Carol Garner, Esq., Law Access New Mexico Larry Kronen, Program Director, Kinship Guardianship...

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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

Who’s Here?

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

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.

• 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

•Help with self-representation

•Referrals to other legal services

•No citizenship requirement

• Limited to help over the telephone

• 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

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

• 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

• 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

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

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

• Letters/affidavits are hearsay

• Generally not admissible

• Police reports are hearsay

• Police officers must testify in person

• 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: cgarner@lawaccess.org

• 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

Questions?

Carol Garner, Esq. – cgarner@lawaccess.org

Larry Kronen, Esq. – lkronen@pegasuslaw.org

Liz McGrath, Esq. – evmcgrath@pegasuslaw.org

Erin Olson, Esq. – eolson@nmbar.org

Thank you!

Carol Garner, Esq., Law Access New Mexico Larry Kronen, Program Director, Kinship Guardianship...

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