CHILD WELFARE LAW: HISTORY & KEY PRINCIPLES Dan Pearlman djpearlman1@msn daniel.pearlman@state.nm

1. CHILD WELFARE LAW: HISTORY &KEY PRINCIPLES Dan Pearlmandjpearlman1@msn.comdaniel.pearlman@state.nm.us

2. Evolution of the Abuse/Neglect SYSTEM 1899: First juvenile courts established to “save” potentially criminal children from becoming criminal. • No distinction : abuse/neglect and delinquency • Child “saving” = removal/placement of “problem kids” • No rights for parents • “Parens Patriae,” primarily focused on poor children • Little change until late 1960’s/1970’s, when parental right to due process was established

3. Constitutional Rights of Parents Develop • 1920’s : parents have a fundamental liberty interest in the “care, custody and control” of their children (though not to due process before removal). • Meyer v. Nebraska, 262 U.S. 390 (1923) (teaching foreign language in school) • Pierce v. Society of Sisters, 268 U.S. 510 (1925) (private schools) • “It is cardinal with us that the custody, care and nurture of the child reside first in the parents.” • Prince v. Massachusetts, 321 U.S. 158 (1944) (right to practice religion)

4. In Re Gault,387 U.S. 1 (1967) “Due process, not benevolent intentions, produces justice.” – Justice Abe Fortas • Struck down parens patriae authority of the court to remove children from home without a hearing (to deal with criminal conduct). • Did not disturb the parens patriae doctrine in dependency cases. • Hailed by some as advancement in children’s rights. • Criticized by others as the criminalization of the juvenile court and the beginning of the end of the court’s authority to treat children like children rather than adults. • “Child’s best interest” today can retain some of the old paternalism, if we are not careful.

5. Constitutional Rights of Parents 1972:Unwed father could not be presumed to be an unfit parent; Entitled to a hearing, under equal protection clause) - Stanley v. Illinois, 405 U.S. 645 1982: The interest of parents in the care and custody of their children is a fundamental liberty interest protected by the due process clause of the 14th amendment. - Santosky v. Kramer, 455 U.S. 745 (because of due process protection, standard of proof for TPR must be clear and convincing). * Extended to adjudications by NM statute 32A-4-20(H). * 83 years from the first children’s courts, 15 years after Gault, came the establishment of due process for TPRs in Santosky.

6. Despite the Supreme Court's repeated recognition of these significant fundamental parental liberty interests, these interests have never been seen to be without limits. -Lehr v. Robertson, 463 US 248 (1983). -Gerald D., 491 U.S. 110 (1989). 1980’s

7. The Right to Parent Requires a Familial Relationship – Biology is not enough Lehr v. Robertson: The mere existence of a biological link does not merit . . . constitutional protection.To have constitutionally protected parental rights, an unwed father must take steps to establish a “significant custodial, personal, or financial relationship with his child.”

8. Sometimes marriage is enough. • Michael H. v. Gerald D.:Despite established relationship with child, bio father's due process was overcome by state statutory presumption that the husband of the child's mother was the child's only legal parent. • A plurality said the parental liberty interest was a function, not simply of biology and connection, but of the broader and apparently independent societal interest in family. Somewhat anomalous. • Holding only upheld a state statute. It did not hold that unwed father’s can not have protected liberty interests. New Mexico law says that they do. A child can have two fathers with legal rights in NM.

9. Familial RelationshipParent in New Mexico§ 32A-1-4(O) “Parent” under Children’s Code includes a biological or adoptive parentif he/she has a constitutionally protected liberty interest in the care and custody of the child. - Per Lehr case, probably means “significant custodial, personal, or financial relationship with his child.” - Note: marriage is not mentioned. BUT NM Adoption Act adds rights for other fathers.

10. Familial Relationship: Acknowledged Father In Adoption Act§ 32A-5-3(F)(4) Unwed bio father can become an “acknowledged father,” if he: • Acknowledges paternity by registering with the putative father registry; or • Is on the birth certificate (with his consent); or • Is obligated to pay support (because of a written voluntary promise or court order); or • has openly held out the child as his own by establishing a custodial, personal or financial relationship with the child.

11. Acknowledged Father The adoption petition must be served on the acknowledged father. § 32A-5-27. The acknowledged father’s consent to adoption is required. § 32A-5-17. But so is the presumed father’s (husband):

12. Presumed Father § 32A-5-3(V) (1) husband of the biological mother at the time the adoptee was born; or (2) was married to the mother and either the adoptee was born during the term of the marriage or the adoptee was born within three hundred days after the marriage was terminated by death, annulment, declaration of invalidity or divorce; or (3) attempted to marry the mother before the adoptee's birth by a marriage solemnized in apparent compliance with law, although is or could be declared invalid.

13. Presumed Father • Presumed father’s consent to adoption is required. § 32A-4-17 • So serve petition on him as well as bio dad. • Presumed father appears to have statutory rights that exceed the constitutionally protected liberty interest.

14. Therefore, abuse/neglect cases need to determine both the constitutional and statutory rights of both a biological father and a presumed or acknowledged father. Bio father may or may not have a protected liberty interest. Husband must consent to adoption even if no relationship with child.

15. Examples • 1- Husband is presumed father but is not bio dad. The bio dad has established a relationship as an acknowledged father. • 2 - Bio dad was married to mother when child was conceived, so is a presumed father, but he has not established a relationship and is not on the birth certificate. Mom’s boyfriend after divorce has established a relationship with the child.

16. Parents’ Substantive Rights “An unfavorable personal status, such as low IQ, poverty, mental illness, incarceration, prior convictions, or addiction, is … relevant only to the extent that it prompts either the harms defined as abuse, or the neglect which is defined as the failure to provide ‘proper parental care and control’ or an inability ‘to discharge his responsibilities to and for the child.’” In re Adoption of J.J.B., 119 NM 638 (1995).

17. FIT PARENTS ARE ENTITLED TO LEGAL CUSTODY (usually) • “Where the custodial parent has neglected child, the noncustodial parent is entitled to custody unless the Department can establish the noncustodial parent is unfit.” Mary L., 108 N.M. 702 (Ct.App. 1989); reaffirmed, Lisa A., 2008-NMCA-087. BUT NOTE: Department has a legal duty to investigate allegations of current unfitness. Court can granting Department legal custody until the investigation is complete.”In re A.H., 1997-NMCA-118 “Extraordinary circumstances may arise [warranting state custody] where, after a long separation between parent and child, the necessary parent-child bond has disintegrated [even though parent not found unfit].” Benjamin O., 2007-NMCA-070

18. Parents’ Procedural Rights Right to Due Process: • Due process = notice and opportunity to be heard. Mafin M., 2003-NMSC-015. • Parents’ due process rights must be balanced against the state’s compelling interest in the child’s welfare. In re Adoption of J.J.B., 119 N.M. 638 (1995); Matthews v. Eldridge, 424 U.S., 319 (1976). • Department (as well as court) has responsibility to assure fairness and due process for parents. Case reversed because RA did not receive notice of filing of TPR. Ronald A., 110 N.M. 454 (1990).

19. Parents’ Procedural Rights: Effective Assistance of Counsel The right to counsel is not constitutional. - Lassiter, 452 US 18 (1981). But NM statutory right to counsel implies right to effective assistance of counsel. - In re Tammy S., 1999-NMCA-009.

20. Parents’ Procedural Rights:Notice and Opportunity to be Heard Parents who are not present at trial must be afforded an opportunity to be heard and present a defense. Alternative measures must allow the parent to: testify on his/her own behalf, cross-examine witnesses, confer with counsel, and have State produce clear and convincing evidence : no proffers. Rosa R., 1999-NMCA-141; Stella P., 1999-NMCA-100; Ruth Anne E., 1999-NMCA-035.

21. Abuse and Neglect Cases Are Not Criminal Proceedings Purpose of abuse and neglect proceedings is to protect the interests and well-being of children, not to punish the parent. The child’s welfare is the paramount interest at stake.

22. Abuse and Neglect Cases Are Not Criminal Proceedings “Because neglect and abuse proceedings are civil proceedings, the Confrontation Clause of the Sixth Amendment of the U.S. Constitution…is not at issue [in context of hearsay exceptions].” Pamela A.G., 2006-NMSC-019. But NOTE: similar interests do protect parents’ right to cross examine witnesses. Exclusionary rule does not apply in the context of abuse and neglect proceedings because it might thwart the State’s interest in the protection of children. Michael T., 2007-NMCA-16.

23. Rights of the Child The courts have not explicitly articulated the rights of children. The truth is self-evident that children have certain inalienable needs: • to be free from physical and emotional harm at the hands of their caretakers; and • to be provided with the essentials of food, shelter, education and medical care. If the parent cannot fulfill “the duty to protect, train and discipline the child and to provide the child with food, shelter, personal care, education and ordinary and emergency medical care,” the state may intervene legally. Cf. § 32A-1-4(N) (defining “legal custody”).

24. Best Interest of the Child is Paramount Although best interest of the child findings are required, “best interest of the child” is not defined in statute or case law. Best Interest of the Child = touchstone against which every placement and permanency decision must be tested. Best Interest of the Child can be understood by remembering the purposes of the Children’s Code, as described by § 32A-1-3(A): • first to provide for the child’s care, protection and wholesome mental and physical development, • and then to preserve the unity of the family whenever possible. • The child's health and safety shall be the paramount concern. See also Michael T., 2007-NMCA-163.

25. Best Interest of the Child: The GAL A child’s best interest is protected by due process and fulfillment of the requirements of the Code, especially • the appointment of and zealous representation by a GAL or Youth Attorney. § 32A-4-10(F). § 32A-1-7(A): A guardian ad litem shall zealously represent the child's best interests in the proceeding for which the guardian ad litem has been appointed and in any subsequent appeals. § 32A-1-7(D) further requires the GAL, after consultation with the child, to "convey the child's declared position to the court at every hearing." 

26. Best Interest of Child: The Youth Attorney • Best interest is different for every child.  But, older children are more likely to have a better idea of their best interest. • §§ 32A-1-7.1 & 32A-4-10 (2005) established that youth 14 & older have YAs, not GALs. • 32A-4-10(F) requires the court to assure that the GAL zealously represents the child's best interest and that the YA zealously represents the child. • To that end, the YA protects the youth client's best interests through zealous advocacy and effective client counseling.

27. Everyone Involved Should Protect the Best Interest of the Child Since the goal of the proceedings is the best interest of the child, ALL the parties AND the Court should be working to protect the child’s best interest. Of course, each party’s view of best interest—and approach to protecting the child’s best interest--may be different.

28. Federal Statutes – More Cooks for the Soup Federal laws and regs impose requirements that must be met to ensure essential federal funding for: • child welfare services • family preservation • family support services • foster care maintenance payments

29. Federal Statutes • CAPTA: Child Abuse Treatment and Prevention Act of 1974, 42 U.S.C. §§ 5101-5107. • GALs for children • Definitions of child abuse and neglect • Reporting and immunity requirements • All now incorporated in NM law • 1980 Adoption Assistance and Child Welfare Act, PL 96-272: • Court Oversight • Reasonable efforts to preserve family • Periodic review

30. Federal Statutes –cont’d • 1981Social services block grants created CPS funding to states. 1997 ASFA: Adoption and Safe Families Act, PL 105-89: • Stop children languishing in foster care. • Safety, permanency and well-being. • Court determines permanency goal within 12 months. • TPR must be filed when child has been in custody 15 of last 22 months unless compelling reason not to. • All now in NM law

31. ASFA - Best Interest of the Child and “Contrary to the Welfare” The court shall determine whether: • continuation in the home would be contrary to the child’s welfare, and • reasonable efforts were made to prevent removal from the home. 45 CFR 1356.21 (ASFA Regs - conditions of funding) ASFA EMPHASIZES THE CHILD’S SAFETY, PERMANENCY AND WELL-BEING.

32. Termination of Parental Rights ASFA: TPR proceedings must be filed for a child in foster care 15 of the most recent 22 months unless compelling reasons not to file. • Good Practice: TPR should be filed no later than 30 days after the agency or court determines filing is appropriate (= change of permanency plan to TPR).

33. Compelling Reasons Not to File TPR after 15/22 months in foster care: • Parent has made substantial progress and it is likely that the child will be able to safely return home within 3 months. • Child has a close and positive relationship with a parent and a non-TPR permanent plan will provide the most secure and appropriate placement • The child is fourteen years of age or older, is firmly opposed to TPR and is likely to disrupt an attempt to place him with an adoptive family.

34. Compelling Reasons Not to File TPR, cont. • A parent is terminally ill … provided that the parent has designated a guardian for his child. • The child is not capable of functioning in a family setting. . . . • Grounds do not exist for TPR. • The child is an unaccompanied, refugee minor (international issues); or • Adoption is not an appropriate plan for the child.

35. Termination of Parental Rights Samantha D., 106 NM 184 (Ct.App. 1987) • “Termination of parental rights …need not always occur in the context of adoption. There are obvious occasions when the state must intervene on behalf of an abandoned, abused or neglected child who is not awaiting adoption but who, in the child's best interests, must be permanently removed from the custody of its parent.” • “Clinical” reasons why child needs to be permanently protected from parent.

36. Overall Goals • Avoiding unnecessary separation of children & families. • Timely decisions regarding placement and permanency: • Concurrent planning • Alternative dispute resolution • One family/one judge • Providing competent and adequately compensated representation. • Providing notice and opportunity to be heard.