Child Welfare Handbook
22.1.1 EFFECT OF PARENTAL RIGHTS TERMINATION
Civil abuse and neglect proceedings may result in the profound consequence of termination of parental rights. The legal effects of termination are substantial. After termination, a natural parent’s custodial rights are completely abolished. The order of the court terminating parental rights divests the natural parent of all legal rights and privileges with respect to the child and dispenses with the necessity for consent to or notice of adoptive proceedings concerning the child. §32A-4-29(L).
Termination of parental rights is a necessary prelude to adoption. Adoption is the legal process by which a child acquires parents other than the natural parents and parents acquire a child other than their natural child. The resulting legal relationship is identical to that of a natural parent and child. Termination of parental rights severs the child’s legal tie to his or her natural parents so that adoption can occur. Thus, termination of parental rights is a critical tool to achieve permanency for children in the foster care system who cannot return home.
In most ordinary adoption cases not involving abuse or neglect proceedings, the natural parents agree to give up their parental rights and consent to adoption. In cases where a child is under the jurisdiction of the children’s court based on alleged parental abuse or neglect, termination of parental rights also can be voluntary. Voluntary terminations of parental rights are called “relinquishments.” However, in the child protection context, terminations of parental rights are likely to be contested. An involuntary termination is called a “termination of parental rights” and may involve a contested judicial proceeding if the parents remain involved in the case.
22.1.2 DUE PROCESS CONCERNS
Because termination of parental rights proceedings affect the fundamental liberty interest of natural parents in the care, custody and management of their children, they raise both procedural and substantive due process concerns. The U.S. Supreme Court has identified a fundamental privacy interest in raising one’s children. The Court called the right to conceive and raise one’s children “essential” in Meyer v. Nebraska, 262 U.S. 390, 399 (1923). In Prince v. Massachusetts, 321 U.S. 158, 166 (1944), the Court stated that “it is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”
In Stanley v. Illinois, 405 U.S. 645 (1972), the Supreme Court invalidated, on both due process and equal protection grounds, an Illinois law under which children of unwed fathers became state wards upon the death of the mother. The Stanley Court declared that all parents were constitutionally entitled to a hearing on their fitness before their children were removed from their custody. In Santosky v. Kramer, 455 U.S. 745 (1982), the Court held that before a state may sever the rights of parents regarding their natural child, due process requires the state to prove its allegations by at least clear and convincing evidence.
New Mexico case law in the area of termination of parental rights traditionally focused on the grounds for involuntary termination and the sufficiency of the evidence for termination in particular cases. In recent cases, the state Supreme Court has underscored the importance of procedural due process guarantees. Due process of law requires that termination proceedings be conducted with "scrupulous fairness" to the parent. Ruth Anne E., 1999-NMCA-035, ¶19, 126 N.M. 670 (quoted authority and quotation marks omitted). "Procedural due process mandates that a person be accorded an opportunity to be heard at a meaningful time and in a meaningful manner." Id. at ¶17 (quoted authorities and quotation marks omitted). State ex rel. CYFD v. Mafin M., 2003-NMSC-015, ¶18,133 N.M. 827.
In State ex rel. CYFD v. Erika M., the Court of Appeals emphasized that termination of parental rights “implicates a significant deprivation of a liberty protected by due process” and that procedural due process “guarantees a parent a fair opportunity to be heard and present a defense.” 1999-NMCA-036, ¶26, 126 N.M. 760. In State ex rel. CYFD in the Matter of Ruth Anne E., the court held that an incarcerated father has the right to meaningful participation in the hearing, including the right to review the evidence presented against him, present evidence on his behalf, and the opportunity to challenge the evidence presented. 1999-NMCA-035, ¶25, 126 N.M. 670. See also State ex rel. CYFD v. Brandy S., 2007-NMCA-135, 168 P.3d 1129.
22.1.3 CONSTRAINTS UNDER THE CHILDREN'S CODE AND ASFA
In order to comply with its state plan requirements under the Adoption and Safe Families Act, the state must file or join in a petition to terminate parental rights if the child has been in foster care for 15 of the most recent 22 months. This is now reflected in the Children’s Code, at §32A-4-29(G). There are certainly exceptions to this rule under ASFA, including an exception for situations where the state has compelling reasons for deciding that filing a petition would not be in the best interests of the child in question. See Handbook §38.4. The Children’s Code contains a similar provision but it lists specific reasons that may be compelling, rather than require compelling reasons generally. See §32A-4-29(G). Both the Children’s Code and ASFA also consider the date the child entered foster care to be either the date of the first judicial finding that the child has been abused or neglected or 60 days after the child was removed from the home, whichever occurred first. §32A-4-29(H). See Handbook §22.5.2
22.2 VOLUNTARY TERMINATION OF PARENTAL RIGHTS (RELINQUISHMENT): PROCEDURE
Occasionally, parents who are parties to an abuse and neglect action decide to voluntarily relinquish their parental rights. Relinquishment can be a positive gesture that allows a parent a greater sense of dignity and control than a full-blown contested termination of parental rights trial.
A relinquishment to CYFD is heard in the context of the existing abuse and neglect proceeding, if a proceeding is pending, and is not a separate judicial proceeding. §32A-5-24(A). A parent may relinquish parental rights to CYFD only with CYFD’s consent. §32A-5-23(B).
Relinquishment usually occurs as adoption plans are being made. However, relinquishment is sometimes sought where the likelihood of adoption is remote, as where the other parent does not want to relinquish his or her parental rights. If a proposed relinquishment of parental rights is not in contemplation of adoption, under §32A-5-24(C) the court may not allow the relinquishment unless it finds that:
Good cause exists;
CYFD has made reasonable efforts to preserve the family; and
Relinquishment is in the child’s best interest.
A parent who relinquishes under this subsection remains financially responsible for the child and the court may order the parent to pay the reasonable costs of the child’s support and may use the child support guidelines. §32A-5-24(C).
22.2.2 COUNSELING REQUIRED
Parent respondents in a civil abuse and neglect action must receive counseling before signing a relinquishment of parental rights, although counseling can be waived by the court for good cause. §32A-5-22(A). The counseling must meet the following specific requirements:
Counseling may be provided by a trained counselor, CYFD or an agency, although generally it is provided by CYFD. §32A-5-22(G) and (H). CYFD has identified employees who are qualified to do the counseling.
Counseling should be private for a minimum of one session for adult parents. §32A-5-22(D)(1). Parents who are minors must have counseling for a minimum of two sessions, one of which must be conducted without the minor parent’s parent or guardian. §32A-5-22(D)(2).
Counseling must be conducted in the primary language of the person receiving the counseling. §32A-5-22(E).
Counseling must cover the alternatives to and the consequences of relinquishment and adoption. §32A-5-22(C)(2).
After counseling is completed, a counseling narrative must be prepared pursuant to CYFD regulations to accompany the relinquishment form to be filed with the court.
22.2.3 RELINQUISHMENT FORM
There are also specific requirements for the form of the relinquishment. §32A-5-21. The relinquishment must be in writing and must state all of the following under §32A-5-21(A):
Date, place and time of execution.
Date and place of birth of the prospective adoptee and any names by which the prospective adoptee has been known.
Name and address of the agency or CYFD.
That the person executing the relinquishment has been counseled as provided in §32-5-22 by a certified counselor of the person’s choice and that with this knowledge the person is “voluntarily and unequivocally” consenting to the adoption of the named prospective adoptee.
That the consenting party has been advised of the legal consequences of the relinquishment by independent legal counsel or a judge.
That the relinquishment cannot be withdrawn.
That the person executing the relinquishment has received or been offered a copy of the relinquishment.
That a counseling narrative has been prepared pursuant to CYFD regulations and is attached to the relinquishment form.
That the person who performed the counseling meets the requirements of §32A-5-22 (G) and (H).
That the person executing the relinquishment waives further notice of the adoption proceedings.
That all parties in a closed adoption understand that the court will not enforce any contact, regardless of any informal agreements that have been made between the parties. (This requirement was added in 2005.)
If English is not the first language of the relinquishing parent and the relinquishment is in English, the person taking the relinquishment must certify in writing under §32A-5-21(C):
That the relinquishment document was read and explained in the person’s first language;
That the meaning and implications of the document were fully understood by the person; and
The name of the individual who read and explained the document.
22.2.4 EXECUTION OF THE RELINQUISHMENT
Under the 2005 amendments to the Children’s Code, a relinquishment of parental rights must be signed before and approved on the record by a judge. The judge may be within or outside of the state but must be a judge who has jurisdiction over adoption proceedings and is within the jurisdiction in which the child is present or the parent resides at the time the relinquishment is signed. §32A-5-23(A).
Relinquishments in a pending abuse and neglect proceeding are heard within the context of that proceeding. §32A-5-24(A). A court hearing for the purpose of taking a relinquishment must take place within seven days of the request for a setting. §32A-5-21(F). In all hearings concerning relinquishment of parental rights to CYFD, the child must be represented by a guardian ad litem. §32A-5-24(B).
The relinquishment hearing enables the judge to review the relinquishment form with the relinquishing parent and that parent’s counsel and to ascertain that the parent understands the legal consequences of relinquishment. If the parent’s first language is not English, an interpreter might be present in court to confirm that the relinquishing parent does indeed understand the form and the consequences of the relinquishment. In any case, the judge can use the opportunity to confirm that counseling was received as required by law and to ascertain whether CYFD and the guardian ad litem consent to the relinquishOnce the relinquishment is signed, it should be filed with the court. If an adoption petition is being heard outside the abuse or neglect proceedingment.
Once the relinquishment is signed, it should be filed with the court. If an adoption petition is being heard outside the abuse or neglect proceeding (see Handbook §30.3), the relinquishment must also be filed with the court in which the adoption petition is filed, before adjudication of the petition. §32A-5-23(C).
Practice Note. Several entities either want or require originally signed relinquishment documents. These include the court approving the relinquishment, the adoption social worker, the adoption attorney, and the adoption court. Hence, it is recommended that multiple originals be signed at the time of relinquishment, although certified copies should be an acceptable alternative for all or most purposes.
Whether a relinquishment can be withdrawn depends on the governing law. Under the Indian Child Welfare Act, parents of an Indian child who are relinquishing may withdraw their consent “for any reason at any time prior to the entry of a final decree of termination or adoption…and the child shall be returned to the parent.” 25 U.S.C. §1913(c). Because of ICWA, which imposes stringent requirements on relinquishments of Indian children (see Chapter 39), parents of Indian children have a greater ability to withdraw their consent to relinquishments than do other parents.
In cases in which ICWA does not apply, a relinquishment may be withdrawn only prior to the entry of a decree of adoption and only on the basis of fraud. §32A-5-21(I). The New Mexico Supreme Court has stressed that fraud is the only ground upon which a person can withdraw a relinquishment and consent to adoption. State ex rel. HSD in the Matter of Kira M., 118 N.M. 563, 570 (1994). In Kira M., the court affirmed denial by the children’s court of a biological mother’s motion to withdraw consent, which did not allege that consent was given due to fraud. The court observed, though, that the children’s court has “the ability under its reservoir of equitable power to protect the natural parents in exceptional circumstances.” 118 N.M. at 570.
22.3 VOLUNTARY TERMINATION OF PARENTAL RIGHTS (RELINQUISHMENT): SPECIAL CIRCUMSTANCES
22.3.1 MINOR PARENTS
A relinquishment executed by a minor parent cannot be revoked simply because of the parent’s minority. §32A-5-17(C). New Mexico requires minor parents seeking to relinquish to undergo a minimum of two separate counseling sessions prior to relinquishment, one of which must be without the presence of the minor parent’s parent or guardian. §32A-5-22(D)(2).
Very occasionally, a minor may be both the subject of an abuse and neglect case and a respondent in the same case. This situation means that a child might have both a guardian ad litem or youth attorney and respondent’s counsel.
22.3.2 PARENTS OF INDIAN CHILDREN
The Indian Child Welfare Act imposes specific requirements on a parent of an Indian child who voluntarily consents to termination of parental rights. 25 U.S.C. §1913(a). The consent must be in writing and recorded before a judge of a court of competent jurisdiction. The presiding judge must certify in writing that the consent’s terms and consequences were fully explained in detail and fully understood by the parent. The judge also must certify either that the parent fully understood the explanation in English or that it was translated into a language that the parent understood. ICWA declares invalid any consent given prior to or within ten days after birth of the Indian child. See Handbook §39.2.10.
22.3.3 CONDITIONS ON RELINQUISHMENT
New Mexico law discourages conditional relinquishments and states that “[u]nconditional consents or relinquishments are preferred.” Conditional relinquishments must be for good cause and must be approved by the court. If the desired condition is for specific adoptive parents or requires the other parent to consent before the adoption decree is entered, the condition is considered for good cause. §32A-5-21(D).
Practice Note. Where relinquishment is being made to CYFD and the condition being requested is for specific adoptive parents, CYFD requires that an adoptive home study be approved and a placement agreement signed with the designated adoptive parents before it agrees to the conditional relinquishment.
There are specific time frames for conditions. All conditions must be met within 180 days of the conditional consent or relinquishment or the conclusion of any litigation concerning the petition for adoption. The court may extend the 180 day time frame for good cause. §32A-5-21(D). If the condition is not met within the required time period, the relinquishment is not effective. Conditions, while they may seem like a good idea at the time, can also result in permanency being delayed.
If the condition desired is one of continued contact, the only way to have continued contact between the biological family and the child is through an open adoption. Under CYFD policy, the condition itself is acceptable only until the adoption is finalized. The relinquishment to CYFD may not have as a condition that there be an open adoption. Any agreement as to continued contact after the adoption is finalized must to done in the context of an open adoption and must be an agreement between the adoptive parents and the biological parents.
22.4 INVOLUNTARY TERMINATION OF PARENTAL RIGHTS: GROUNDS
The court is required under the termination of parental rights, or TPR, statute to give “primary consideration to the physical, mental and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated.” §32A-4-28(A). The court should consider, for example, whether the child, if aged 14 or over, will consent to an adoption. If the child will not agree, an adoption is not likely. §32A-5-17 (amended in 2005 to change the age of consent from 10 to 14).
There are three specific grounds for termination of parental rights in New Mexico:
Failure to ameliorate the causes and conditions of the abuse and neglect, despite reasonable efforts by CYFD.
Disintegration of the parent-child relationship accompanied by a psychological parent-child relationship between the child and his caretaker.
At least one of the grounds must be pled and proven with some specificity for TPR to occur. In the Matter of the Termination of Parental Rights with respect to R.W., 108 N.M. 332, 335-336 (Ct. App. 1989).
The TPR statute, §32A-4-28, does not define abandonment but the term is defined elsewhere in the Abuse and Neglect Act. As defined in § 32A-4-2(A), abandonment includes instances where the parent, without justifiable cause:
Left the child without provision for the child’s identification for a period of 14 days; or
Left the child with others, including the other parent or an agency, without provision for support and without communication for a period of:
three months if the child was under six years of age at the commencement of the three-month period; or
six months if the child was over six years of age at the commencement of the six-month period.
The Safe Haven for Infants Act no longer contains the provision that there is no presumption of abuse or neglect against a parent who seeks reunification with an infant left at a hospital in accordance with the Act within 30 days from the date the infant was left. §24-22-7, amended in 2005 to delete the provision. The Children’s Code definition of abandonment could apply to such a situation, depending on the facts of the case.
Abandonment is also defined in case law. Abandonment is “conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship.(citation omitted)” In Re Adoption of Doe, 89 N.M. 609, 618 (1976). The definition focuses on parental conduct and views the parent’s intent from an objective, not subjective, perspective. The conduct of the parent and its impact on the child are the determining factors. Id. at 619.
Appellate courts have found abandonment in a variety of circumstances, including:
Parental neglect, lack of affection shown toward the child, failure to contact the child, failure to support the child if able to do so and disregard for the child’s welfare. In the Matter of the Termination of Parental Rights with respect to C.P., 103 N.M. 617, 621 (Ct. App. 1985).
Selling a child. Barwin v. Reidy, 62 N.M. 183, 196 (1957).
Murder of the child's other parent in the presence of the child. In the Matter of the Adoption of Doe, 99 N.M. 278, 281 (Ct. App. 1982).
Practice Note. Section 32A-4-28(D), added in 2001, provides that the CYFD may not petition, nor join in another party’s petition, to terminate parental rights when the sole factual basis for the motion is that the child’s parent is incarcerated. This reflects prior case law. In re C.P., 103 N.M. at 621; Adoption of Doe, 99 N.M. at 282.
While incarceration alone does not constitute abandonment, the court may, for example, look to whether the crime committed relates to the parent’s ability to care for the child or consider the arrangements the parent made to carry out his or her parental responsibility, the extent of age appropriate contact between parent and child, or whether the parent took advantage of any treatment available in the correctional system. See, e.g. State ex rel. CYFD v. Christopher L., 2003-NMCA-068, 133 N.M. 653. See also State ex rel. CYFD v. Joe R., 1997-NMSC-038, 123 N.M. 711.
22.4.3 FAILURE TO AMELIORATE THE CAUSES OR CONDITIONS OF THE ABUSE OR NEGLECT
The second and, in the context of abuse and neglect cases, most common type of TPR focuses on the likelihood that the causes and conditions that lead to the abuse or neglect will not change. In this type of TPR, the movant must show under §32A-4-28(B)(2) that:
The child was abused or neglected; and
The conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future:
despite reasonable efforts by CYFD
to assist the parent in adjusting the conditions that render the parent unable to properly care for the child.
In this sort of TPR motion, CYFD must offer evidence about the neglect or abuse of the child, attempts it made to ameliorate the conditions leading to the abuse and neglect and that, despite these efforts, the parents failed to make changes. In the Matter of the Termination of Parental Rights of Reuben and Elizabeth O., 104 N.M. 644, 648 (Ct. App. 1986). In some of these cases, the parent simply fails to follow the treatment plan and does not make sufficient changes. In others, the parent has complied with the treatment plan, and even made some progress, but is still unable to change the conditions that caused the abuse or neglect. This was the case in Athena H., where the mother’s mental illness, coupled with “the severe psychological trauma and emotional damage the children suffered while in the mother’s care,” made it impossible for her “to safely parent her children and meet their psychological and emotional needs in the foreseeable future.” State ex rel. CYFD v. Athena H., 2006-NMCA-113, ¶9, 140 N.M. 390. Under these circumstances, the court found that CYFD’s efforts were reasonable and upheld the termination of parental rights, explaining that “compliance with the terms of a treatment plan is not dispositive of the issue of parental termination.” Id.
Practice Note. The emphasis of the statute is on the need for a change in the conditions that rendered the parent unable to properly care for the child, not on compliance with the treatment plan unrelated to the change needed. The court and the parties should be careful not to focus so much on the treatment plan that they lose sight of the statutory concern: Have the causes and conditions of the abuse or neglect been ameliorated to allow the child to return home?
Assessing whether the conditions and causes of the abuse and neglect are unlikely to change in the foreseeable future does not require the children’s court to wait in cases of minimal parental improvement. The Court of Appeals has recognized that avoiding TPR in cases where there has been minimal parental improvement may be detrimental to a child. State ex rel. HSD in the Matter of Dennis S., 108 N.M. 486, 488 (Ct. App. 1989). The children’s court “is not required to place the children indefinitely in a legal holding pattern. To do so would force the children to wait for the uncertain possibility that the natural parents, despite their persistent and long-standing disregard of the children’s interest, may remedy past faults which have rendered the children neglected.” Reuben and Elizabeth O., 104 N.M at 650-651. Thus, the statute’s reference to “foreseeable future” means “within a reasonably definite time or within the near future.” Id. at 650.
The “reasonable efforts” required of CYFD do not demand a Herculean effort by it to assist the parents in adjusting the conditions that render the parent unable to care properly for the child. As the court opined in one case, “the reasonable efforts requirement does not …compel unreasonable efforts.” In the Matter of the Termination of Parental Rights with respect to Kenny F., 109 N.M. 472, 476 (Ct. App. 1990). When it becomes clear that preserving the family is not compatible with protecting the child, further efforts at preservation are not required. Id. The Court of Appeals has stated that CYFD is not required to return the child home and wait for negative consequences to occur to demonstrate that there would be negative consequences. In the Matter of the Termination of Parental Rights with respect to R.W., 108 N.M. 332, 338 (Ct. App. 1989). Also, when more than one child is involved, “the court should not be forced to refrain from taking action until each child suffers an injury.” In the Matter of the Termination of Parental Rights with Respect to I.N.M., 105 N.M. 664, 669 (Ct. App. 1987). In I.N.M., the court upheld the TPR for a child who had been somewhat neglected but whose sibling had been severely abused. Efforts can also be reasonable despite language barriers, if there was a sufficient attempt to communicate with the parent about all aspects of the case. State ex rel. CYFD v. William M., 2007-NMCA-055, ¶¶50-51, 161 P.3d 262.
On the other hand, CYFD’s efforts will not be considered reasonable if it does not adequately inform a parent of the specific conditions that must change in order to avoid termination. In State ex rel. CYFD v. Joseph M., 2006-NMCA-029, 139 N.M. 137, CYFD implemented a treatment plan addressing substance abuse, anger management, domestic violence, counseling, and parenting classes, but never “specifically and pointedly told [Father] that a failure to separate from Mother could constitute a basis for terminating his rights as a parent because that relationship rendered him unable to properly care for his children.” Id. ¶20. According to the court, it was “incumbent on the Department to have a specific treatment plan or specifically alert Father to the consequences of his staying with Mother.” Id. ¶23. CYFD’s failure to do so led the court to conclude that CYFD did not make reasonable efforts in this case, despite an otherwise extensive treatment plan.
Also, the evidence to establish abuse or neglect need not be from a prior adjudication of abuse or neglect. State ex rel. HSD, Soc. Serv. Div. v. Ousley, 102 N.M. 656 (Ct. App. 1985). However, the evidence of abuse or neglect, and of reasonable efforts, must be based on current evidence. State ex rel. CYFD v. Benjamin O., 2007-NMCA-070, 141 N.M. 692; State ex rel. HSD v. Natural Mother, 96 N.M. 677 (Ct. App. 1981).
In some instances, CYFD might not need to make any efforts to reunite the family. That is, in some cases, no efforts whatsoever may be reasonable. In the Kenny F. case, the Court of Appeals suggested that after a mother had lost parental rights to two of her four children further efforts to reunite her with another child would be “futile,” but the appellate court did not define futile. 109 N.M. at 476-477. New Mexico’s termination statute now empowers the children’s court to find that “efforts by the department or another agency are unnecessary” when:
There is a clear showing that the efforts would be futile; or
The parent has subjected the child to aggravated circumstances. §32A-4-28(B)(2).
Section 32A-4-2(C) defines “aggravated circumstances” as circumstances where the parent has done one of the following:
Attempted, conspired to cause or caused great bodily harm to the child or great bodily harm to the child’s sibling;
Attempted, conspired to cause or caused great bodily harm or death to another parent, guardian or custodian of the child;
Attempted, conspired to subject or subjected the child to torture, chronic abuse or sexual abuse; or
Had his or her parental rights over a sibling of the child terminated involuntarily.
In the Amy B. case, the Court of Appeals upheld the constitutionality of the aggravated circumstances provision as applied. The court, citing the legislative history of ASFA and cases from other states, concluded that the statute does not create a presumption of unfitness at the TPR trial but rather gives the trial court discretion not to require reunification efforts, if warranted by all the relevant facts. “[ASFA], in eliminating the requirements of reasonable efforts under certain circumstances, and in requiring the states to follow suit in order to be eligible for federal benefits, was responding to the perceived excesses in the application of the reasonable efforts requirement.” State ex rel. CYFD v. Amy B., 2003-NMCA-017, ¶7, 133 N.M. 136.
22.4.4 DISINTEGRATION OF THE PARENT-CHILD RELATIONSHIP AND DEVELOPMENT OF A NEW PSYCHOLOGICAL PARENT-CHILD RELATIONSHIP BETWEEN THE CHILD AND CARETAKER
The third ground for TPR in New Mexico is often called the “foster parent bonding” ground. It enables the children’s court to terminate parental rights when the child has been placed in the care of others, including relatives, either by court order or otherwise and when several conditions are present. §32A-4-28(B)(3). These conditions are:
The child has lived in the home of others for an extended period of time;
The parent-child relationship has disintegrated;
A psychological parent-child relationship has developed between the substitute family and the child;
The child no longer prefers to live with the natural parent if the court determines the child of sufficient capacity to express a preference; and
The substitute family desires to adopt the child.
A finding by the court that all of the above conditions exist creates a rebuttable presumption of abandonment. §32A-4-28(C). Thus, the “foster parent bonding” ground for TPR is a type of presumptive abandonment. While the focus can be upon the parental conduct, the manner in which these factors are weighed is impacted by the child’s perspective. In the Matter of Samantha D., 106 N.M. 184 (Ct. App. 1987).
In In the Matter of the Adoption of J.J.B., 119 N.M. 638 (1995), the Supreme Court held that proof of abandonment required a showing that parental conduct evidenced a conscious disregard of obligations owed to the child and that such conduct led to the disintegration of the parent-child relationship. The court emphasized that “evidence of the disintegration of the parent-child relationship is of no consequence if not caused by the parent’s conduct.” 119 N.M. at 648. In J.J.B., the court reversed a finding of abandonment.
The Court of Appeals has considered the “disintegration of the parent-child relationship” element in some depth. In State ex rel. CYFD in the Matter of John D., 1997-NMCA-019, 123 N.M. 114, the court focused on the parental conduct toward the child, noting that if the disintegration of the parent-child relationship was not caused by the parent’s conduct, the mother could rebut the presumption of abandonment. ¶7. The John D. court concluded that the parent’s physically violent conduct toward her child was “directly responsible” for the disintegration of the parent-child relationship and upheld the trial court’s termination finding. ¶9. In an earlier case, the Court of Appeals explained that the “requisite disregard may be inferred from purposeful parental conduct.” In the Matter of the Termination of Parental Rights with respect to C.P., 103 N.M. 617, 621 (Ct. App. 1985).
Generally, a TPR motion based on disintegration will involve psychological evidence that looks at the child’s bonding to his or her biological parents and to the potential adoptive parents. Evaluation of a child’s attachment to his or her caretaker should not involve comparisons of the biological home and the foster home, however. Case law emphasizes that it would be impermissible for the children’s court to engage in a comparison of “the relative merits of the environments provided by the foster parents and by the natural parents.” State ex rel. HSD v. Natural Mother, 96 N.M. 677, 679 (Ct. App. 1981). The fact that a child might be better off in a different environment does not constitute a basis for TPR. In the Matter of the Termination of Parental Rights with respect to R.W., 108 N.M. 332, 335 (Ct. App. 1989).
22.5 INVOLUNTARY TERMINATION OF PARENTAL RIGHTS: PROCEDURE
Terminations of parental rights that take place in civil abuse and neglect cases are often highly emotional in nature. The consequences of a termination are profound. Children stand to lose a relationship with a parent who may be loved even if he or she has been neglectful or abusive. Children also risk losing contact with siblings and with extended family members. Parents facing terminations are generally sad and angry at their predicaments or, by virtue of mental illness, substance abuse or developmental disabilities, may be confused about what is happening to them. In addition to the high stakes involved, there generally has been a lengthy history of failed efforts to reunite the family. Because of that history, there may be some built-up frustration on the part of the professionals working with the family, including the social worker, therapists, lawyers and the judge, at the parents’ inability to understand or to alter poor parenting or lifestyle choices that endanger their children. Following the appropriate procedures to comply with due process requirements becomes especially important.
ASFA Note. Compounding the emotional and procedural challenges inherent in the TPR proceeding are the deadlines confronting the state and parents under the Adoption and Safe Families Act. To meet ASFA requirements, the Legislature in 2001, 2003, and 2005 amended §32A-4-29 to require the filing of a petition for TPR by the end of the child’s 15th month in foster care, except in certain circumstances. §32A-4-29(G); see Handbook §22.1.3.
When a motion for TPR is filed, CYFD must perform concurrent planning. §32A-4-29(F) . However, the department is likely to have begun concurrent planning at an earlier stage. See Handbook §3.4.
22.5.2 INITIATION OF TPR
An involuntary TPR can be initiated by the filing of a motion for TPR in the abuse and neglect proceeding. §32A-4-29(A). Thus, a TPR does not require a separate judicial proceeding with separate pleadings and a separate cause number. The Children’s Code allows “any party” to file for TPR. §32A-4-29(A). If a party other than CYFD files a TPR motion concerning a child in state custody, CYFD either may litigate the motion filed by the other party or may move that the TPR motion be found premature and denied. §32A-4-29(E).
When a child has been in foster care for 15 of the previous 22 months, CYFD must file a motion to terminate unless:
a parent has made substantial progress toward eliminating the problem that caused the child’s placement in foster care; it is likely the child will be able to safely return home within three months; and the child’s return home will be in the child’s best interest;
the child has a close and positive relationship with a parent and a permanent plan that does not include TPR will provide the most secure and appropriate placement for the child;
the child is 14 or older, is firmly opposed to TPR, and is likely to disrupt an attempt to place him or her with an adoptive family;
a parent is terminally ill, but in remission, and does not want his or her parental rights terminated, provided that the parent has designated a guardian for the child;
the child is not capable of functioning if placed in a family setting, in which case the court must reevaluate the child’s status every 90 days (unless the court makes a final determination that the child cannot be placed in a family setting);
grounds do not exist for TPR;
the child is an unaccompanied, refugee minor and the situation regarding the child involves international legal issues or compelling foreign policy issues; or
adoption is not an appropriate plan for the child. §32A-4-29(G).
For purposes of §32A-4-29, a child is considered to have entered foster care on the earlier of (1) the date of the first judicial finding that the child has been abused or neglected, or (2) the date that is 60 days after the date the child was removed from the home. §32A-4-29(H).
Practice Note. The preferred practice is to obtain specific findings to support the decision not to seek TPR if the child has been in foster care for 15 out of the last 22 months. To support the decision not only under §32A-4-29(G) but also under ASFA, it would be preferable to state in the findings that the reason for not pursuing TPR is a “compelling reason.”
Children’s Court Rule 10-330 provides that a termination of parental rights proceeding may be commenced by motion filed:
At any stage of the abuse or neglect proceeding by CYFD, or
At any time after the disposition hearing by any party authorized by law to file a motion to terminate parental rights.
Practice Note. Rule 10-330 makes it clear that only parties may file a motion to terminate parental rights, which means that persons who were not parties to the proceeding originally or who have not been joined as parties would have to move to intervene and become a party in order to file. If the judge does not permit intervention in the abuse or neglect proceeding, termination procedures may be filed under the Adoption Act, specifically §32A-5-16.
Under Rule 10-108(D) the parties to a TPR proceeding are:
The parents of the child who have a constitutionally protected liberty interest in the child;
The legal guardians of the child; and
Any other person required by law to be a party.
If a parent was not already a party to the abuse or neglect proceeding, the parent must be named in the motion and joined as a party in the case at this time. Rules 10-108(D) and 10-330(B). “Parent,” as defined in the Children’s Code, includes a biological or adoptive parent who has a constitutionally protected liberty interest in the care and custody of the child. §32A-1-4(O). Accordingly, a parent need not be joined if the court determines that the parent has not established a protected liberty interest in his relationship with the child. See Handbook §2.2.
22.5.3 TPR MOTION REQUIREMENTS
The party seeking TPR must request it by motion, filed with the court. §32A-4-29(B). The motion must be substantially in the form approved by the Supreme Court. Rule 10-330(C); Children’s Court Form 10-470.
According to §32A-4-29(B), the motion must state all of the following:
The date, place of birth and marital status of the child, if known;
The grounds for termination and the supporting facts and circumstances;
The names and addresses of the persons or agency to whom custody might be transferred;
Whether the child resides or has resided with a foster parent who wishes to adopt the child;
Whether the motion is in contemplation of adoption;
The relationship or legitimate interest of the moving party to the child; and
Whether the child is subject to the Indian Child Welfare Act.
If ICWA applies to the child, the TPR motion must state all of the following under §32A-4-29(B)(7):
The tribal affiliations of the child’s parents;
The moving party’s specific actions to notify the parents’ tribes and the results of such actions, including the names, addresses, titles and telephone numbers of the persons contacted; and
What specific efforts were made to comply with the placement preferences stated in ICWA or mandated by the appropriate tribe.
The moving party must attach to the TPR motion copies of any correspondence with the tribes. §32A-4-29(B)(7).
22.5.4 NOTICE AND SERVICE
Under §32A-4-29(C), the moving party must serve all of the following persons with notice of the filing of the TPR motion and a copy of the motion:
The foster parent, preadoptive parent or relative providing care for the child with whom the child is residing;
Foster parents with whom the child has resided for 6 months within the previous 12 months;
Custodian of the child;
Any person appointed to represent any party; and
Any other person the court orders.
In serving notice, the party moving for TPR must comply with the Children’s Court Rules for service of motions, except that foster parents and all attorneys of record must be served by certified mail. §32A-4-29(C). Also, a parent who is being joined in the case for the first time must be served with a summons and a copy of the motion in the manner provided in Children’s Court Rule 10-104 on service of process. Rule 10-330(B). Notices served must state that the person served is required file a written response to the motion within twenty days if he or she intends to contest the motion. §32A-4-29(C).
In any case involving a child subject to ICWA, the moving party must send notice by certified mail to the tribes of the child’s parents and to any “Indian custodian” as defined by ICWA. §32A-4-29(C); see Handbook Chapter 39. ICWA imposes additional requirements for proper notice and service in TPR proceedings involving Indian children. ICWA requires the party moving for TPR to “notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” 25 U.S.C. §1912(a). If the identity or location of the parent or Indian custodian and the tribe cannot be determined, the moving party must notify the Secretary of the Interior. The Secretary then has 15 days after receipt of notice to notify the parent or Indian custodian and the tribe. Id.
Practice Note. As a matter of practice, when notice is sent to the Secretary, it is also sent to the regional office of the Department of the Interior’s Bureau of Indian Affairs.
The party moving for TPR need not serve a parent who was provided notice of the abuse and neglect proceeding under §32A-4-17 and who failed to make an appearance. §32A-4-29(C). Under §32A-4-17, the original summons is required to state clearly that the proceeding could ultimately result in termination of the respondent’s parental rights.
If the identity or whereabouts of a person entitled to service is unknown, the moving party must file a motion for an order granting service by publication supported by an affidavit detailing the efforts made to locate the person entitled to service. The court may order service by publication once it is satisfied that reasonable efforts to locate the person entitled to service have been made and that information as to the identity or whereabouts of the person is still insufficient to effect service otherwise under the Rules of Civil Procedure. §32A-1-13(C); Rule 10-104(I).
22.5.5 RIGHT TO COUNSEL
In cases of involuntary TPR, parents have the right to legal counsel. The right to counsel arises at the inception of the abuse or neglect case and continues through the TPR proceedings. For parents who are unable to obtain counsel for financial reasons, or when the court determines that “the interests of justice [so] require,” the court will appoint counsel. §32A-4-10(B). Similarly, children are represented in all abuse or neglect proceedings, including TPR proceedings, by a guardian ad litem or a youth attorney, depending on the child’s age. §32A-4-10(C). ICWA also guarantees appointment of counsel in TPR proceedings involving Indian children. 25 U.S.C. §1912(b).
In State ex rel. HSD in the Matter of the Termination of the Parental Rights of James W.H., 115 N.M. 256, 257 (Ct. App. 1993), the Court of Appeals held that the right to effective assistance of counsel extends to TPR cases. The Children’s Court Rules prohibit the appointment of an attorney to represent more than one parent “in any proceeding or case that may result in the termination of parental rights.” Rule 10-331(B).
22.5.6 TIMING OF THE TPR HEARING
The party filing the TPR motion should request a hearing on the motion. §32A-4-29(D). The hearing must be scheduled at least 30 days but no more than 60 days after service is completed on the parties entitled to service. Id. This 30-day time minimum comports with ICWA’s requirement that there be at least 10 days notice to the parent and the tribe in a TPR proceeding involving an Indian child, with the opportunity, if requested, for a 20 day extension. 25 U.S.C. §1912(a).
The 60-day deadline for holding the hearing on a motion for TPR was the subject of discussion in State ex rel. CYFD v. Anne McD, 2000-NMCA-020, 128 N.M. 618. Mother sought to have the motion dismissed for failure to hold a hearing within the 60 days required by statute. The court noted that, in contrast to the statute on adjudicatory hearings, §32A-4-29 does not provide a remedy for failure to hold the TPR hearing within 60 days. “The purpose of this provision is to ensure that the termination proceedings take place in a relatively timely manner, consistent with the best interests of the child…. Requiring that a motion be dismissed without prejudice serves no practical purpose since it would only lead to a subsequent refiling of the motion and further delays.” Id. ¶40. The Children’s Court did not abuse its discretion in permitting the hearing to occur outside the time limit. Id. ¶41.
22.5.7 CONDUCT OF THE TPR HEARING
The children’s court judge hears the TPR motion. There is no right to a jury trial in termination of parental rights proceedings under either the Children’s Code or the state constitution. State ex rel. CYFD in the Matter of T.J., 1997-NMCA-021, 123 N.M. 99.
In a case decided prior to the 1997 amendments to the Children’s Court Rules, the Court of Appeals held that the Rules of Civil Procedure apply in TPR proceedings. State ex rel. CYFD in re T.C. 118 N.M. 352 (Ct. App. 1994). “If the rules did not apply, there would be no stated procedure as the Children’s Court Rules do not provide a procedure….[I]n order to ensure fairness and certainty in these proceedings, we hold that the Rules of Civil Procedure apply in all proceedings to terminate parental rights.” 118 N.M. at 353.
In 1997, the Supreme Court amended Rule 10-101 to provide that the Children’s Court Rules govern procedure in the children’s courts in all matters involving children alleged by the state to be abused or neglected, including proceedings to terminate parental rights that are filed pursuant to the Abuse and Neglect Act. Rule 10-101(A)(1)(c). Presumably, the Rules of Civil Procedure still apply in situations for which the Children’s Court Rules do not provide procedures, such as the motion for summary judgment at issue in the T.C. case.
The Rules of Evidence apply in termination proceedings. Rule 10-115.
A question posed in Anne McD. was whether the parent’s due process rights were violated when the court permitted six out of the seven witnesses for CYFD to appear by telephone in a TPR hearing. The Court of Appeals held that the mother’s rights to procedural due process were not violated under the circumstances in the case. State ex rel. CYFD v. Anne McD., 2000-NMCA-020, ¶33, 128 N.M. 618. While so holding, the court emphasized the importance of a parent’s right to procedural due process prior to TPR and directed trial courts to be guided in the future by a series of criteria whenever a party requests permission to elicit telephone testimony from its witnesses in TPR cases. See Anne McD. at ¶21 for the list of considerations. The court also stated that, before such testimony can be elicited over objection, the children’s court should state in the record the reasons why telephonic testimony is to be allowed and explain why the use of such testimony will not prejudice a party’s rights or lead to an increased risk of deprivation of a parent’s right to procedural due process. Id. ¶35.
Recently, the Court of Appeals also addressed a situation where the district court had taken judicial notice of the file below, including all pleadings. The Court of Appeals used a balancing test to determine if the taking of judicial notice had violated the mother’s due process rights. It determined that because the record reflected sufficient evidence presented at trial, other than the material subject to judicial notice, to support the findings of the trial court, the mother’s due process rights to a fair trial had not been violated. The Court of Appeals warned against the blanket use of judicial notice in termination of parental rights cases. State ex rel. CYFD v. Brandy S., 2007-NMCA-135, 168 P.3d 1129.
22.5.8 RIGHT OF THE PARENT TO PARTICIPATE IN THE TPR HEARING
In State ex rel. CYFD in the Matter of Ruth Ann E., 1999-NMCA-035, 126 N.M. 670, the court found that a parent does not have a procedural due process right to appear in person at a TPR hearing but does have a right to participate meaningfully in the hearing. In Ruth Anne E., a parent facing a TPR proceeding was incarcerated and unable to attend the TPR hearing. The court stated that “because a fundamental liberty interest is implicated in proceedings involving the termination of parental rights, a parent who is incarcerated and is unable to attend the hearing on the state’s petition to terminate…is entitled to more than simply the right to cross-examine witnesses or present arguments through his attorney, or to present deposition testimony.” Id. ¶25. The court found that a parent who is unable to attend the hearing must have the right to “meaningful participation” in the hearing. After reviewing the state’s evidence, the parent must be able to present evidence by deposition or by telephone and to challenge the state’s evidence through additional cross-examination or rebuttal testimony. Id.
In State ex rel. CYFD v. Christopher L., 2003-NMCA-068, 133 N.M. 653, the parties tried to secure the incarcerated father’s presence but were unsuccessful. The judge offered the father the opportunity to participate in his TPR hearing by phone but he cursed the judge and hung up. The Court of Appeals ruled that the father was not denied due process when the children’s court proceeded without him, based on this fact among others. Id. ¶¶22-24.
In State ex rel. CYFD v. Mafin M., 2003-NMSC-015, 133 N.M. 827, the Supreme Court observed that the mother was suffering from severe mental illness and acute substance abuse and that the procedures discussed in Ruth Anne E. were simply unworkable given her mental and physical condition. “As the record demonstrates, the district court made every reasonable attempt to allow her to participate meaningfully in the proceedings.” Id. at ¶21. (See the case for a description of these efforts.) The Supreme Court concluded that “she needed an indeterminate amount of time to prepare herself to be in a position to participate in the proceedings” and that “any further delays in the proceedings would have been unwarranted and would have infringed upon the State’s compelling interest in the welfare of the boys.” Quoting an earlier case, the court continued: “When balancing the interest of parents and children, the court is not required to place the children indefinitely in a legal holding pattern, when doing so would be detrimental to the children’s interests.” Id. ¶¶22-24.
22.5.9 PROPRIETY OF SUMMARY JUDGMENT
Summary judgment may be used to terminate parental rights where there are no disputed issues of material fact underlying the basis for termination. State ex rel. CYFD in re T.C., 118 N.M. 352, 353 (Ct. App. 1994). However, summary judgment is not appropriate where material facts are in dispute. State ex rel. CYFD v. Erika M., 1999-NMCA-036, 126 N.M. 760. The court in Erika M. recognized that due process considerations in TPR proceedings should limit summary judgment to rare cases and might limit a trial court’s reliance on judicial review hearings for its findings.
22.5.10 BURDEN OF PROOF ON TPR MOTIONS
The grounds for most termination of parental rights motions must be proved by clear and convincing evidence. §32A-4-29(I). This standard requires proof stronger than a mere “preponderance” and yet something less than “beyond a reasonable doubt.” In the Matter of the Adoption of Doe, 98 N.M. 340, 345 (Ct. App. 1982). Where a TPR motion involves a child subject to the Indian Child Welfare Act, the grounds for termination must be proved by the higher standard of beyond a reasonable doubt. §32A-4-29(I). Evidence, including testimony of qualified expert witnesses, must show beyond a reasonable doubt that continued custody with the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. Id.; 42 U.S.C. §1912(f); see Handbook §39.2.9.
22.5.11 ORDER TERMINATING PARENTAL RIGHTS
If the court terminates parental rights, it must appoint a custodian for the child and fix responsibility for the child’s support. §32A-4-29(J). If the TPR concerns a child to whom ICWA applies, the court must make specific findings that ICWA’s requirements have been met. §32A-4-29(K). Presumably, this provision obligates the court to find that it has complied with ICWA’s jurisdictional, notice, service, appointment of counsel, burden of proof and placement preference requirements. See Chapter 39 on ICWA.
22.5.12 EFFECT OF A TPR JUDGMENT
A TPR judgment divests the parent of all legal rights and privileges with respect to the child and dispenses with the necessity of obtaining parental consent to adoption or notifying the parent of any subsequent adoption proceeding concerning the child. The judgment does not affect a child’s inheritance rights from and through the child’s parents unless and until there is an adoption. §32A-4-29(L).
22.5.13 ATTORNEYS' FEES
The guardian ad litem or youth attorney for the child may recover attorney’s fees from CYFD in one very particular TPR situation. All of the following preconditions must exist to enable the guardian ad litem or youth attorney to recover attorney’s fees under §32A-4-30:
The child is in CYFD’s legal custody;
The GAL or the youth attorney requests in writing that CYFD move for TPR;
The GAL or youth attorney gives CYFD written notice that, if CYFD does not move for TPR, the guardian ad litem or youth attorney will make the motion and seek attorneys’ fees;
CYFD refuses to litigate the motion for TPR or fails to act in a timely manner; and
The guardian ad litem or youth attorney successfully moves for TPR.
The guardian ad litem or youth attorney must apply to the court for an award of attorney’s fees for this provision to apply.
Click here for voluntary termination of parental rights (Relinquishment) checklist.
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