Legal Services: Resources for Child Welfare Clients

1. Legal Services: Resources for Child Welfare Clients Carol Garner, Esq., Law Access New Mexico Larry Kronen, Program Director, Kinship Guardianship Program, Pegasus LSC Liz McGrath, Executive Director, Pegasus Legal Services for Children Erin Olson, Director, Volunteer Attorney Program State Bar of New Mexico

2. Legal Services: Resources for Child Welfare Clients Agenda: • Overview of legal services system • Grandparents & the Kinship Guardianship Act • Orders of Protection & Custody Orders • Legal services for children & youth • Question & Answer

3. Legal Services: Resources for Child Welfare Clients Who’s Here?

4. Overview of theCivil Legal Services System

5. New Mexico’s Civil Legal Services System • A network of non-profit agencies • Providing civil legal aid to low-income individuals • Income eligibility varies by provider • Generally up to200% of FPG* ($47,100 for family of four) *2013 Federal Poverty Guidelines (see handout)

6. New Mexico’s Civil Legal Services System Weaknesses: • Services coordinated in ad hoc fashion • All agencies underfunded, not able to meet need • Can be very hard for low-income individuals to access services

7. New Mexico’s Civil Legal Services System Strengths: • Experienced, dedicated staff who want to help low-income clients • We are working hard to coordinate services, reduce overhead, and increase revenue so we can expand services.

8. System Structure • Statewide legal helpline – Law Access NM • Large statewide provider – NM Legal Aid • Large specialized provider – DNA People’s Legal Services (NW of state) • Numerous smaller agencies specializing in particular issues, populations.

9. Law Access New Mexico • Primary point of entry to system • Legal helpline for low-income New Mexicans • Income eligibility 200% of poverty

10. Law Access New Mexico • Family law • Landlord Tenant • Consumer law • Employment/Unemployment • Benefits

11. Law Access New Mexico • Help with self-representation • Referrals to other legal services • No citizenship requirement • Limited to help over the telephone

12. New Mexico Legal Aid • Statewide • Income eligibility • 125%-200% of FPG depending on legal area • No assistance to undocumented people • Except in Domestic Violence cases

13. New Mexico Legal Aid Offices in: Albuquerque Clovis Gallup Las Cruces Las Vegas Roswell Santa Ana Santa Fe Silver City Taos

14. New Mexico Legal Aid Legal services: • Domestic violence orders of protection • Family law (for DV victims) • Consumer law • Landlord/Tenant • Benefits • Foreclosure defense • Unemployment Insurance Compensation • Native American Program

15. DNA People’s Legal Services • Serves Native American communities • Crownpoint • Dulce • Farmington • Shiprock

16. DNA People’s Legal Services • Civil rights, tribal sovereignty • Domestic violence • Family law • Consumer law • Landlord/Tenant • Benefits • Education • Employment

17. Immigration • New Mexico Immigrant Law Center • Legal assistance to low-income immigrant families facing separation due to deportation, asylum seekers, and unaccompanied minors. • Catholic Charities • Legal assistance to immigrants in gaining legal status including victims of DV

18. Disability • Disability Rights New Mexico (DRNM) • Designated by Federal law to advocate on behalf of people with disabilities • Statewide • Native American Disability Law Center (NADLC) • Advocates for legal rights of Native Americans with disabilities • San Juan & McKinley Counties

19. Agencies focusing on Children • Pegasus Legal Services for Children • Advocacy, Inc.

20. Pegasus Legal Services for Children • Statewide • Services available depending on resources • Income eligibility: • Sliding scale for kinship care givers • Free to youth 23 and under

21. Pegasus Legal Services for Children • Young Parent Project • Homeless/Runaway Youth • Special Education • Juvenile Justice • Kinship Guardianship Program • Abuse/Neglect

22. Advocacy, Inc. • Abuse/Neglect – representation of children in 2nd Judicial District • Guardianship Program – uncontested cases statewide • Adoptions - uncontested cases statewide *Income eligibility – sliding fee scale for guardianship & adoptions.

23. Grandparents andKinship Guardianship

24. Guardianship • Guardianship of Minors Probate Code §45-5-201 et seq • Permanent Guardianship Children’s Code: § 32A-4-31 et seq • Kinship Guardianship Domestic Relations Code § 40-10B-1 et seq

25. KINSHIP GUARDIANSHIP ACT • Who May File • A kinship caregiver: an adult (not have to be a blood relative), with whom child resides, provides care, maintenance and supervision consistent with responsibilities of a parent

26. What the Petitioner Needs to Prove • Parents have consented in writing or • Parents’ rights have been terminated or suspended by a court order or

27. What the Petitioner Needs to Prove or • Child has lived with petitioner • Without an objecting parent in the home • For 90 days or more immediately preceding the date of filing and • The objecting parent is currently unwilling or unable to provide adequate care, maintenance, and supervision for the child and

28. THEGUARDIANSHIPIS IN THE CHILD’S BEST INTERESTS

29. When Will A Hearing Be Scheduled? • On the merits- • Between 30-90 days from filing • Temporary Kinship Guardianship • Within 20 days of filing the Petition

30. Orders of Protectionand Custody Orders

31. Orders of Protection • Restrains one party from committing acts of domestic violence • Prohibits further contact • Quick access to the Courts • Allows police to arrest if there is a violation

32. Orders of Protection • Further relief: • Exclude Respondent from home, school, work • Temporary custody or child support orders • Restitution from any damages • Other relief as necessary

33. Which Relations qualify for a DVOP? • Husband/wife (or ex) • Girlfriend/boyfriend (or ex) • Co-parent of a child • Grandparent • Continuing personal relationship (dating/intimate relationship) • Applies to same-sex relationships • Co-habitation not necessary • Stalking or Sexual Assault –no relationship required

34. Minors and DVOPs • As Petitioner: Parent or legal guardian can file OBO (on behalf of) a minor • Against minor or adult • As Respondent: Minors can be respondents - Must be served on parent or guardian of restrained minor

35. DOMESTIC ABUSENMSA §40-13-2(D) • Physical abuse or threat of physical abuse • Criminal trespass or criminal damage to property • Threat causing imminent fear of bodily injury by any household member • Stalking • Severe emotional distress • Harm or threatened harm to children • Harassment, telephone harassment • Sexual assault • Not included: self defense or defense of others

36. Obtaining DVOPs and Custody Orders “You need to get a restraining order” “You need to go get custody”

37. Getting a Restraining Order Proof needed: • Act of domestic abuse as defined by law • Continuing threat of continued abuse and harm.

38. DOMESTIC ABUSENMSA §40-13-2(D) • Physical abuse or threat of physical abuse • Criminal trespass or criminal damage to property • Threat causing imminent fear of bodily injury by any household member • Stalking • Severe emotional distress • Harm or threatened harm to children • Harassment, telephone harassment • Sexual assault • Not included: self defense or defense of others

39. Restraining order (cont’d) • While a DVOP may include a temporary custody order if the parties have children • The DVOP is not a substitute for a custody order

40. Restraining order (cont’d) • Temporary custody – 6 months • Petition to Establish Custody or • Motion to Modify Custody

41. DV Resources New Mexico Legal Aid 10 offices statewide Referrals through CYFD-funded agencies or other local referral partners 3 levels of service: representation, brief service, advice and counsel NMLA DV/SA/Stalking HELPLINE 505-243-4300 or 1-877-974-3400 Shelters/Service Providers – link to map of shelters http://cyfd.org/domestic-violence

42. Establishing & Modifying Custody

43. Establishing Custody • Petition to Establish • Paternity • Custody • Timesharing • Child Support

44. Establishing custody (cont’d) • File Petition • Serve opposing party with pleadings • Opposing party has 30 days to respond • Judge can then set a hearing • Can easily take 3 months to get before a judge

45. Establishing custody (cont’d) • Emergency Motion for Interim Order • Order to govern until hearing on merits • Can still take months to get a hearing • Difficult for person representing self

46. Modifying Custody • Re-open existing domestic relations/custody case • Substantial change in circumstances • Other parent must be served • 30 days for other parent to respond

47. Modifying Custody (cont’d) • 2 - 3 months to hearing • 2-3 weeks even if allegations of imminent serious physical threat to the child/ren • If situation is so dire - CYFD should be involved

48. Challenges in DV and Domestic Relations Cases • Process is complicated • Limited legal services (especially for non-DV) • Difficulty of putting on proof w/out a lawyer

49. Challenges in DV and Domestic Relations Cases • Must have clear proof of abuse or neglect • Critical to have CYFD investigator testify • Testimony must be in-person or by telephone

50. Challenges in DV and Domestic Relations Cases • Letters/affidavits are hearsay • Generally not admissible • Police reports are hearsay • Police officers must testify in person