A. Unless a child alleged to be neglected or abused is also alleged or adjudicated delinquent: (1) the child shall not be held in a jail or other facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged to be delinquent children; and (2) there shall be a preference that the child be placed in the home of a relative of the child when a relative is available to provide foster care; provided that: (a) placement with a relative is in the best interest of the child; (b) the relative signs a sworn statement that the relative will not return the child to or allow unsupervised visits with the parent, guardian or custodian who is alleged to have committed the abuse or neglect, unless otherwise directed by the department or the court; and (c) within three days of accepting custody of the child, the relative completes an application form for licensure to operate a foster home pursuant to the Children's Code. B. The department shall make reasonable efforts to locate a relative of the child to provide foster care. If a relative is not available to provide foster care, the child may be placed in: (1) a licensed foster home or any home authorized under the law for the provision of foster care or group care or use as a protective residence; (2) a facility operated by a licensed child welfare services agency; or (3) a facility provided for in the Children's Shelter Care Act [32A-9-1 to 32A-9-7 NMSA 1978]. History: 1978 Comp., § 32A-4-8, enacted by Laws 1993, ch. 77, § 102; 2019, ch. 21, § 2. The 2019 amendment, effective June 14, 2019, established a preference that a child taken into temporary protective custody be placed with a relative of the child when a relative is available to provide foster care, required relatives providing foster care to initiate licensing procedures within three days of accepting custody of a child, and required the children, youth and families department to make reasonable efforts to locate a relative of the child to provide foster care; deleted former Subsection A and designated the formerly undesignated introductory clause as Subsection A; in Subsection A, in Paragraph A(1), after "delinquent children", deleted "but may be placed in the following community-based shelter care facilities", and added Paragraph A(2); added new subsection designation "B" and redesignated former Subsections B through D as Paragraphs B(1) through B(3), respectively; and in Subsection B, added the introductory clause. Removal of an Indian child from the custody of their guardian requires a finding that active efforts designed to prevent the breakup of the Indian family have been made. — When a petition for abuse and neglect seeking removal of an Indian child from the custody of their parent or legal guardian is filed by CYFD, the district court must make findings required by the federal Indian Child Welfare Act (ICWA) at the adjudicatory hearing, including the finding that active efforts designed to prevent the breakup of the Indian family have been made. The ICWA regulations and the legislative history of ICWA require remedial active efforts be made prior to initiating a placement and must be designed to prevent having to take a child into state custody. The definition of active efforts focuses on the timeliness of those efforts, provides that they be directed to maintaining the Indian child with their family, or, if a separation has already occurred, reuniting the child with their family, and specifies that efforts be conducted, to the maximum extent possible, in partnership with the Indian child's tribe and extended family. Active assistance in utilizing, accessing, and overcoming barriers to services is required regardless of the stage of the proceedings, and to be effective, remedial efforts must be undertaken promptly upon referral to the agency for abuse or neglect. State ex rel. CYFD v. Eric E ., 2024-NMCA-026. The district court's finding that the active efforts required by the federal Indian Child Welfare Act were made by CYFD prior to taking the Indian child into involuntary state custody was not supported by substantial evidence. — The district court's finding that CYFD made the active efforts required by the federal Indian Child Welfare Act prior to taking the Indian child into involuntary state custody was not supported by substantial evidence where the record established that CYFD's efforts were not tailored to the goal of restoring the child to his parents, to his extended Indian family, or to his tribal community; CYFD failed to actively search for the child's father and prepare him to reunite with the child, it failed to contact and obtain assistance from the child's tribe, it failed to provide any assistance to the child's guardians in freeing the child for return to a parent or placement with an extended family member, and it offered no evidence to show that it had made active efforts to place the child in the treatment foster care recommended by the residential treatment center where the child had been placed. State ex rel. CYFD v. Eric E ., 2024-NMCA-026. A placement preference exists in favor of a child's relatives over non-relatives, but the preference must be tempered by the best interests of the child involved. — The intended purpose of the Abuse and Neglect Act, 32A-4-1 to 32A-4-35 NMSA 1978 in addition to making decisions in the child's best interests and providing due process to all involved parties, is to preserve the unity of the family, and therefore once a child is placed in the custody of the children, youth and families department, and a court has made a finding of abuse or neglect, a placement preference with qualified relatives is triggered, which remains the case for any future permanency changes involving the child. The law also supports, however, the notion that the preference must be tempered by the best interests of the child involved and therefore, there may be circumstances in which a court could reasonably conclude that a non-relative foster parent with whom a child is living and has an emotionally significant relationship may and should be given preference over a relative. Foster Parent Placement Preference (7/1/22), Att'y Gen. Adv. Ltr. 2022-05.
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