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Legal Services: Resources for Child Welfare Clients
Carol Garner, Esq., Law Access New MexicoLarry Kronen, Program Director, Kinship Guardianship Program, Pegasus LSCLiz McGrath, Executive Director, Pegasus Legal Services for ChildrenErin Olson, Director, Volunteer Attorney Program State Bar of New Mexico
Agenda:
• Overview of legal services system
• Grandparents & the Kinship Guardianship Act
• Orders of Protection & Custody Orders
• Legal services for children & youth
• Question & Answer
Legal Services: Resources for Child Welfare Clients
Who’s Here?
Legal Services: Resources for Child Welfare Clients
Overview of theCivil Legal Services System
◦A network of non-profit agencies◦Providing civil legal aid to low-income individuals◦Income eligibility varies by provider • Generally up to 200% of FPG* ($47,100 for family
of four)
*2013 Federal Poverty Guidelines (see handout)
New Mexico’s Civil Legal Services System
Weaknesses:• Services coordinated in ad hoc fashion• All agencies underfunded, not able to meet need• Can be very hard for low-income individuals to
access services
New Mexico’s Civil Legal Services System
Strengths:• Experienced, dedicated staff who want to help low-
income clients
• We are working hard to coordinate services, reduce overhead, and increase revenue so we can expand services.
New Mexico’s Civil Legal Services System
• Statewide legal helpline – Law Access NM
• Large statewide provider – NM Legal Aid
• Large specialized provider – DNA People’s Legal Services (NW of state)
• Numerous smaller agencies specializing in particular issues, populations.
System Structure
• Primary point of entry to system
• Legal helpline for low-income New Mexicans
• Income eligibility 200% of poverty
Law Access New Mexico
• Family law
• Landlord Tenant
• Consumer law
• Employment/Unemployment
• Benefits
Law Access New Mexico
•Help with self-representation
•Referrals to other legal services
•No citizenship requirement
• Limited to help over the telephone
Law Access New Mexico
• Statewide• Income eligibility• 125%-200% of FPG depending on legal area
• No assistance to undocumented people• Except in Domestic Violence cases
New Mexico Legal Aid
Offices in:Albuquerque
Clovis
Gallup
Las Cruces
Las Vegas
Roswell
Santa Ana
Santa Fe
Silver City
Taos
New Mexico Legal Aid
Legal services:• Domestic violence orders of protection
• Family law (for DV victims)
• Consumer law
• Landlord/Tenant
• Benefits
• Foreclosure defense
• Unemployment Insurance Compensation
• Native American Program
New Mexico Legal Aid
• Serves Native American communities• Crownpoint• Dulce• Farmington• Shiprock
DNA People’s Legal Services
• Civil rights, tribal sovereignty• Domestic violence • Family law • Consumer law• Landlord/Tenant• Benefits• Education• Employment
DNA People’s Legal Services
• New Mexico Immigrant Law Center• Legal assistance to low-income immigrant families facing
separation due to deportation, asylum seekers, and unaccompanied minors.
• Catholic Charities• Legal assistance to immigrants in gaining legal status
including victims of DV
Immigration
• Disability Rights New Mexico (DRNM)• Designated by Federal law to advocate on behalf of
people with disabilities• Statewide
• Native American Disability Law Center (NADLC)• Advocates for legal rights of Native Americans with
disabilities• San Juan & McKinley Counties
Disability
• Pegasus Legal Services for Children
• Advocacy, Inc.
Agencies focusing on Children
• Statewide• Services available depending on resources
• Income eligibility:• Sliding scale for kinship care givers• Free to youth 23 and under
Pegasus Legal Services for Children
• Young Parent Project• Homeless/Runaway Youth• Special Education• Juvenile Justice • Kinship Guardianship Program• Abuse/Neglect
Pegasus Legal Services for Children
• Abuse/Neglect – representation of children in 2nd Judicial District• Guardianship Program – uncontested cases
statewide• Adoptions - uncontested cases statewide*Income eligibility – sliding fee scale for guardianship & adoptions.
Advocacy, Inc.
Grandparents and
Kinship Guardianship
Guardianship of Minors Probate Code §45-5-201 et seq
Permanent Guardianship Children’s Code: § 32A-4-31 et seq
Kinship Guardianship Domestic Relations Code § 40-10B-1 et seq
Guardianship
Who May File◦A kinship caregiver: an adult (not have to be
a blood relative), with whom child resides, provides care, maintenance and supervision consistent with responsibilities of a parent
KINSHIP GUARDIANSHIP ACT
Parents have consented in writing or Parents’ rights have been terminated or
suspended by a court order or
What the Petitioner Needs to Prove
or Child has lived with petitioner ◦Without an objecting parent in the home◦For 90 days or more immediately preceding the
date of filing and ◦The objecting parent is currently unwilling or
unable to provide adequate care, maintenance, and supervision for the child
and
What the Petitioner Needs to Prove
THE GUARDIANSHIP IS IN THE CHILD’S BEST INTERESTS
On the merits-◦Between 30-90 days from filing
Temporary Kinship Guardianship◦Within 20 days of filing the Petition
When Will A Hearing Be Scheduled?
Orders of Protectionand
Custody Orders
• Restrains one party from committing acts of domestic violence
• Prohibits further contact • Quick access to the Courts• Allows police to arrest if there is a violation
Orders of Protection
• Further relief: – Exclude Respondent from home, school,
work– Temporary custody or child support orders–Restitution from any damages–Other relief as necessary
Orders of Protection
– Husband/wife (or ex)– Girlfriend/boyfriend (or ex)– Co-parent of a child– Grandparent– Continuing personal relationship (dating/intimate
relationship)– Applies to same-sex relationships– Co-habitation not necessary– Stalking or Sexual Assault –no relationship required
Which Relations qualify for a DVOP?
• As Petitioner: Parent or legal guardian can file OBO (on behalf of) a minor– Against minor or adult
• As Respondent: Minors can be respondents- Must be served on parent or guardian of restrained minor
Minors and DVOPs
• Physical abuse or threat of physical abuse• Criminal trespass or criminal damage to property• Threat causing imminent fear of bodily injury by any
household member• Stalking• Severe emotional distress• Harm or threatened harm to children• Harassment, telephone harassment• Sexual assault• Not included: self defense or defense of others
DOMESTIC ABUSENMSA §40-13-2(D)
“You need to get a restraining order”
“You need to go get custody”
Obtaining DVOPs and Custody Orders
Proof needed:
•Act of domestic abuse as defined by law
•Continuing threat of continued abuse and harm.
Getting a Restraining Order
• Physical abuse or threat of physical abuse• Criminal trespass or criminal damage to property• Threat causing imminent fear of bodily injury by any
household member• Stalking• Severe emotional distress• Harm or threatened harm to children• Harassment, telephone harassment• Sexual assault• Not included: self defense or defense of others
DOMESTIC ABUSENMSA §40-13-2(D)
While a DVOP may include a temporary custody order if the parties have children
The DVOP is not a substitute for a custody order
Restraining order (cont’d)
Temporary custody – 6 monthsPetition to Establish Custody orMotion to Modify Custody
Restraining order (cont’d)
DV ResourcesNew Mexico Legal Aid 10 offices statewide Referrals through CYFD-funded agencies or other local referral partners 3 levels of service: representation, brief service, advice and counsel
NMLA DV/SA/Stalking HELPLINE505-243-4300 or 1-877-974-3400
Shelters/Service Providers – link to map of shelters http://cyfd.org/domestic-violence
Establishing & Modifying Custody
• Petition to Establish•Paternity•Custody• Timesharing•Child Support
Establishing Custody
• File Petition• Serve opposing party with pleadings• Opposing party has 30 days to respond• Judge can then set a hearing• Can easily take 3 months to get before a
judge
Establishing custody (cont’d)
• Emergency Motion for Interim Order
• Order to govern until hearing on merits
• Can still take months to get a hearing
• Difficult for person representing self
Establishing custody (cont’d)
• Re-open existing domestic relations/custody case
• Substantial change in circumstances • Other parent must be served • 30 days for other parent to respond
Modifying Custody
• 2 - 3 months to hearing• 2-3 weeks even if allegations of
imminent serious physical threat to the child/ren
• If situation is so dire - CYFD should be involved
Modifying Custody (cont’d)
• Process is complicated
• Limited legal services (especially for non-DV)
• Difficulty of putting on proof w/out a lawyer
Challenges in DV and Domestic Relations Cases
• Must have clear proof of abuse or neglect
• Critical to have CYFD investigator testify
• Testimony must be in-person or by telephone
Challenges in DV and Domestic Relations Cases
• Letters/affidavits are hearsay
• Generally not admissible
• Police reports are hearsay
• Police officers must testify in person
Challenges in DV and Domestic Relations Cases
• The officer who prepared the report must be subpoenaed to testify
• Officer’s testimony is subject to the rules of evidence
• Eliciting testimony from witness is not simple
Challenges (cont’d)
Albuquerque: 505.998.4529
Statewide: 800.340.9771
Carol Garner: [email protected]
Law Access New Mexico
• Volunteer Attorney Pool
• Court Self-Help Centers
• Legal Fairs
• Legal Clinics
More Resources for Parents
Legal Resources for Children & Youth
Pegasus Young Parent Project• Age 23 and under
• Priority to age 19 and under
• Direct representation to establish custody, timesharing, child support
• Telephone information and advice
Family Law for Young Parents
Pegasus Legal Services for Children Disability Rights New Mexico Native American Disability Law Center Private attorneys
Special Education
• Pegasus Legal Services for Children • Accessing benefits & services• Housing•Maintaining relationships with siblings in
foster care• Obtaining identity documents• Juvenile Justice• Records sealing and expungement
Youth Aging Out of Foster Care
• Kinship Guardianship Program• Guardianship Legal Helpline – information, advice,
referrals
• Direct representation in most parts of the state
• Community legal education
Pegasus Legal Services for Children
Questions?
Carol Garner, Esq. – [email protected]
Larry Kronen, Esq. – [email protected]
Liz McGrath, Esq. – [email protected]
Erin Olson, Esq. – [email protected]
Thank you!
