risk for what level of long-term harm, or developmental outcomes for the child, that are likely to be associated with the decisional alternatives. Only the decision maker can determine if the level of predicted risk and stakes surpasses a “threshold of harm” (Austin, 2000b), to deny the child’s relocation, and if needed, to change the primary residential parent. The nexus between best interests and least detriment is central to the process where mental health expert analysis becomes transformed into judicial prediction and decision. In the end, the trier of fact makes a discretionary decision if relocation would be expected to produce a sufficient level of harm to the child to deny the move or if the data suggest there is likely to be a successful relocation. 

The evaluator’s risk analysis and behavioral descriptions of the family can help the decision maker reduce the level of uncertainty in resolving the relocation dilemma.”It is essential to fully assess the risks, benefits, and the protective factors to make the best prediction of what is likely to happen to the child with and without the proposed relocation. Developing a plan to mitigate the negative effects of the relocation will entail behavioral accommodations to decrease the risks from the lists above. For example, teaching parents how to decrease conflict; increase appropriate parenting behaviors; allow significant involvement in parenting of the non-custodial parent; assisting the child learn coping skills, etc. will lead to a better outcome regardless if the child relocates or not.Since we do not have a crystal ball that foretells the future a risk assessment evaluation offers the best systematic approach to aid in the determination of what is in the child’s best interest in a potential relocation.

Austin, W.G. (2008b). Relocation, Research, and Forensic Evaluation: Part II: Research in Support of the Relocation Risk Assessment Model. Family Court Review, 46.Braver, Sanford, et. al. (2003) Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations. Journal of Family Psychology, 17, 2.Drutman, H. & Schechtman, M. (2011) Maternal Gatekeeping: What is it, and is it Always Bad? The Family Lawyer, Atlanta Bar Association-Family Law Section. February 2011.Hetherington, E.M. & Kelly, J. (2002) For better or for worse: Divorce reconsidered. New York: Norton.

The Importance of an Expert

Posted on November 20, 2012 at 6:44 PM Comments comments (45)
Recently a client asked me how to convince the Court to allow them to move out of state and take their kids with them. We talked about the nature of the proposed move and the fact that the other parent would likely oppose the move. Our Courts really do not like kids to move out of New Mexico even if the moving custodial parent has good solid reasons for the move. If you are the custodial parent and wish to relocate and take your children with you, and the other parent is uncooperative, you will need the Court's permission. An evidentiary hearing will likely be held and you will need an expert. The expert is a licensed psychologist who focuses on custody evaluations. One key thing I stressed to my client was the importance of an expert witness in terms of convincing the powers that be to grant your petition.Often times parents do not wish to pay for an expert thinking it to be an extravagance. However this hearing is often times the only shot at the Court seriously entertaining your request. The same idea was expressed throughout a recent two-day educational institute I attended on custody issues. I'm not trying to refer people to an expert, but simply to help you understand their importance. 

What Financial Information Am I Required to Disclose in Child Support and Divorce Cases?

Posted on September 21, 2012 at 12:28 PM Comments comments (437)
What Financial Information Am I Required to Disclose in Child Support Cases and Divorce Cases?

New Mexico law provides that in Family Law cases such as Divorce and Child Support matters, certain highly detailed financial information must be disclosed. Before beginning the legal process, there are a number of documents that you should try to obtain. These documents are used for the purposes of determining interim division of income and expenses, spousal support, and child support.   
 1.     All state and federal tax returns for the last two years; 
 2.     Mortgage and property tax statements for any real property; 
 3.     Paystubs for the previous six months; 
 4.     401(K) and/or IRA and/or Pension statements for the previous one year; 
 5.     Credit card monthly statements for the last twelve months; 
 6.     Monthly statements for all bank accounts and investments; 
 7.     Loans documents; 
 8.     Monthly bills to include rent, PNM, water, cable etc. 
 9.     Transportation expenses; 
 10.   Insurance documents

What is the Second Judicial District Court Clinic?

Posted on August 27, 2012 at 9:28 PM Comments comments (119)
What is the Second Judicial District Court Clinic?
The Second Judicial District Court Clinic is a service provided by the Court for parties when they are unable to agree on timesharing (custody). Parties are referred to the Clinic by order of a District Judge (Family Court). The Clinic is staffed by professional counselors and therapists who investigate the case and make recommendations. Often times the Court will adopt these recommendations after a hearing. 

The Court Clinic offers three basic services: mediation, advisory consultations, and finally priority consultations. In many cases, parties start with mediation, where they meet with the Court clinicians and without lawyers. If timesharing issues cannot be worked-out, the parties often times are referred to an Advisory Consultation. 

During an Advisory Consultation, the Court clinicians meet with the parties separately, as well as the children and nearly anyone else who might have helpful information. Interviews and testing is conducted in an effort to craft a parenting plan that's in the best interests of the children. The process is lengthy, costly to both parties, and invasive.

The final tier of services is the Priority Consultation. This is a more extreme measure and the process is designed to determine whether  children are in an immediate threat. 

Sometimes in highly contested cases, the Judge will appoint a Guardian Ad Litem which is an attorney who is hired to represent the interests of the child(ren). These attorneys are paid for by the parties. 

If the parties are still unable to come to an agreement with respect to timesharing, the next step is a full-blown Custody Evaluation Hearing. This is usually a very costly endeavor where private psychologists and other experts are retained by the parties to prove which parent is better suited for primary parental responsibility. 

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