Albuquerque Divorce Lawyer Blog

On September 26, 2012, the Court of Appeals of New Mexico issued its ruling in the case of State of New Mexico vs. Laura J. The Court of Appeals upheld the district court's termination of Laura J.'s parental rights, but determined that the New Mexico Department of Children Youth and Families ("CYFD") had not met its burden to attempt to place Laura J.'s child with a relative. The Court of Appeals remanded the case back to the district court and required CYFD to conduct a thorough inquiry into placement of the child with a family member who had sought custody of the child.

The case began in December, 2008, when CYFD received information that Laura J. was abusing drugs and physically neglecting her child. During CYFD's investigation, it found that the child's hands and face were dirty; he had scratches and abrasions on his hands and shins, and a rash on his buttocks. CYFD officials took the child to the hospital because he could not sit up, could not hold his head up and was not responsive. The child tested positive for opiates, had impetigo and was clearly hungry. The child was then placed in foster care.

The district court ordered CYFD to retain custody of the child and he was placed with a foster family while permanent placement was explored, which included giving Laura J. time to work on her issues so that she could potentially be reunited with the child. When Laura J. was admitted to a rehabilitation facility, the child was placed with her until she was unsuccessfully discharged at which time the child was again placed with foster parents.

Laura J. began therapy, but was erratic with attendance and her therapist did not believe she was remaining sober. By October, 2009, Laura J. was not making it to all her visits with the child, failing to take urinalyses, missing therapy appointments and missing parenting appointments. On April 21, 2011, the district court issued a final judgment terminating Laura J.'s parental rights because the causes and conditions of Laura J.'s neglect were not likely to change in the foreseeable future, even with CYFD's efforts to assist her.

The New Mexico Abuse and Neglect Act ("the Act"), 1978 NMSA § 32A- 4-1 et. seq., governs the termination of a parent's rights and subsequent placement of their child or children. A parent's rights can be terminated if the court finds clear and convincing evidence that the parent is unable to properly care for their child and that the conditions and causes of the neglect are unlikely to change in the foreseeable future. Under the Act, CYFD is charged with investigating allegations of abuse of neglect and finding placement for children when their parents are unable or unwilling to care for them. CYFD is required, whenever possible, to preserve the unity of a child's family by placing children with family members for foster care or adoption.

In Laura J., the Court of Appeals found that CYFD had made reasonable efforts to accommodate Laura J.'s emotional and addiction problems by providing referrals to services intended to help her fight her addiction and become a better parent. However, Laura J. failed to take advantage of CYFD's efforts to help her and the district court was convinced that Laura J's behavior would not change for the foreseeable future. Therefore, the Court of Appeals upheld the decision to terminate Laura J.'s parental rights.

However, the Court of Appeals found that CYFD was required to make every effort to identify any relatives of Laura J.'s child who were appropriate candidates to accept custody of the child and investigate whether any of those relatives were willing to accept custody. Laura J.'s cousin Colin had repeatedly approached CYFD asking to be considered as a custodian for the child, but CYFD did not consider placing the child with Colin. The Court of Appeals found that CYFD had not made a reasonable effort to place the child with a family member because it failed to consider Colin as a custodian for the child. The Court of Appeals went on to say that the district court has a duty to make a serious inquiry into whether CYFD has met its burden with respect to placing children with family members.

Related Reading:
Acquiring Third Party Child Custody in New Mexico
Rules Regarding Parental Fitness in New Mexico Kinship Guardianship
Petitioning for Guardianship Under New Mexico's Kinship Guardianship Act

Collins & Collins, P.C.

Albuquerque Attorneys

Any court order addressing custody should include some sort of parenting plan. This is especially important in states like New Mexico where joint custody is preferred because a parenting plan provides an outline of how parents will make decisions about and share time with their child. A detailed and comprehensive parenting plan can also help alleviate conflict between parents and relieve the stress on a child by providing predictability. While most people remember to include the basics of raising the child in their parenting plan, like days and times for exchanges and payment of child support, there are some issues that tend to be forgotten, but that are also important.

Visitors
Parents may wish to include rules about visitors in their parenting plan. The parenting plan may simply state that the custodial parent should use proper judgment before bringing visitors into the home while the child is there. This situation puts trust in the custodial parent, without requiring them to jump through hoops to have visitors. The parenting plan may also include provisions about overnight guests and address issues concerning a parent's significant other. It is important to remember that the parenting plan should be focuses on what is in the best interest of the child and should not be used as a method to antagonize the other parent.

Extracurricular Activities
Many children are involved in extracurricular activities, which can be a great source of enrichment for the child. But they can also pose a number of questions to be answered by a parenting plan. First, some parents may not wish their child participate in certain activities; the parenting plan should name what activities are currently agreed upon and provide instructions for how parents will deal with choosing future activities. Second, the parenting plan can address how the costs of these activities are divided between parents. While some activities are fairly inexpensive, others such as playing a musical instrument or competitive sports can be very costly. Finally, depending on the relationship between parents, attendance at sporting events, concerts and other public events may need to be addressed. If the parents are unable to attend the events at the same time in a civil manner, they may need to split the events so that each can attend.

Cell Phones and Internet
One newer issue becoming more and more important is that of cell phones and internet usage. A parenting plan can address the age at which a child may have a cell phone, in what manner they may use it (for example, only in emergencies or only to call family), and how will the monthly cell phone bill will be paid. Similarly, a parenting plan can address a child's internet usage. Many parents are concerned about their child's usage of social media websites, and the parenting plan can discuss at what age the child is able to use such sites and what manner of monitoring the parents will do.

Religion
The parenting plan should address what religion, if any, the child will practice and what that practice entails. Some religious practices are very involved and can include attending services or classes multiple times per week, which can infringe on a parent's timesharing with the child. Further, when parents follow different religious practices, it can be confusing for a child and parenting plan should address how to ease that tension.

As any parent knows, there are a myriad of decisions to make in order to raise a child. Even the most thorough parenting plan cannot answer all of those questions. However, taking the time to really think about potential parenting issues and what is in a child's best interest can make a parenting plan an extremely effective tool for co-parenting. Working with an experienced family law attorney can help ensure that the parenting plan addresses as many potential issues as possible while still complying with the law.

Related Reading:
Common Issues with New Mexico Parenting Plans
The Basics of New Mexico Child Custody Jurisdiction
Custodial Interference in New Mexico Divorce & Family Law Cases

Collins & Collins, P.C.
Albuquerque Attorneys