CHILD WELFARE LAW:

HISTORY &
KEY PRINCIPLES
Dan Pearlman
djpearlman1@msn.com
daniel.pearlman@state.nm.us

Evolution of the Abuse/Neglect

SYSTEM
1899: First juvenile courts established to
save potentially criminal children from
becoming criminal.
No distinction : abuse/neglect and
delinquency

Child saving = removal/placement of

problem kids

No rights for parents

Parens Patriae, primarily focused on

Rights of
Parents Develop

Constitutional

1920s : parents have a fundamental

liberty interest in the care, custody and
control of their children (though not to
due process before removal).

Meyer v. Nebraska, 262 U.S. 390 (1923)

(teaching foreign language in school)
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
(private schools)

It is cardinal with us that the custody,

care and
nurture of the child reside first in the

In Re Gault,

387 U.S. 1 (1967)

Due process, not benevolent intentions,

produces justice. Justice Abe Fortas

Struck down parens patriae authority of the court to

remove children from home without a hearing (to deal
with criminal conduct).

Did not disturb the parens patriae doctrine in dependency

cases.

Hailed by some as advancement in childrens rights.

Criticized by others as the criminalization of the juvenile

court and the beginning of the end of the courts authority
to treat children like children rather than adults.

Childs best interest today can retain some of the old

paternalism, if we are not careful.
4

Rights of
Parents
1972: Unwed father
could not be presumed to be
Constitutional

an unfit parent;
Entitled to a hearing, under equal protection
clause)

Stanley v. Illinois, 405 U.S. 645

1982: The interest of parents in the care

and custody of their children is a
fundamental liberty interest protected by
the due process clause of the 14th
amendment.
- Santosky v. Kramer, 455 U.S. 745
(because of due process protection, standard of proof for TPR
5
must be clear and convincing).

Despite the Supreme Court's

repeated
recognition of these significant
fundamental
parental liberty interests, these
interests have
never been seen to be without
limits.
-Lehr v. Robertson, 463 US
248 (1983).

The Right to Parent Requires a

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

Sometimes marriage is enough.

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

Familial Relationship
Parent in New Mexico
32A-1-4(O)
Parent under Childrens Code includes a
biological or adoptive parent if he/she has a
constitutionally protected liberty interest in the
care and custody of the child.
- Per Lehr case, probably means significant

custodial,
personal, or financial relationship with his child.
- Note: marriage is not mentioned.

BUT NM Adoption Act adds rights for other

fathers.
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Familial Relationship:
Acknowledged Father In
Adoption Act
32A-5-3(F)(4)

Unwed bio father can become an

acknowledged father, if he:
Acknowledges

paternity by registering with the

putative father registry; or

Is

on the birth certificate (with his consent); or

Is

obligated to pay support (because of a written

voluntary promise or court order); or

has

openly held out the child as his own by

establishing a custodial, personal or financial
relationship with the child.
10

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

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Presumed Father

32A-5-3(V)

(1) husband of the biological mother at

the time the adoptee was born; or
(2) was married to the mother and either
the adoptee was born during the term of
the marriage or the adoptee was born
within three hundred days after the
marriage was terminated by death,
annulment, declaration of invalidity or
divorce; or
(3) attempted to marry the mother before
the adoptee's birth by a marriage
solemnized in apparent compliance with12

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

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Therefore, abuse/neglect cases

need to determine both the
constitutional and statutory
rights of both a biological
father and a presumed or
acknowledged father.
Bio father may or may not
have a protected liberty
interest. Husband must
consent to adoption even if no 14

Examples
1-

Husband is presumed father but is

not bio dad. The bio dad has
established a relationship as an
acknowledged father.

- Bio dad was married to mother when

child was conceived, so is a presumed
father, but he has not established a
relationship and is not on the birth
certificate. Moms boyfriend after
divorce has established a relationship
with the child.
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Parents Substantive Rights

An unfavorable personal status, such
as low IQ, poverty, mental illness,
incarceration, prior convictions, or
addiction, is relevant only to the
extent that it prompts either the harms
defined as abuse, or the neglect which
is defined as the failure to provide
proper parental care and control or an
inability to discharge his
responsibilities to and for the child. 16

FIT PARENTS ARE ENTITLED TO

LEGAL CUSTODY (usually)
-Where the custodial parent has neglected child, the

noncustodial parent is entitled to custody unless the

Department can establish the noncustodial parent is
unfit. Mary L., 108 N.M. 702 (Ct.App. 1989); reaffirmed, Lisa
A., 2008-NMCA-087.

BUT NOTE: Department has a legal duty to investigate

allegations of current unfitness. Court can granting
Department legal custody until the investigation is
complete. In re A.H., 1997-NMCA-118
Extraordinary circumstances may arise [warranting state
custody] where, after a long separation between parent and
child, the necessary parent-child bond has disintegrated
17
[even though parent not found unfit]. Benjamin O., 2007-

Parents Procedural Rights

Right to Due Process:
Due

process = notice and opportunity to be

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

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Parents Procedural Rights:

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

Notice and Opportunity to be
Heard
Parents who are not present at trial must be
afforded an opportunity to be heard and
present a defense.
Alternative measures must allow the parent to:

testify on his/her own behalf,

cross-examine witnesses,
confer with counsel, and
have State produce clear and convincing evidence :
no proffers.

Rosa R., 1999-NMCA-141; Stella P., 1999NMCA-100; Ruth Anne E., 1999-NMCA-035.
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Abuse and Neglect Cases Are

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

Criminal Proceedings
Because neglect and abuse proceedings are
civil proceedings, the Confrontation Clause of
the Sixth Amendment of the U.S.
Constitutionis not at issue [in context of
hearsay exceptions]. Pamela A.G., 2006-NMSC019.

But NOTE: similar interests do protect

parents right to cross examine witnesses.
Exclusionary rule does not apply in the
context of abuse and neglect proceedings
because it might thwart the States interest 22
in

Rights of the Child

The courts have not explicitly articulated the
rights of children.
The truth is self-evident that children have
certain inalienable needs:

to be free from physical and emotional harm at

the hands of their caretakers; and

to be provided with the essentials of food,

shelter, education and medical care.

If the parent cannot fulfill the duty to protect,

train and discipline the child and to provide
the child with food, shelter, personal care,
education and ordinary and emergency
medical care, the state may intervene legally.
Cf. 32A-1-4(N) (defining legal custody).
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Best Interest of the Child is

Paramount
Although best interest of the child findings are
required, best interest of the child is not defined
in statute or case law.
Best Interest of the Child = touchstone against which
every placement and permanency decision must be
tested.
Best Interest of the Child can be understood by
remembering the purposes of the Childrens Code,
as described by 32A-1-3(A):

first to provide for the childs care, protection and

wholesome mental and physical development,

and then to preserve the unity of the family whenever

possible.

The child's health and safety shall be the paramount

concern.

See also Michael T., 2007-NMCA-163.

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Best Interest of the Child:

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

The Youth Attorney

Best interest is different for every child. But,

older children are more likely to have a better
idea of their best interest.
32A-1-7.1 & 32A-4-10 (2005)established
that youth 14 & older have YAs, not GALs.
32A-4-10(F) requires the court to assure that
the GAL zealously represents the child's best
interest and that the YA zealously represents
the child.
To that end, the YA protects the youth client's
best interests through zealous advocacy and
effective client counseling.
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Everyone Involved Should

Protect
the Best Interest of the Child
Since the goal of the proceedings is the
best interest of the child, ALL the parties
AND the Courtshould be working to
protect the childs best interest.
Of course, each partys view of best
interestand approach to protecting
the childs best interest--may be
different.
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Federal Statutes
More Cooks for the Soup
Federal laws and regs impose
requirements that must be met to
ensure essential federal funding for:
child

welfare services

family
family
foster

preservation

support services

care maintenance payments

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Federal Statutes
CAPTA: Child Abuse Treatment and
Prevention Act of 1974, 42 U.S.C. 51015107.
GALs

for children
Definitions of child abuse and neglect
Reporting and immunity requirements
All now incorporated in NM law
1980 Adoption Assistance and Child
Welfare Act, PL 96-272:
Court

Oversight
Reasonable efforts to preserve family
Periodic review

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Federal Statutes contd

1981 Social services block grants created CPS
funding to states.
1997 ASFA: Adoption and Safe Families
Act, PL 105-89:

Stop children languishing in foster care.

Safety, permanency and well-being.

Court determines permanency goal within

12 months.

TPR must be filed when child has been in

custody 15 of last 22 months unless
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compelling reason not to.

ASFA - Best Interest of the Child

and
Contrary to the Welfare
The court shall determine whether:
continuation in the home would be
contrary to the childs welfare, and
reasonable efforts were made to prevent
removal from the home.
45 CFR 1356.21 (ASFA Regs - conditions of
funding)
ASFA EMPHASIZES THE CHILDS
SAFETY, PERMANENCY AND WELLBEING.
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Termination of Parental Rights

ASFA: TPR proceedings must be filed for
a child in foster care 15 of the most
recent 22 months unless compelling
reasons not to file.
Good

Practice: TPR should be filed

no later than 30 days after the agency
or court determines filing is
appropriate (= change of permanency
plan to TPR).
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Compelling Reasons Not to File

TPR
after 15/22 months in foster care:

Parent

has made substantial progress

and it is likely that the child will be
able to safely return home within 3
months.

Child

has a close and positive

relationship with a parent and a nonTPR permanent plan will provide the
most secure and appropriate
placement

The

child is fourteen years of age or

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Compelling Reasons Not to File

TPR, cont.

parent is terminally ill provided

that the parent has designated a
guardian for his child.
The

child is not capable of functioning

in a family setting. . . .
Grounds

do not exist for TPR.

The

child is an unaccompanied, refugee

minor (international issues); or
Adoption

is not an appropriate plan for

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Termination of Parental Rights

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

reasons why child needs to be

permanently protected from parent.
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Overall Goals
Avoiding

unnecessary separation of children

& families.
Timely decisions regarding placement and
permanency:

Concurrent planning

Alternative dispute resolution

One family/one judge

Providing competent and adequately

compensated
representation.

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