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

The New Mexico Kinship Guardianship Act ("the Act") establishes a legal procedure that protects the relationship between a child and what is known as a kinship caregiver. Under the Act, a kinship caregiver is an adult who has been caring for a child as a parent would, but who is not the child's parent.

A kinship caregiver may be a family member, but does not have to be related to the child if that person has provided consistent care, maintenance and supervision of the child. The Act allows kinship caregivers to be appointed as legal guardians so that child they care for can have a safe and stable home.

Under the Act, a kinship caregiver may petition to be appointed as the guardian of a child when the child has lived with the kinship caregiver for more than 90 days, without either parent. The kinship caregiver must then show the court that the child's parents consent to the guardianship or that the parents are unwilling or unable to care for the child.

The New Mexico Supreme Court recently overturned a New Mexico Court of Appeals case involving the Act. In the case of Freedom C. v. Patrick D., the Court addressed a very specific portion of the Act that applies when one or both parents refuse to consent to the appointment of a kinship guardian.

The central issue before the Court in Freedom C. was whether both parents have to be deemed unfit and unwilling to care for a child before a kinship guardian can be appointed, or if a kinship guardianship is appropriate as long as each parent is either unfit or unwilling. The Supreme Court concluded that the legislature intended that each parent must meet only one of the requirements regardless of whether each parent meets the same requirement.

In Freedom C., the mother consented to the grandparents being appointed as the kinship guardians of her child. However, the father objected to the appointment. Prior the filing of the petition for kinship guardianship, the mother and the child resided with the grandparents for more than 90 days, but the father did not. Also prior to the filing of the petition for kinship guardianship, the grandparents were granted temporary custody of the child, but the parents were provided with visitation privileges.

The Court concluded that both parents satisfied the requirements of the Act because the father did not reside with the child during the 90 day period when the grandparents petitioned for guardianship and both parents were either unable or unwilling to adequately care for the children.

Pursuing a kinship guardianship can be similar to a traditional custody action in that the court is always concerned about reaching a decision that is in the best interest of the child. However, as Freedom C. shows, the procedural requirements for a kinship guardianship are very specific and can differ from those that apply in more typical custody disputes.

Anyone considering pursing a kinship guardianship action should consult with a family law attorney as soon as possible to ensure that they meet the initial requirements of the Act and to discuss how to successfully pursue a kinship guardianship claim.

Related Reading:
Extended Family Members Have Few Rights Over Children
Acquiring Third Party Child Custody in New Mexico
Petitioning for Guardianship Under New Mexico's Kinship Guardianship Act

Collins & Collins, P.C.
Albuquerque Attorneys

While the state of New Mexico considers it in the best interest of children to be raised by their parents, a kinship guardianship can be granted to caregivers if parents are unwilling, or unable to give a child the proper supervision, care and guidance needed. A kinship caregiver can be a family member, or other person, who has formed a bond with the child and who is willing, and able to care for the child.

The Kinship Guardianship Act creates a legal process that temporarily suspends parental rights and essentially transfers these rights and responsibilities to the kinship caregiver. Because of the serious nature of this process, some parents may not agree to the appointment of a kinship guardian. If the parents do not consent, a kinship guardian must prove to the Court that the child has been living with the kinship caregiver for at least 90 days, that the parents are unwilling or unfit to care for the child or that some other extraordinary circumstances exist such that appointment of a kinship guardian is in the child's best interest.

This type of guardianship is not appropriate in child custody disputes between parents. A New Mexico Court of Appeals case further clarified the role of the Kinship Guardianship Act ("the Act") with respect to parental rights in Freedom C. v. Julie Ann D., et al. In that case, the father of the child appealed the district court's decision to grant the child's grandparents kinship guardianship. While the child's mother had agreed to the guardianship, he claimed that he never gave his consent, and that he was very much involved in the life of his child.

He also claimed that the 90-day residency provision of the Act was not met because the child still resided with the mother, as well as with the grandparents. The Act applies when the child is living away from both parents. The father argued that the mother and grandparents were using the Act to create an environment that allowed the mother to more successfully fulfill her parental role, while depriving the father of custody and parental rights.

The Appeals Court agreed with the father and found that the Act requires that both parents consent to the appointment of a kinship guardian, or be given a meaningful opportunity to do so. Further, the Court stated that kinship guardianship could not be used to allow one parent to unfairly exclude the other parent from the child's life, particularly where one parent still resides in the home with the child.

Custody disputes can be difficult. The Kinship Guardianship Act is not appropriate for the resolution of contested child custody. It is particularly unsuitable in situations where one parent is still residing with the child, or where one parent is attempting to limit the rights of the other parent.

If you are facing a difficult child custody situation, contact an experienced family law attorney to discuss your options. Applying the proper legal remedies can save both time and money, while protecting the best interest of the child.

Collins & Collins, P.C.
Albuquerque Attorneys

Both the New Mexico family law statutes and the relevant case law impose a duty on all parents to provide financial support for their children. This issue most commonly arises when parents divorce or separate and one parent must pay the other monthly child support.

However, the issue can come up in other situations as well. For instance, child support often arises in the guardianship setting. Parents may be and often are required to pay a third party guardian or custodian child support if that person is caring for their child. This will most commonly arise in a situation when someone is appointed as a guardian for a child pursuant to the Kinship Guardianship statute. It can also arise when party other than a biological parent is granted custody by the state after the Department of Children Youth and Families determines that the parents are unable or unwilling to care for their child.

The monthly child support amount is calculated according to the New Mexico Child Support Guidelines. That support continues until the child is 18, until they are 19 if they are still in high school or until the child becomes emancipated by some other means, i.e. by getting married or joining the military. It is a simple mathematical calculation based purely on the income of the parties, health and dental premiums and child care. On some occasions, other factors may be considered.

Because child support is required by law and it is a fairly straightforward calculation,it is rare that a parent will get off the hook for child support. One exception was recently set forth by the New Mexico courts providing that parents no longer have to pay child support for a child who becomes emancipated before they turn 18, by either marriage, military service or by court order pursuant to the Emancipation of Minors Act.

Though child support is a simple mathematical computation, the calculation of support is often fraught with contention. After all, the end result is entirely dependent upon the numbers going into the equation. These numbers, such as the parties income, are often hotly contested and it generally advisable to have the assistance of an experienced child support attorney if determining the proper figures to plug into the formula.

Collins & Collins, P.C.
Albuquerque Attorneys

Many New Mexico families have daily ties to more than just the parents and children. Grandparents, aunts, uncles and cousins may be an integral part of a family structure and they can provide everything from simple babysitting to emotional and financial support.

Therefore, when parents divorce or become engaged in a child custody dispute, it can affect more than just the parents and their children and may extend to the relationships of between the children and the extended family.

As a result of these close ties, an extended family member may feel that they have a right to be involved in child custody decisions. They may even feel that they should have significant input into how the children are reared. However, the law grants few rights to extended family. This includes the grandparents.

The law in New Mexico only grants absolute custody and time-sharing rights to parents. On rare occasions, grandparents may have the right to petition the court for visitation. Though not child custody per se, in cases where the child has lived with an extended family member for at least ninety days, the extended family member may be allowed to seek guardianship over the child. In those cases where the Children Youth and Families Department becomes involved in child custody, they may allow an extended family member to act as a guardian.

However, these situations are the exception, not the rule, Any extended family member concerned about a child who is involved in a custody dispute should consult a New Mexico family law attorney in order to determine whether they have any rights to custody.

Even if the law does not provide a direct avenue for custody, the parties may be able to negotiate an agreement for visitation that can protect the extended family member's relationship with the child and an experienced family law attorney can help to facilitate such an agreement.

Collins & Collins, P.C.
Albuquerque Attorneys

Upon appointment, a guardian is charged with the same duties, power and rights in respect to the incapacitated person that a parent would have with a minor child. Differences include the fact that a guardian is not required to provide financially for the protected person, nor is a guardian held liable to third parties for acts committed by the protected person, unless the guardian was careless or negligent in some way.

The guardian is required to file an acceptance of appointment with the court and provide the court with letters of guardianship that will be witnessed by the judge. The guardian then sends these letters to those who require notice of the guardianship appointment, including doctors, dentists, and other care providers.

The guardian must also file an initial report along with an inventory of the protected person's assets with the court within 90 days of appointment. This report outlines the protected person's current living arrangements, their healthcare providers, their personal, educational and occupational activities, and provides opportunity to list concerns, unmet needs, as well as other information that will keep the court informed of the protected person's status.

Additionally, the guardian must file a yearly report with the court within 30 days of the anniversary date of the appointment. If this report is not filed in a timely manner, the guardian could be charged $5.00 each day that the report is late. An extension could be requested and granted, but the requirement will not be waived under any circumstances.

This annual report is similar to the initial report in format. It insures that adult in need of protection is, in fact, being protected and that any changes in the level of incapacitation are addressed. It could be that the adult has an increase in ability that was not present before the appointment of guardianship. If full guardianship is in place, the court may move to limit the appointment based on new information. Otherwise, the guardianship will continue as mandated in the original court order.

The intent of the New Mexico laws surrounding guardianship is to encourage as much independence and self-sufficiency of the protected person as possible. Whenever feasible, input from the protected person should be sought in order to make decisions that remain in their best interest. Guardianship is not to be used to exert undue influence or reap financial benefit.

Some of the responsibilities of a guardian may include insuring that the protected person has adequate housing, clothing and food. Other responsibilities may include making health-care decisions, as well as providing educational, recreational and occupational activities. The guardian may be required to provide for personal care, such as bathing, dressing or giving medications, depending on the person's level of incapacitation. The guardian does not have to provide the care themselves, but they do need to insure that the care is provided if needed.

At any time, the protected adult or other person interested in the welfare of the protected adult has the right to petition the court for a change in guardianship and even termination of a guardianship appointment. The protected person has the right to have their concerns both heard and addressed. Ultimately, the court has the final decision in changing or terminating a guardianship appointment, and they rely on the same processes used in the initial petition for guardianship.

Collins & Collins, P.C.
Albuquerque Attorneys

The process of adult guardianship begins when a parent or other caregiver petitions the court in the county where the adult in need of protection resides. Typically, this petition is drawn up with the guidance and counsel of an attorney, and may include a brief history, as well as the nature of the incapacity and current concerns. The petitioner has the burden of proof in setting forth the reasons why the adult requires a guardian.

Once the petition is filed with the district court, notice is required to be given to the alleged incapacitated person, as well as certain family members or others as outlined by law. A hearing will be scheduled, at which both the alleged incapacitated person and the petitioner must attend.

In order for the court to make a guardianship determination, they must have access to data that supports the need. The court receives this information through three independent sources: a guardian ad litem, a court visitor and a qualified health care professional.

The court will appoint a guardian ad litem; an attorney who represents the alleged incapacitated adult. This attorney interviews the alleged incapacitated adult, as well as the petitioner and possibly others involved in the adult's life. They also review any reports generated by others, and present the alleged incapacitated adult's position at the hearing. They may be required to provide the court with a written report of their recommendations, but if allowed, can submit their findings verbally.

A court visitor will also be appointed by the court, who is typically a social worker or other qualified person. They visit the current home, interview both the alleged incapacitated adult and petitioner, and evaluate the adult's daily needs, as well as their capabilities. They will then submit their findings and recommendations to the court in a written report. The court visitor may or may not be required to appear at the hearing.

The court also requires a report from a qualified health care professional. This is usually a report written by a doctor or other health care practitioner who has treated the alleged incapacitated person and can make a recommendation of whether or not this person needs a guardian.

After all three individuals have compiled their data and submitted it to the court, the judge assigned will review the information. Then a hearing will be held in front of the judge in a closed court proceeding. This means that no one other than those designated by law will be allowed in the hearing room without express permission by the judge.

During the hearing, the alleged incapacitated person will be represented by the guardian ad litem, and the petitioner will be represented by an attorney of their choice or will represent themselves. Each party will be given opportunity to present their positions and the judge will make the final determination of guardianship. The judge will then sign an order prepared by the petitioner or petitioner's attorney if guardianship is granted, or will outline limitations to guardianship that will be drawn up after the hearing.

Collins & Collins, P.C.
Albuquerque Attorneys

Parents of children with specific developmental disabilities, including Downs Syndrome, Cerebral Palsy and Autism Spectrum Disorder face many challenges when raising their children to adulthood. Unfortunately, these challenges do not disappear once the child turns eighteen, which is the age New Mexico recognizes persons as adults with decision-making ability. Questions surrounding medical care and physical needs often cannot be properly addressed or resolved by an adult with a developmental disability.

Appointment as an adult guardian can be an option for parents and caregivers who will continue assisting these adults with decision making and care. Guardianship is obtained through the court to protect and promote the well being of an adult who is in need of such protection. A guardian will typically make decisions concerning where the protected adult will live, what kind of medical care they will need, and what kind of therapy or job training might enhance their situation.

Adult guardianship has serious implications and should only be undertaken as a last resort, because the adult in need of protection will be deemed incapacitated if guardianship is granted. In addition, the appointment of a guardian removes significant rights from an individual. Even so, the protected adult still retains their legal, civil and basic human rights, including the right to; receive personal mail, vote, practice religion of choice, marriage, manage personal spending of allowance, representation by an attorney, create a will or trust, and petition the court to reassign or end guardianship.

However, even these rights can be limited if the protected person does not have the mental capacity to understand or perform them. They also have the right to live free from abuse, exploitation and neglect in any form. These of course may not be forfeited under any circumstances.

In New Mexico, the adult guardianship process provides legal safeguards to those who are alleged to be incapacitated persons; consequently, guardianship will not be granted without significant supporting data. In deciding an adult guardianship case, the courts follow the guiding principle of "least restrictive alternative". This means that alternatives to guardianship should be explored, and guardianship should only be sought as a last remaining option. Ultimately, New Mexico statutes require that guardianship encourage as much independence of the protected adult as possible.

After completing the guardianship process as outlined by statute, the court will decide if the alleged incapacitated person requires guardianship. If not, the petitioner's request for guardianship will be denied and the proceedings will be dismissed. If it is discovered that the protected person can perform some decision making and care for themselves, the court may limit the guardianship, designating these limitations within the order of appointment. If the protected person is found to be in need of full guardianship, the petitioner will be given final authority to act for the protected person.

Collins & Collins, P.C.
Albuquerque Attorneys

Sadly, there are often times when neither of a child's parents is able to care for the child. In such cases, a third-party, who may or may not be a family member, may petition the Court for child custody of the Child. In New Mexico, there are five different ways in which a third-party child custody may be awarded.

The first three ways by which a third-party may gain child custody over a child are pretty straightforward. First, the court may grant child custody to a third-party as part of a divorce proceeding if the court determines that neither parent is capable of caring for the child and the third-party properly intervenes in that divorce proceeding. Second, under the probate code, the court may grant custody to a third-party when the child's parent or guardian dies. Third, the court may grant custody to a third-party as the result of finding of abuse and neglect by the child's parents or current guardian. Abuse and neglect proceedings are generally initiated by the Department of Children Youth and Families, but they can be initiated by the third-party seeking custody.

Fourth, the third-party seeking custody can file a petition under the Kinship Guardianship Act, which typically applies when a child has lived with the third-party for more than ninety (90) days prior to the filing of a petition. However, custody can also be granted under the Kinship Guardianship Act even if the child hasn't lived with the third-party for ninety (90) days, if the child's parents are unwilling or unable to care for the child and there are extraordinary circumstances. In fact, a third-party can be granted custody of a child is when extraordinary circumstances exist, even without a Kinship Guardianship petition, and there is no other remedy available under the law, which is the fifth way for a third-party to obtain custody.

In all of the situations referenced above, the court will only grant custody to a third-party if that custody award is in the child's best interest. The person seeking custody will often have the burden of proving to the court that they are the best person to care for a child, which can be a very complicated process. Thus, it is very important for a person seeking custody to consult an attorney before undertaking such an action.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

In the recent case of Vescio v. Wolf, the New Mexico Court of Appeals discussed the issue of third-party child custody, which refers to a situation in which a person other than a child's mother or father seeks custody of that child. In Vescio, a child's aunt filed a petition for custody and timesharing against the child's mother and grandmother, who had been appointed the kinship guardian of the child (the child's father was not involved with the child's life or this case).

The aunt initially based her petition on alleged abuse of the child by the mother and grandmother, however, the New Mexico Children Youth and Families Department (CYFD) found the allegations of abuse to be unsubstantiated. The district court dismissed the aunt's petition because she lacked standing to seek custody under the regular child custody statutes.

In the Vescio opinion, the Court of Appeals listed five primary situations in which a third-party may be awarded child custody in New Mexico: 1) when extraordinary circumstances exist and there is no other adequate remedy available; 2) during an action for dissolution of marriage; 3) when a parent or guardian for the child dies, the court can award custody to a third-party under the Probate Code; 4) when there has been a finding of abuse and neglect by CYFD; and 5) when a third-party files a petition for custody under the Kinship Guardianship Act.

The Court of Appeals upheld the dismissal of the aunt's petition because it did not properly fall within any of the situations listed above. However, the Court ruled that the aunt would have standing to file a motion to revoke the grandmother's guardianship under the Kinship Guardianship Act.

If you are a third-party thinking about seeking custody of a child, this case illustrates that importance of consulting with an attorney in order to ensure that you use the proper body of law as a basis for your claim.

www.CollinsAttorneys.com

Unfortunately, there comes a time in the lives of many adults when they are impaired to the point where they can no longer make decisions for themselves. This impairment can be the result of mental illness, physical disability or drug and alcohol abuse. In such situations, the New Mexico Probate Code Adult Guardianship provisions allows for the appointment of a guardian and/or a conservator to make important decisions for the impaired person. A guardian makes personal and health care decisions for the impaired person, which a conservator makes decisions related to the financial affairs and property of the impaired person.

Any person over the age of eighteen, or properly registered corporation, may serve as a guardian or conservator and the same person or entity does not have to serve as both guardian and conservator. For instance, often the spouse of an incapacitated person will be appointed as their guardian, but a bank will be appointed as conservator. Every guardian and conservator must be appointed to serve by the District Court.

While any party interested in the estate, affairs or welfare of an incapacitated person may file a petition to be appointed as guardian or conservator, the process is very complicated. The courts take these appointments very seriously because by appointing a guardian or conservator, the court is essentially taking away the fundamental right of the impaired person to make decisions for themselves. The incapacitated person and certain family members must be given notice of the appointment proceeding and the court will appoint a guardian ad litem to represent and protect he incapacitated person.

The court will also appoint a court visitor, which is usually a health care professional or social worker, and a qualified health care professional to evaluate whether or not the person is actually incapacitated to the extent that a guardian or conservator is necessary.

To further complicate things, a guardian or conservator can also be given limited guardianship authority, if the court believes that the person is only partially incapacitated and is still capable of making some decisions for his or herself. Given the wide variety of issues involved in the appointment of a guardian or conservator, it is a good idea to consult an attorney about the process if you believe that family member or loved one is in need of such supervision.

www.CollinsAttorneys.com

What should you do if a family member or friend has left their child with you for an extended period of time? In New Mexico, if a child has resided with you for an extended period of time and you want to continue to care for the child, you may be able acquire guardianship over the child through New Mexico's Kinship Guardianship Act.

Though there are numerous requirements under the Act, you do not have to be a blood relative in order to file a Kinship Guardianship petition. However, if you are not a relative, or a member of the child's tribe, you will have to demonstrate that you have a significant bond with the child. The grounds for guardianship, the bonds with the child, the bests interests of the child and other considerations must be set forth clearly in the Petition for Guardianship.

The Kinship Guardianship Act is meant to address situations in which a parent has left a child with another person for more than ninety (90) days without "appropriate care, guidance or supervision." If you are appointed the legal guardian of a child, the parent's rights are temporarily suspended and transferred to you. This also means that you are responsible for caring for the child as if he or she were your own, which not only means feeding and clothing the child, but making decisions about things like medical care and education for the child too.

The New Mexico Courts will only appoint a Kinship Guardian if that appointment is in the best interest of the child. If both of the child's parents agree to appointment of a legal guardian, then they can sign a Consent of Appointment of Guardian and they can also waive the requirement that a child live with you for at least ninety days before you can file a petition for kinship guardianship. However, if one or both of the child's parents dispute the guardianship, the Court must appoint a Guardian Ad Litem to represent the child's interest.

Once guardianship has been appointed, the legal guardian has full physical custody and financial responsibility for the care of the child. The financial burdens associated with custody of a child can be significant for a guardian. As such, the guardian can petition and the court will generally award child support from one or both parents for the care of their children while the guardianship is in effect.

www.CollinsAttorneys.com