N.M. R. Child. Ct. 10-802

As amended through August 23, 2024
Rule 10-802 - Initial hearing; review hearings; discharge hearing
A.Initial hearing. An initial hearing on the petition shall be held within ninety (90) days from the date a petition is filed. At the initial hearing the court shall
(1) review the voluntary services and support agreement and determine whether the agreement is in the best interest of the eligible adult; and
(2) review the transition plan to determine whether it meets the requirements of the Fostering Connections Act.
B.Required report. Five (5) days before each review and discharge hearing, the department shall prepare and present to the court and the eligible adult a report addressing progress made in meeting the goals in the transition plan, including a proposal for transitioning to independent living, and shall propose modifications as necessary to further those goals.
C.Review hearings. Review hearings shall be held at least every six (6) months and shall be conducted in a manner that encourages the eligible adult's meaningful participation by considering procedural modifications and flexible scheduling that meets the eligible adult's needs.
D.Active efforts required. At each review hearing, the department shall show that it has made active efforts to comply with the voluntary services and support agreement and effectuate the transition plan. If the court finds that the department has not made active efforts to comply with the voluntary services and support agreement and effectuate the transition plan, the court may order additional services and support to achieve the goals of the transition plan and the goals of state and federal law.
E.Discharge hearing.
(1)Discharge hearing based on age. This discharge hearing is also the final review hearing and shall be held within ten (10) days prior to the eligible adult's twenty-first birthday. The department must request a discharge hearing where the court shall determine whether the department has made active efforts to help the eligible adult effectuate each element in the transition plan. If the court finds that the department has not made active efforts and that termination of jurisdiction would be harmful to the eligible adult, the court may continue to exercise its jurisdiction for a period not to exceed one (1) year from the eligible adult's twenty-first birthday or the eligible adult's discharge from the fostering connections program, provided that the eligible adult consents to the continued jurisdiction of the court. The court may dismiss for good cause at any time after the eligible adult's twenty-first birthday or the eligible adult's discharge from the fostering connections program.
(2)Discharge hearing based on ineligibility . When the department seeks to discharge a participant from the fostering connections program, the department shall file a motion to discharge based on ineligibility. The court shall hold a hearing and discharge the participant if
(a) the department provided a clear, developmentally appropriate, and written notice informing the participant of the department's intent to terminate the voluntary services and support agreement and explaining the basis for the proposed termination;
(b) the department made active efforts to meet in person with the parti cipant to explain the information in the written termination notice and to assist the participant to reestablish eligibility if the participant so wishes; and
(c) the participant no longer meets the eligibility criteria in Section 32A-26-3 NMSA 1978.

N.M. R. Child. Ct. 10-802

Provisionally adopted by Supreme Court Order No. 21-8300-007, effective 11/12/2021; provisionally adopted rule approved by Supreme Court Order No. 22-8300-017, effective for all cases pending or filed on or after December 31, 2022.

Committee Commentary. - The Fostering Connections Act defines "active efforts" as "a heightened standard that is greater than reasonable efforts that include affirmative, active, thorough and timely efforts." NMSA 1978, § 32A-26-2(A) (2020). "'Transition plan' means a written, individualized plan developed collaboratively between the department and the eligible adult that assesses the eligible adult's strengths and needs, establishes goals and identifies the services and activities that will be provided to the eligible adult to achieve the established goals the time frames for achieving the goals and the individuals or entities responsible for providing the identified services and activities as provided by rule." NMSA 1978, § 32A-26-2(G) (2020).

The best interest finding for the fostering connections program is distinct from the best interest finding in cases arising under the Abuse and Neglect Act. Unlike abuse and neglect cases, in which the court acts as parens patriae, the court in fostering connections cases must determine whether a young person who has voluntarily enrolled in the program would benefit from continued placement and services as he or she transitions to adulthood. Given that transition to adulthood lasts into a young person's mid-twenties and that young people emerging from the foster care system often do not have existing family and other support systems to rely on, continued placement and supports will provide a benefit to almost all young people if not all young people. Finally, the best interest finding does not ask the court to predict the success of the young person in the program; it only asks the court to determine whether the young person may benefit from the program's services and supports.