N.M. ADR 2016-2017 Mediator Manual

Policies and Procedures for Mediating

Child Abuse and Neglect Cases

New Mexico Administrative Office of the Courts

Policies and Procedures for Mediating

Child Abuse and Neglect Cases

2016 - 2017

MEDIATOR MANUAL

NEW MEXICO

CHILDREN’S COURT

MEDIATION PROGRAM

T a b l e o f C o nt e n t s

PURPOSE..................................................................................................................................................... 2

ABOUT THE CHILDREN’S COURT MEDIATION PROGRAM................................................................... 2

CHILDREN’S COURT MEDIATION PROGRAM CONTACTS.................................................................... 3

PROGRAM PROCEDURES......................................................................................................................... 4

REFERRALS, ASSIGNMENTS AND LOGISTICS...................................................................................... 4

MEDIATION PARTICIPANTS...................................................................................................................... 5

CULTURAL COMPETENCY............................................................................................................................ 6

FAMILY PARTICIPANTS................................................................................................................................. 6

CYFD – PROTECTIVE SERVICES DIVISION (PSD)......................................................................................... 7

CYFD - PERMANENCY PLANNING WORKERS (PPW).................................................................................... 7

CYFD - ADOPTION WORKERS..................................................................................................................... 7

GUARDIAN AD LITEM (GAL)......................................................................................................................... 7

COURT APPOINTED SPECIAL ADVOCATES (CASA)....................................................................................... 7

SPECIAL CIRCUMSTANCES........................................................................................................................... 7

CYFD PARTICIPATION ISSUES..................................................................................................................... 8

ATTORNEY ADVOCACY IN MEDIATION........................................................................................................... 9

THE MEDIATION PROCESS....................................................................................................................... 9

CONFIDENTIALITY........................................................................................................................................ 9

PRE-MEDIATION........................................................................................................................................ 10

MEDIATION…………….. ........................................................................................................................... 11

POST-MEDIATION...................................................................................................................................... 13

MEDIATOR TRAINING AND SUPPORT................................................................................................... 13

ADOPTION AND SAFE FAMILIES ACT (ASFA) TIMELINE AND MEDIATION...................................... 14

CHILDREN’S COURT MEDIATION CASE FLOWCHART........................................................................ 13

GLOSSARY OF TERMS............................................................................................................................ 14

LIST OF ACRONYMS................................................................................................................................ 16

CHILDREN’S COURT MEDIATION FORMS AND DOCUMENTS............................................................ 18

PURPOSE

This handbook provides the standards, forms and procedures of the Children’s Court

Mediation Program for its mediators, who provide direct services for interested parties,

including family and professional participants, in child abuse and neglect cases. The

program’s website contains add itional information, including access to the annual

reports. Please visit: http://adr.nmcourts.gov.

ABOUT THE CHILDREN’S COURT MEDIATION PROGRAM

The New Mexico Administrative Office of the Courts (AOC) has collaborated with the

Children, Youth and Families Department (CYFD) to mediate child abuse and neglect

cases since 2000. The Children’s Court Mediation Program offers mediation services in

thirty (30) counties within twelve (12) judicial districts ( 2nd through the 13th), and

provides support for the First Judicial District’s (Rio Arriba, Los Alamos and Santa Fe

Counties) in-house program. The program is funded by state general funds of the AOC

as well as Title IV-B federal grant funds provided by the CYFD.

The Children’s Court Mediation Program is a resource for families, CYFD staff and the

Courts. The program provides a non-adversarial approach to help CYFD and the Courts

to work together with families facing high risk and long-term issues such as substance

abuse, domestic violence and mental illness, to reach permanency solutions for their

children. The primary purpose of the program is to assi st the Adoption and Safe

Families Act (ASFA) goals of permanency, child safety and child well-being by:

 Offering an impartial forum to encourage open dialogue free of courtroom

constraints;

 Clarifying issues, addressing conflict, and improving communication, thereby:

o Conserving CYFD and Judicial time and resources, and

o Improving the understanding of, and satisfaction with, the legal process;

 Engaging participants in collaborative discussion about the treatment plan so that

specific needs are addressed and greater compliance can be achieved; and,

 Exploring and improving options for placement, permanency and services.

Cases are mediated at all legal stages of an abuse and neglect case from the initial

court filing to reunification or termina tion of parental rights (TPR), including post

adoption contact agreements (PACA). A professional mediator works with the parents,

attorneys, CYFD case workers and other interested parties and assists in achieving

agreements regarding placement, visitation, treatment and permanency. Mediation

facilitates enhanced communication and problem solving by clarifying issues, exploring

new options, and providing opportunities for collaboration.

The organizational structure of the program allows for centralized co ordination through

the AOC with local responsiveness to the district courts and CYFD offices. The AOC’s

Statewide Alternative Dispute Resolution (ADR) Coordinator oversees contracted

Regional C oordinators who provide a local presence and work directly with the

mediators to ensure the provision of quality services.

Mediation conserves both judicial and CYFD resources by reducing th e time spent in

preparing for and attending court hearings. For families, mediation can improve the

quality of treatment plans, improve compliance with the plan, and reduce the time

children spend in state custody.

CHILDREN’S COURT MEDIATION PROGRAM CONTACTS

AOC Statewide ADR Coordinator: Elizabeth Jeffreys

505.827.4855 aocejj@nmcourts.gov

Northern Regional Coordinator: Kim Montgomery

505.814-9890 mobilemediators@yahoo.com

SECOND, FOURTH, EIGHTH, TENTH, ELEVENTH

& THIRTEENTH JUDICIAL DISTRICTS

INCLUDES THE COUNTIES OF: BERNALILLO, MORA, SAN MIGUEL,

GUADALUPE, TAOS, COLFAX, UNION, HARDING, QUAY, DE BACA, SAN JUAN,

MCKINLEY, CIBOLA, SANDOVAL & VALENCIA

Southern Regional Coordinator: Nancy Garcia Tafoya

575.571.9724 ngtafoya6@gmail.com

THIRD, FIFTH, SIXTH, SEVENTH, NINTH

& TWELFTH JUDICIAL DISTRICTS

INCLUDES THE COUNTIES OF: DONA ANA, CHAVES, EDDY, LEA, GRANT,

HIDALGO, LUNA, CATRON, SOCORRO, TORRANCE, SIERRA, CURRY,

ROOSEVELT, LINCOLN & OTERO

FIRST JUDICIAL DISTRICT (SANTA FE, LOS ALAMOS & RIO ARRIBA COUNTIES):

Contact: Gary Lombardo ~ 505.455.8231 ~ sfedgtl@nmcourts.gov

PROGRAM PROCEDURES

Statewide continuity is maintained, in part, through standard procedures and forms.

Local Implementation Team s ensure that the local needs are addressed and may

decide on more specific program protocols, including the logistics of scheduling and the

location(s) for the mediations. The Implementation Teams (IT) are comprised of judges,

respondent’s attorneys, guardian s ad litem (GAL), youth attorn eys, CYFD staff and

attorneys, court appointed special advocates (CASA), and other interested parties.

REFERRALS, ASSIGNMENTS AND LOGISTICS

At any time after filing the case, the CYFD or court may refer a case to mediation. The

regional coordinator will review the case for appropriateness and budget availability.

Some cases will be denied mediation services because of insuffic ient budget or

because the case is not appropriate for mediation. If all parties agree to mediation and

the case is accepted, the regional coordinator can request, and the children’s c ourt

attorney (CCA) can prepare and file a “Stipul ated Order for Mediat ion.” The c ourt may

also issue an “Order for Mediation” at any stage during a legal case.

Assignment of Case to Mediation

All child abuse and neglect cases, from custody (i.e., child is removed from the home)

and legal filing of the case to reunification (i.e., child is returned home) or the

termination of parental rights, as well as open adoption negotiations, may be assigned

to mediation as follows:

 Legal Stage Cases – Mediation may occur at any time during the legal process

by a request or referral to the regional coordinator, or through a court order.

 Open Adoption Negotiations – Mediation for post adoption contact agreements

are considered by request to the regional coordinator and may require a

stipulated order filed with the court.

Mediations should be initiated and concluded within 60 days of the referral unless all

parties agree to an extension of time.

Mediator Pool and Selection

[Forms: Case Referral Intake]

The regional coordinator maintains and provides a list of qualified me diators to the

members of each Implementation Team. Mediators are assigned to cases at the

discretion of the regional coordinator. Mediators receive a Case Referral Intake form

that includes the date and time of mediation, the names of the parties expect ed to

attend, and the stage of the case at which the mediation is occurring (e.g. pre -

adjudicatory, pre-permanency, termination, etc.). Mediators should not serve any case

or participant where there is an actual, potential or perceived conflict of interes t.

Mediators who identify a personal conflict of interest, or finds circumstances that may

compromise his/her neutrality, must immediately inform the regional coordinator.

Location

Mediations typically take place either at the local judicial dis trict courthouse or CYFD

office. Sessions may be scheduled at another location with the agreement of all parties.

Notification of Participants

[Forms: Case Referral Intake]

Generally, the court mails signed copies of the “Order for Mediation ” to all parties

entitled to notice including, respondents’ attorneys, GALs, youth attorneys, permanency

planning worker, CCA, CASA, Citizen’s Review Board (CRB), and the regional

coordinator. Mediators review the Case Referral Intake form and contact all participants

to c onfirm the day, time and location; identify issues (e.g., plea, treatment plan,

placement, visitation, change of plan, termination, open adoption); gather information

that may affect the process (e.g., time constraints, teleconferencing, transportation,

need for interpreter(s), security concerns, mental health or cognitive concerns); and

answer any questions the parties may have about mediation. Contact will all parties

should be made within 3 business days after the referral is received. Mediators are

responsible for checking with CYFD or the courts about any special arrangements

necessary to accommodate the participants.

Compensated Service Time Limit

Each family may receive a maximum of five (5) hours of mediation services in legal

stage cases for time-limited reunification (TLR), and a maximum of ten (10) hours of

mediation services in open adoption (OA) stage cases to negotiate a post-adoption

contact agreement. Regional Coordinators may grant addition time for unusual

circumstances, including for mediations that require translators or other special

accommodations, and cases that involve the Indian Child Welfare Act (ICWA).

Determinations will be made on a case-by-case basis. Mediators are not compensated

for service time above the maximum hours absent the determination of an exception by

the Regional Coordinator.

Invoice Errors

Strict accountability is required for the public funds supporting this program.

Accordingly, compensation may be delayed and denied for inaccurate or incomplete

invoice packets. To ensure prompt payment, please attend to the details required on

the invoice, and be sure to enclose any supporting documents, including prior approvals

for overnights and for exceeding service time limits. The Regional Coordinators and

AOC will make every effort to carefully review the submissions. Rejected invoice

packets will be returned to you with instruction for corrective action and a new original

signature. Payment cannot be issued unless the invoice is complete and accurate.

MEDIATION PARTICIPANTS

Parties in an abuse and neglect case typically include the accused parent (s) and the

CYFD. While the parties to the court case are necessary participants of the mediation,

other family members and professionals are also included. Additional participants may

be included if ordered by the court or if agreed upon by the parties. Welcome and treat

all participants with respect, regardless of th eir condition or circumstances, and prepare

for any special circumstances they may present.

Cultural Competency

Individuals carry different values, beliefs, assumptions, and expectations depending on

their own backgrounds. Culture, in a broad sense, is shaped by several elements,

among them: language, religion, gender and orientation, family, physical ability and

limitations, race and origin, health and socio-economic status. Mediators are better able

to navigate the confli cts and misunderstandings between parties when they recognize

and appreciate the cultural differences that may complicate the dispute. Recognize that

everyone has something of value to contribute. Know that your own background may

limit your awareness of, and appreciation for, the diverse experiences of others, so

foster openness within and be patient with others. Above all, a ppreciate that the

dynamic tension between cultures can create an opportunity for learning, growth and

creativity which may permanently change the perspective of those involved.

Family Participants

Family participants may include the respondent parent(s), guardians, foster parent(s),

prospective adoptive parents, children, adult relatives such as grandparent(s), aunts

and uncles, and sometimes tribal members.

Guardian

A person having the duty and authority to make important decisions in matters

having a permanent effect on the life and development of a child and to be

concerned about the child's general welfare.

Prospective Adoptive Parents (PAP) or Family

In open adoption cases, t he family identified by CYFD to adopt or take legal

guardianship of a child or children.

“Fictive Kin”

A term sometimes used to describe individuals that are not relatives, but have an

emotionally significant relationship with the individual or family.

Custodian

A custodian is a person, other than a parent or guardian, who exercises physical

control, care or custody of the child, including an employee of a residential facility

or a person providing out-of-home care.

Professional Participants

Professional participants may include the Respondents’ Attorneys, Children’s Court

Attorney, Guardian ad Litem (GAL), Youth Attorney(s), Permanency Planning Worker

(PPW), CYFD Supervisor, , and Court Appointed Special Advocate (CASA).

Respondent Attorney (RA)

Legal counsel for the parent(s). The Children's Code requires that the court

appoint counsel for the parent or parents "at the inception of the proceeding,"

which means as soon as the petition alleging abuse or neglect is filed. Appointed

counsel serves until the custody hearing, at which time the court makes an

indigence determination and appoints counsel for parents in financial need.

Children’s Court Attorney (CCA)

Legal counsel for CYFD at every stage of the abuse or neglect proceeding, from

the initial determination regarding whether to file a petition through dismissal.

CYFD – Protective Services Division (PSD)

PSD is the division within CYFD that responds to and investigates child abuse

and neglect allegations and provides initial services to stabilize a family.

CYFD - Permanency Planning Workers (PPW)

The CYFD case workers who work with families once their children are under

legal custody of the state.

CYFD - Adoption Workers

In Open Adoption cases, these are CYFD case workers who match children with

adoptive families. Typically, they are assigned after TPR or relinquishment.

However, they may not be assigned before the child is identified as available for

adoption.

Guardian Ad Litem (GAL)

An attorney appointed by the children's court to represent and protect the best

interests of the child in a court proceeding. A GAL represents the child in an

abuse and neglect case from its inception to its conclusion.

Court Appointed Special Advocates (CASA)

Court appointed volunteers who receive special training assist the court in

determining the best i nterests of the child by investigating the case and

submitting a report to the court.

Special Circumstances

In order to prepare, it is best to be aware of the special circumstances that can impact

the mediation process. Although many of the circumstances occur as the result of the

participating family members, the participating professionals can also create challenges.

Security

The mediator is responsible for arranging for security, if indicated, at the

designated court or CYFD location. The Regional Co ordinator may be contacted

to assist in making the arrangement. Security is indicated for participants with a

history of violence, and may be indicated for some participants with behavioral

health issues (active substance abuse, psychotic episodes, etc.).

Interpreters

The mediator is not responsible for obtaining an interpreter. The r espondent

attorney should request an interpreter (even for last minute mediation). For

Open Adoption negotiations that occur after the termination of parental rights, the

interpreter may be requested by the respondent attorney, if they are still involved

in the case, or by CYFD.

Incarceration

Family members may be participating by prison phone or arriving in shackles

with a guard. Restrictions re lated to their incarceration are likely to impact the

mediation process. Phone access may be limited to certain times of day and

length of time, and the phone may be suddenly disconnected. The phone

connection may also be poor, so other participants will need to be on-time and

attentive. The attorney for the incarcerated party is responsible for arranging for

the party to be transported to mediation. Communicate with the guard about

whether the offering of food and beverages is a concern, and whether the guard

can sit in a location slightly removed from the participant table.

Urinalysis (UA) Testing

There may be attempts to test the urine of respondents during the course of the

mediation, since they are easily found at that time. Testing is court ordered, and

may occur randomly (not scheduled) by a mobile unit. Mediators should firmly

resist any outside disruption of the session and direct the unit to wait until after

the mediation session.

Children/Youth Participation

Younger people may participate in mediation. Children are represented by either

a GAL (for children under age 14) or a Youth Attorney. Typically, younger

children will participate only when the Guardian ad Litem (GAL), who is assigned

by the court to represent the child’s best interest, decides it is appropriate.

Mediators should consult with the GAL or Youth Attorney regarding concerns

about a child’s participation.

Indian Child Welfare Act (ICWA)

When native children are at issue in a case, federal law provisions may apply. In

addition, tribal members may be included in the mediation, and special

consideration should be given to the child’s connection to the tribe, cultural

consideration, placement efforts, and jurisdiction. Contact the regional

coordinator to assist in these cases.

CYFD Participation Issues

Engaged Participation. Mediation is not a simple reading of a list. Some CYFD

workers will simply read the Treatment Plan to the family, and not recog nize the

opportunity to listen to the family members and to communicate the “whys” of

CYFD’s involvement. Families may be confused about why CYFD is involved in

their lives, what issues were identified, why the Treatment Plan includes certain

elements, what is required for the custody of child(ren) to be returned, what will

happen in each stage of the case, and how long things will take. CYFD may not

be aware of real or perceived barriers, such as transportation difficulties, that the

family may face in c omplying with the Treatment Plan. Where attorneys are

restricted in the legal process, mediation offers an unusual opportunity for the

CCA to talk and listen to the family, instead of just to their attorney, and that

interaction can offer dynamic insights.

Family Centered Meetings (FCM) [formally “Team Decision-Making” (TDM)]

Mediation is not a Family Centered Meeting. Some CYFD workers may not

understand the difference between mediation and FCMs. FCMs involve all

parties concerned about a child's welfare in order to develop a plan for that child.

Most plans must be approved by a judge if the case has been adjudicated. In

some cases, the conference takes place before any court action and prevents

court involvement while providing services to the f amily. Critically, FCMs are led

by a CYFD employee who acts as a facilitator, not a third-party neutral mediator.

Attorney Advocacy in Mediation

Mediation is not litigation. Attorneys can play a supportive role in the mediation

process by encouraging their client(s) to express thoughts and feelings, empower

them to negotiate on their own behalf, advise them about when taking a break

may be wise, help their client to recognize the benefi t of sharing and learning

during the process, reality test contemplated solutions (is it a ‘workable’

solution?), assist them to generate option s and to example consequences, and

help to draft terms of an agreement. Unfortunately, most attorneys are not

trained to be supportive in this way. They are trained to be adversarial and

fiercely protective of their client’s interests and rights and to focus on “facts” and

law. As a result, they may not realize tha t this approach in mediation may serve

to disempower and undermine their client(s). During pre-mediation discussions,

mediators can stress the importance of empowering clients to speak up and to

actively engage in discussions; instead of speaking for, or on behalf of their

client(s), as they might in court.

THE MEDIATION PROCESS

The mediation process is structured to provide a reliable process for constructive

communication and consensus-building. Mediators may use a variety of techniques to

assist the parties in clarifying issues and achieving agreement about topics such as

placement, visitation, treatment plans, and permanency. No case is exactly the same,

so mediators are able to adapt to the needs of the participants in order to help them to

identify the areas of agreement and the next steps for moving forward.

The mediation process generally has three stages: pre-mediation, mediation and post-mediation. Each stage may have a different focus and strategy for consensus-building,

as described below. Not all of the strategies are utilized in every case, and they are not

necessarily used in a prescribed or linear fashion.

Confidentiality

[Forms: Agreement to Mediate, Order for Mediation]

All mediation sessions are conducted pursuant to either a court order or a signed

Agreement to Mediate form. Orders for Mediation and Agreements to Mediate typically

state that mediation sessions are private and confidential, except as provided by law.

Confidentiality requires that no one disclose the information shared in the context of

mediation, and that the information may not be offered as evidence in court. However,

when new information (i.e. information that is not alre ady known by the appropriate

authorities) arises in a mediation regarding physical, emotional and/or sexual injury

and/or neglect to a child, or imminent harm to an adult, a disclosure of that information

may be required by law. Mediators may discuss conc erns regarding the content of

mediation sessions only with the ir mentor, regional coordinator or the Statewide ADR

Coordinator.

Pre-Mediation

This stage i ncludes preparation activities that the mediator engages in prior to

convening the participants toget her, regardless of the need to bifurcate. NOTE: Before

communicating with parents or children directly, the mediator must always obtain

permission from their legal counsel.

Logistics management

If there is not a set place and time, the mediator is resp onsible for working with

the parties to schedule the session(s). If the mediation time is set by court order,

the mediator will typically contact the parties once or twice to remind them of the

place and time: first when the mediation is assigned, and then a second time one

or two days before the mediation.

Education about the mediation process

Mediation is often new to the parents, so the mediator should take time to explain

the mediation process, the mediator’s role, confidentiality, expectations,

willingness to participate, goals f or identifying areas of agreement and next

steps. If the professional participants (attorneys, CYFD) are new to the process,

the mediator should educate them as well.

Early issue identification

The mediator speaks with all parties in the days before the mediation, or on the

day of, to identify topics for discussion and issues that could affect the design of

the mediation process. Topics that a mediator might want to know about in

advance might include a plea agreement, discussion of placement of a child, or

certain proposed services for parents or children. Issues that could affect the

design of the mediation might include substance abuse, mental health issues,

domestic violence, need for interpreters, inability of the parties to communicate in

the same room, Indian Child Welfare Act (ICWA) applicability, transport of a

participant from jail or prison, or the participation of a child or teenager.

Mediation screening

In some cases, the mediator may find a case to be inappropriate for mediation in

that moment. This is unlikely to occur wit h a court-ordered mediation, and is

somewhat more common in mediations referred by CYFD. When this occurs, the

mediator communicates with the regional coordinator and the necessary parties

to close the case file.

Other pre-mediation benefits

Pre-mediation may serve as an opportunity for parties to release emotions about

the case, the children, or the other parties in advance of the mediation session;

expressing these emotions in advance often allows the session to be more

productive.

Mediation

[Forms: Agreement to Mediate, Report of Mediation]

This stage includes activities that the mediator undertakes during the time the

participants convene and engage in mutual discussion. Most mediations are scheduled

for one to two hours, although cases that involve permanency or open adoption may

last longer or inclu de multiple meetings. Consider that it may be appropriate to involve

some participants (children, service providers, etc.) for only part of the mediation.

Setting the tone of the room

The mediator is responsible for creating a setting that encourages con structive

communication. Setting the tone is important, and includes how the mediator

welcomes the parties to create a friendly and productive environment. Most

mediators set the table with tissues, water, a small snack, and a phone for

conference calls if necessary. The mediator is responsible for respecting the

space and returning the room to its previous arrangement after the mediation.

Mediator’s opening statement [Forms: Agreement to Mediate, Report of Mediation]

The mediator makes an opening state ment to convene the mediation. Most

mediators review their role and the role of mediation. Other topics may include

confidentiality, the voluntary nature of mediation, and any logistical matters. The

mediator reviews and distributes the Agreement to Med iate or Report of

Mediation (for court-ordered mediations) at this time.

Introductions

In most cases, it is useful to have everyone at the table introduce themselves

with their name and role, even if the parties have met at previous hearings or

meetings.

Creation of an agenda

In most cases, the parties have the opportunity to create the agenda and add any

items that they wish to discuss during the mediation. The agend a will differ for

each mediation. Agenda items may include:

 Whether the complaint of abuse or neglect should be dismissed

 Plea

 Status of the children (e.g., safety, behavior, education, medical issues,

psychological issues)

 Services for the children (e.g., counseling, medical services, mentoring)

 Services for parents (e.g., counseling, drug or alcohol assessment and

treatment, parenting classes, employment and housing referrals, financial

assistance, transportation)

 Temporary and permanent placement of the children

 Visitation by parents, siblings, and other relatives, and arrangements for

supervision and transportation

 Goals for the children (e.g., reunification, adoption, independence)

 Progress being made under the plan

 Change of plan (e.g., from reunification to adoption)

 Guardianship

 Post-adoption contact between birth parents and prospective adoptive

parents

Discussion of the issues

In the discussion of the issues, mediators may use all of the mediation

techniques in their toolkit to find the areas of agreement and try to break any

stalemates. Issues may be intertwined and do not separate easily into a step-by-

step discussion. Mediators may play a valuable role re ality-testing certain ideas

and confirming the parties create an agreement that will work for everyone in the

future.

Drafting an agreement

The mediator is often responsible for helping to draft the written statement of the

parties’ areas of agreement. The draft should be concise and readable, and

reflect the participant’s words. The mediator may reframe to use positive neutral

terms instead of hurtful language. The mediator should ensure that everyone

clearly understands the areas of agreement, how th e agreement will be signed

(either at the mediation or after review by legal counsel), and how a written

agreement is likely to be legally binding and not confidential. In some mediation

settings (e.g., Second Judicial District pre-adjudicatory hearing me diations),

written agreements are uncommon, and the mediator will help outline the

agreement via a verbal summary.

Legal-stage cases. If an agreement is reached during mediation, the mediator

may assist parties with drafting any written agreement for review by all parties.

The mediator is generally responsible for securing signatures on the agreement

and on the Report of Mediation form, which is filed with the court by the CCA.

The court may more easily enforce an agreement if that is also filed.

PACA’s. If the birth and prospective parents reach an agreement on post -

adoption contact, someone must be designated to draft the terms. T hat person

is also responsible for writing the final agreement. The med iator should keep a

draft and provide a copy to CYFD. The mediator may distribute the draft to all

parties and their attorneys for review. The mediator should get signatures to

finalize the agreement. The finalized agreement must be filed in the court (by the

GAL or other professional) with the final adoption decree. The PPW or adoption

worker will place a copy of the PACA in the case file. The adoption worker

should provide a copy of this agreement to the Placement Social Worker, so the

Placement Social Worker can place a copy in the adoptive family’s file.

No agreement

[Forms: No Agreement Letter]

If there is no agreement reached, the mediator will distribute a No Agreement

Letter, and close the mediation case.

Post-mediation

[Forms: Family Participant Feedback, Mediation Case Record, Invoice]

In most cases, the mediator’s work with the participants is complete at the close of the

mediation. In some instances, however, the mediator may distribute a draft agreement

to the parti es, or may serve as a conduit for signatures on a finalized agreement. In

rare cases, a second meeting may be necessary. Family participants are asked to

complete Family Participant Feedback forms at the end of the mediation. The mediator

must complete a Mediation Case Record form for each mediation referral and include it

with the completed feedback forms and the mediation Invoice within 15 days of the

completion of the mediation.

Modification of agreements

The signing parties may collectively agree to modify the agreement at any time.

Any amendment should be written, signed and dated, and may be filed with the

court for later enforcement. If the CCMP mediation case is closed the parties

may, at their own expense, utilize a private mediator or attorney to assist.

Enforcement of agreements

Agreements, whether oral or written, may be enforced by the court. Written

agreements that are signed by the parties and filed with the court are the easiest

to enforce. Agreements that are signed by attorneys o n behalf of their clients

may also be enforced.

MEDIATOR TRAINING AND SUPPORT

Continuing Education Requirements

Mediation is a highly specialized and professionally demanding service that requires

mediators to continually improve their skills and enhance their knowledge. The

continuing education requirement is to complete 12 hours of related coursework per

contract year ( July through June). The credit hours must be in the areas of child

welfare, domestic relations, domestic violence, behavioral h ealth, conflict and

communication, or advanced mediation skills. Mediators are strongly encouraged to

obtain continuing education credits beyond the minimum requirement in any area that

supports their personal and professional goals. Up to six additional continuing

education credits earned in one year may be applied to the requirements of the next

contract (or fiscal) year. The AOC requires the submission of the certificate of

completion and a course description of the topics covered and hours of instruc tion. If a

certificate of completion is not issued, a signed attestation may be submitted to verify

the hours and coursework attended. Report earned continuing education hours on the

Mediator Continuing Education – Standard Reporting Form, and submit to AOC by May

1 of each year. Failure to complete the continuing education requirements may result in

the loss of consideration for a contract in the next fiscal year.

Mentoring and Co-Mediation

Mediators are supported in many ways, including through mentoring and co-mediation

sessions. Co-mediations offer opportunities for learning through peer-review,

networking and collaboration. Mentoring may be used when mediators work in a new

county or ju dicial district, for mediators rec ently contracted by the program, or at the

regional coordinator’s suggestion. Mediators must comply with the mentoring process,

and will have a choice of mentors to support a positive experience. In addition, there

are mandatory mediator meetings a few tim es a year to provide updates as well as

ongoing informal opportunities for peer mentoring and support.

Insurance

The program requires that mediators carry independent mediator liability cover age

insurance that includes family mediation. Professional liability coverage can be obtained

through a membership with various professional associations including: the Association

for Conflict Resolution (ACR) www.acrnet.org; the Association for Family & Conciliation

Courts (AFCC) www.afccnet.org; the American Bar Association (ABA)

www.americanbar.org and www.mediate.com; or by directly contacting the insurance

underwriters, such as Complete Equity Markets, Inc. at 800-323-6234 or

www.cemins.com, or Pinkham Agency at www.pinkhamagency.com/. Proof of

insurance coverage must be submitted to the AOC at the start of each contract year.

IRS Reporting

[IRS Form 1099]

Mediators of the Children’s Court Mediation Program are independent contractor s for

the Administrative Off ice of the Courts (AOC). At the end of each year, the AOC will

issue a Form 1099 to both the mediator and the Internal Revenue Service (IRS). Form

1099 reflects the amount of money the AOC has paid the mediator over the tax year. If

the mediator makes less than $600, a Form 1099 may not be issued.

ADOPTION AND SAFE FAMILIES ACT (ASFA) TIMELINE AND MEDIATION

ASFA is a federal law passed to improve the safety and wellbeing of children, to

promote permanency (long term stability) for children, and to support families. It

requires that permanency hearings occur within 12 months of initial placement, sets

deadlines for the filing of TPR petitions, and establishes the right of foster and adoptive

parents to receive notice of, and appear in, juvenile and f amily court proceedings.

Mediators need to be aware of the ASFA timeline and how mediation is affected by

each stage of the court case.

Custody Hearing (a/k/a “10-day Hearing”)

The hearing following the filing of the petition to determine whether there i s probable

cause to believe that interim custody of the child by CYFD is necessary to protect the

child's health and safety. The court must consider whether reasonable effort s were

made to prevent removal. No determination or remedy can be ordered other than

removal of the child from the dangerous condition. If probable cause is not found,

custody is returned to the parents pending adjudication and evaluation.

On rare occasions, the court may return the child(ren) to live with the family while the

state retains legal custody and is responsible for the safety of the children. The family

will still have to work a treatment plan and be accountable to the state. Not all districts

use mediation at this poin t, in the larger districts (2nd, 3rd and 13th) it is very effective as

the sooner you can get the family engaged the better.

Pre-Adjudicatory Meeting (a/k/a “Treatment Planning Conference”)

This is a legally required, mandatory meeting scheduled prior to the adjudicatory

hearing to attempt to settle issues and develop a proposed treatment plan to serve the

child's best interest. At this stage, mediation replaces (meets the legal requirement of)

the Pre-Adjudicatory conference.

In some districts, mainly the 2nd, families can take a plea immediately after the

mediation and waive the adjudicatory hearing. It is the mediator’s job to let the hearing

office know as soon as possible if that will happen so that a Judge or Hearing officer is

available to take the plea. This is beneficial to all of the parties as it frees up the docket

and families can get started on their treatment plans sooner.

Adjudicatory Hearing

This hearing must be initiated w ithin 60 days of service of the petition. This is a trial at

which the petitioner (CYFD) must prove by clear and convincing evidence that the child

is abused or neglected, as defined by statute. It is a full evidentiary hearing complete

with all of the due process protections. Findings made at this hearing determine

whether the state continues to intervene in the life of the family.

Dispositional Hearing

In this hearing the court adopts the treatment plan, establish es legal custody of the

child(ren), sets visitation arrangements if appropriate, and determines findings of fact as

required by statute. This hearing may be held in conjunction with the adjudicatory

hearing or within 30 days thereafter.

Initial Judicial Review (IJR)

The initial judicial review hearing must be held within 60 days of the disposition,

regardless of whether the dispositional hearing was held in conjunction with the

adjudicatory hearing, or at some time thereafter. Federal law requires states to review a

child's case at least every six months after placement in foster care to determine

whether the placement is still necessary and appropriate, the treatment plan is properly

and adequately followed, and if progress has been made toward reunifying the family.

Case review also sets a target date for the child's return home, adoption, or other

permanent placement.

Occasionally a Judge will order mediation at this stage so the parties can look at what is

working or what is not and decide on a plan to move forward.

Pre-Permanency Hearing Meeting

The parties are required to attend a meeting before the initial permanency hearing to

attempt to settle issues. Mediation is rarely requested to replace this meeting.

Permanency Hearing

The purpose of permanency hearings in general is to compel a resolution of the case so

the child does not remain indefinitely "in the system." The court conducts a permanency

hearing to determine what permanency plan is in the child's best interest.

Mediation is most often ordered at this hearing, in an effort to have the parties review

the status of the case and decide on a plan to move forward.

Termination of Parental Rights (TPR)

A judicial proceeding where parental rights are permanently terminated. A judge may

determine that a parent has failed to substantially comply with the treatment plan in the

time allotted by law.

At this time if a prospective adopting family has been identified then CYFD may request

an Open Adoption Mediation. Mediation can occur before or after the TPR hearing.

IMPORTANT NOTE: T he OA mediation is not contingent on relinquishment and the

purpose of mediation is not to discuss relinquishment. It is only to explore open

adoption as an option for the families moving forward, not to pressure the biological or

potential adoptive parent(s). Know that CYFD does provides relinquishment counseling.

CHILDREN’S COURT MEDIATION CASE FLOWCHART

MEDIATION

May include individual meetings and joint sessions, as appropriate.

Parties sign an Agreement to Mediate. Mediator distributes Report of

Mediation form (for legal cases), to be filed by the CCA.

POST ADOPTION CONTACT MEDIATION - 3 STEP PROCESS

1. Establishing the Framework. Mediator meets with all interested parties to review guiding principles of open

adoption, establish framework for how to proceed and to clarify issues, including who is responsible for writing

the final PACA. Parties sign an Agreement to Mediate. Mediator distributes the Report of Mediation.

2. Drafting Contact Terms. Mediator meets with birth and adoptive families only to discuss and identify contact

terms and conditions. Mediator distributes draft PACA to all parties for review. Mediator should retain a copy of

the draft PACA.

3. Finalizing the Agreement. Adoption Attorney or other designated attorney drafts final agreement and

circulates to all parties and attorneys. Follow-up mediation sessions may be scheduled to resolve outstanding

issues. Mediator may reconvene parties to finalize PACA.

REFERRAL

Court/CYFD/Other Parties

NOTIFICATION

Regional Program Coordinator or Case Manager receives referral/court order and assigns mediator.

CASE DEVELOPMENT

Mediator reviews Case Referral Intake; contacts PPW, attorneys, GAL, etc., regarding background, history, issues, con cerns, etc., and confirms logistics.

PRE-MEDIATION

Mediator meets with parties (in person or by telephone) to discuss mediation process, confidentiality, expectations, concerns, and willingness to participate.

AGREEMENT

Agreement is drafted,

reviewed, signed and

distributed by CCA or

mediator.

NO AGREEMENT

No Agreement Letter

distributed by the

mediator.

AGREEMENT

Final PACA is signed by birth and adoptive parents to

be filed with Court by the Adoption Attorney or other

designated attorney. A copy is also placed in CYFD

case file.

NO AGREEMENT

No Agreement Letter is

distributed by the

mediator.

CASE CLOSURE

Mediator distributes Feedback Forms; completes and submits Case Record and Invoice to Regional coordinator/Case Manager.

INFORMAL AGREEMENT

Terms agreed upon and

enforced by the parties.

2011-2012 Children’s Court Mediator Handbook

GLOSSARY OF TERMS

The following is glossary of terms. It is not meant to be an exhaustive list, but serves as

a quick reference for mediators who w ork with the child welfare system. The definitions

are intended to be understandable by individuals outside of or new to the child welfare

system and include legal/court terms common in child abuse and neglect cases.

Aging Out

Aging out refers to when a youth leaves foster care because they have reached a

certain age (typically 18) without obtaining permanence through returning home,

adoption or guardianship or kinship care.

Children’s Code

The Children's Code is a set of statutory state laws intended t o protect the safety and

welfare of children. The law creates a range of possible state actions when abuse or

neglect is suspected or confirmed, from emergency intervention to permanent

placement of the child outside the home. Part of the Children's Code, the Abuse and

Neglect Act (§32A-4-1, et. seq., NMSA ) authorizes the state to act in these cases

through CYFD.

Continuance

When a court hearing is not completed, it can be "continued" to another date. For

example, this may occur when someone whose presence is needed does not come to

court, or when the judge does not have sufficient information to act on the case.

Concurrent Planning

A process that allows CYFD to work on two or more permanency plans at the same

time. For example, while primarily foc using on reunifying a child with her parents, the

team may also begin to consider and plan for adoption or guardianship if reunification is

not successful within desired and/or legally required time frames.

Emancipation

Emancipation is the legal process by which a minor child petitions the court to allow him

to become an adult in the eyes of the law before his/her 18th birthday.

Family in Need of Court Ordered Services (FINCOS)

Child(ren) may be returned to the family with the understanding that the fami ly has

needs to address (ex. poverty, child care, etc.), and the state will retain custody or

responsibility for the safety of the children until the needs are addressed through court

ordered intervention.

Final Adoption Decree

The document signed and filed with the Court and the State of New Mexico that legally

transfers parental rights to adoptive parents, per the Adoption Act, §32A-5-1, et. seq.

NMSA.

Permanent Guardianship

A judgment of permanent guardianship transfers legal responsibility and legal a uthority

for the child to a third party who has offered to become the child's guardian.

Petition

A case begins with the filing of a petition by the CYFD alleging abuse or neglect. If the

CYFD case worker and supervisor responsible for the investigation of a report decide

that CYFD should seek legal custody of the child, they request the CCA endorse that

filing a petition is in the best interest of the child. If the child is already in CYFD's

emergency custody, the petition and a motion for an ex parte custody order must be

filed within two working days. CYFD also may file a motion for an ex parte custody order

if it believes the child's welfare demands it, even if the child is not already in custody.

Plea

A respondent to an abuse and neglect case may decide to enter admissions either in

the form of a plea or no contest. The pleas as defined by statute include: B1 abuse

(placing at risk of harm); B2 abuse (physical/emotional/psychological); B3 abuse

(sexual); B4 endangering; B5 cruelty; C1 aggravated great bodily harm to child; C2

aggravated great bodily harm to parent; C3 aggravated abuse; C4 prior TPR; E1

abandonment; E2 inability to parent; E3 failing to protect from abuse; E4 inability to care

for; and E5 unlawful placement. The plea is often an issue for mediations occurring

before adjudication.

Relinquishment

A judicial proceeding where a parent surrenders parental rights voluntarily.

Reunification

Return of a child to the family from which the child was removed. Most often,

reunification involves the child's birth family, but in cases where a child was removed

from an adoptive family or other legal guardian, reunification can also occur.

Treatment Plan

The plan developed by the CYFD with the parents and youth (if appropriate), and their

legal advocates, that outlines the types of services that the child and the family will

receive, such as parenting classes, mental health or substance abuse treatment, and

family counseling; reunification goals, includ ing visitation schedules and a target date

for a child's return home. The agency agrees to provide the services and the parents

must agree to work on their assigned tasks. Plans typically include requirements

parents must meet before their children can re turn to them. The court reviews and may

modify the recommended treatment plan.

Visitation/Family Time

Time with the family while the state retains custody, usually a schedule of visits. May

be supervised or unsupervised.

LIST OF ACRONYMS

ADR Alternative Dispute Resolution

AOC Administrative Office of the Courts [Judicial Branch]

ASFA Adoption and Safe Families Act

CASA Court Appointed Special Advocates

CEU Continuing Education Unit (1 hour = 1 credit)

CCA Children’s Court Attorney (represents CYFD)

CCMP Children’s Court Mediation Program

CYFD Children, Youth, and Families Department [Executive Branch]

GAL Guardian Ad Litem

ICWA Indian Child Welfare Act

IJR Initial Judicial Review

OA Open Adoption

PACA Post Adoption Contact Agreements

PAP Prospective Adoptive Parents

PPW Permanency Planning Worker (CYFD)

PSD Protective Services Division (CYFD)

RA Respondent Attorney (represents parents)

TLR Time Limited Reunification

TPR Termination of Parental Rights

[binding.law: PDF page 23 withheld — its text layer does not read as words]

CHILDREN’S COURT MEDIATION FORMS AND DOCUMENTS

 CASE REFERRAL INTAKE SHEET

 MEDIATOR CHECKLISTS

 PROGRAM PROCEDURES & FLOWCHART FOR MEDIATING PACAS

 COURT IMPROVEMENT PROJECT BEST PRACTICES FOR MEDIATING PACAS

 FRAMEWORK FOR PACA MEDIATIONS

 SCREENING QUESTIONS FOR OPEN ADOPTION REFERRALS

 MEDIATION CONFIRMATION NOTICE

 PARENT PREP QUESTIONS (English & Spanish)

 AGREEMENT TO MEDIATE

 REPORT OF MEDIATION FORM & INSTRUCTIONS

 MEDIATION AGREEMENT

 POST ADOPTION CONTACT AGREEMENT

 NO AGREEMENT LETTER

 FAMILY FEEDBACK FORMS (English & Spanish)

 MEDIATION CASE RECORD

 INVOICE

 ORDERS FOR MEDIATION

o ORDER FOR MEDIATION

o STIPULATED ORDER FOR MEDIATION

 MEDIATOR ASSESSMENT FORM (For use during mediator observations.)

 MEDIATOR CONTINUING EDUCATION – STANDARD REPORTING FORM

 CHILDREN’S CODE AND ASFA TIMELINES

 MODEL STANDARDS OF CONDUCT FOR MEDIATORS