N.M. R. Child. Ct. 10-318

As amended through August 23, 2024

Rule 10-318 - Placement of Indian children

A.Placement preferences. The court shall ensure that the department follows the placement preferences established by the Indian Child Welfare ct and its regulations when the following conditions are met:

(1) the court finds at the custody hearing or any subsequent hearing that the child is an Indian child or there is reason to know that the child is an Indian child; and

(2) legal custody of the child is or has been transferred or awarded to the department.

B.pplicability. The placement preferences must be applied in any foster care, preadoptive, or adoptive placement by the department unless there is a determination on the record that good cause exists to not apply those placement preferences.

C.Departure from placement preferences; good cause. If any party asserts that good cause exists not to follow the placement preferences, the reasons for that belief or assertion must be stated orally on the record or provided in writing to the parties to the proceeding and the court. The party seeking departure from the placement preferences bears the burden of proving by clear and convincing evidence that there is good cause to depart from the placement preferences.

D.Good cause; determination.

(1)Motion. The court shall determine whether good cause exists to depart from the placement preferences upon the occurrence of the following:

(a) a written or oral motion by a party or the Tribe to determine whether good cause exists to depart from the placement preferences; or

(b) the court's own motion when it appears that a placement or recommended placement may depart from the placement preferences.

(2)Record; factual basis. determination of good cause to depart from the placement preferences shall be made on the record or in writing and shall include factual findings based on evidence in the record or the stipulation of the parties. ny hearing on a motion under this paragraph shall be held within thirty (30) days of the motion.

E.Good cause; permissible considerations. determination of good cause to depart from the placement preferences must be based on one or more of the following considerations:

(1) the request of one or both of the Indian child's parents, if they attest that they have reviewed the placement options, if any, that comply with the order of preference;

(2) the request of the child, if the child is of sufficient age and capacity to understand the decision that is being made;

(3) the presence of a sibling attachment that can be maintained only through a particular placement;

(4) the extraordinary physical, mental, or emotional needs of the child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live; or

(5) the unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the preference criteria, but none has been located. For purposes of this analysis, the standards for determining whether a placement is unavailable must conform to the prevailing social and cultural standards of the Indian community in which the Indian child's parent or extended family resides or with which the Indian child's parent or extended family members maintain social and cultural ties.

F.Good cause; impermissible considerations.

(1)Socioeconomic status. placement may not depart from the placement preferences based on the socioeconomic status of any placement relative to another placement.

(2)Ordinary bonding or attachment. placement may not depart from the placement preferences based solely on ordinary bonding or attachment that flowed from time spent in a non-preferred placement that was made in violation of ICW.

[Approved by Supreme Court Order No. 16-8300-038, effective for all cases pending or filed on or after November 28, 2016.]

N.M. R. Child. Ct. 10-318

Committee commentary. - The Indian Child Welfare ct and its regulations provide the following placement preferences for Indian children in foster-care or preadoptive placements:

(a) In any foster-care or preadoptive placement of an Indian child under State law, including changes in foster-care or preadoptive placements, the child must be placed in the least restrictive setting that:

(1) Most approximates a family, taking into consideration sibling attachment;

(2) llows the Indian child's special needs (if any) to be met; and

(3) Is in reasonable proximity to the Indian child's home, extended family, or siblings.

(b) In any foster-care or preadoptive placement of an Indian child under State law, where the Indian child's Tribe has not established a different order of preference under paragraph (c) of this section, preference must be given, in descending order as listed below, to placement of the child with:

(1) member of the Indian child's extended family;

(2) foster home that is licensed, approved, or specified by the Indian child's Tribe;

(3) n Indian foster home licensed or approved by an authorized non-Indian licensing authority; or

(4) n institution for children approved by an Indian Tribe or operated by an Indian organization which has a program suitable to meet the child's needs.

(c) If the Indian child's Tribe has established by resolution a different order of preference than that specified in ICW, the Tribe's placement preferences apply, so long as the placement is the least-restrictive setting appropriate to the particular needs of the Indian child, as provided in paragraph (a) of this section.

(d) The court must, where appropriate, also consider the preference of the Indian child or the Indian child's parent 25 C.F.R. § 23.131.

The Indian Child Welfare ct and its regulations provide the following placement preferences for Indian children in adoptive placements:

(a) In any adoptive placement of an Indian child under State law, where the Indian child's Tribe has not established a different order of preference under paragraph (b) of this section, preference must be given in descending order, as listed below, to placement of the child with:

(1) member of the Indian child's extended family;

(2) Other members of the Indian child's Tribe; or

(3) Other Indian families.

(b) If the Indian child's Tribe has established by resolution a different order of preference than that specified in ICW, the Tribe's placement preferences apply.

(c) The court must, where appropriate, also consider the placement preference of the Indian child or Indian child's parent. 25 C.F.R. § 23.130.

The rule requires the court to ensure that the department follows the placement preferences when custody has been "transferred or awarded" to the department. The use of both terms is consistent with the Children's Code and is intended to clarify that the placement preferences must be followed irrespective of when the department receives custody of the child. See NMS 1978, §32-4-18(D)(2) (providing that the court may "award" custody of the child to the department at the conclusion of the custody hearing); §32-4-22(B)(2) (providing that the court may "transfer" custody of the child to the department at the conclusion of the dispositional hearing).

[Approved by Supreme Court No. 16-8300-038, effective for all cases pending or filed on or after November 28, 2016.]