How We Live and Parent

Child Piercings and Tats Bad But not Bad Enough

noreply@blogger.com (Pilar Vaile, Esq.) — Wed, 24 Apr 2013 02:42:00 +0000

Earlier this year the Court of Appeals upheld a lower court's determination that a non-parent contributed to the delinquency of a minor by helping a precocious 15 year old get a tongue piercing without the consent of a parent or legal guardian consent. See State v. Harla Webb, 2013-NMCA-027. At the same time, however, the Court reversed Webb's conviction for child abuse by endangerment because there was no evidence that the non-parent's "conduct created a substantial and foreseeable risk to [Child] of which" Webb should have been aware.

The non-parent, Webb, had taken the child along with her own children to a tattoo studio in Ruidoso, New Mexico. Child told non-parent that she had her own parent's consent, and child had money for the piercing. The non-parent signed a parental Release Form that stated "A person may not perform a piercing on a minor without the consent of the minor's parent or legal guardian, and an establishment may not perform a piercing on a minor under the age of 18 unless the minor is accompanied by an adult. I authorize the piercing described to be performed on my child."

Webb testified that she believed child had parental consent since she had the money for the piercing. She also testified that she signed the Release Form and "didn't think it was that big of a deal." The tattoo studio owner testified the he would not have pierced the child had he known Webb was not related to the child.

Ultimately, we know something went wrong, or there would not have been a legal case about it. Due to an unknown penicillin allergy, Child fainted after the piercing, causing her to knock out one tooth and damage several others. Thereafter, Child required three root canals and four sets of temporary teeth, and still needs additional treatment.

However, the Court reasoned that "it is not the endangerment and not the resulting injury that constitutes the offense," but rather an actual or imputed foreseeability of danger directed toward the child[]." Here, as the tattoo studio testified, the only foreseeable risk was due to infection, not allergy to penicillin.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Constitutional Right to Safety & Medical Care

noreply@blogger.com (Pilar Vaile, Esq.) — Tue, 23 Apr 2013 16:44:00 +0000

In a development cheered by all GALs, the Ninth Circuit has concluded that children in state custody for abuse/neglect have a constitutional right to safety and adequate medical care. Henry A., et al v. Willden, Ninth Cir. Case No. 10-17680 (May 4, 2012). The case concerned a foster care reform suit brought by the National Center for Youth Law (NCYL) against Clark County (Las Vegas), Nevada, which showcased the myriad of horrific injuries sustained with the child welfare system breaks down.

Specific allegations included: "the failure to provide caseworkers with even basic training; the failure to provide foster children and their foster parents with case plans and medical records; the failure to provide foster children with the necessary medical care; the failure to provide foster children with guardians ad litem; the failure to investigate reports of abuse and neglect in foster homes; the failure of Clark County to incorporate state and federal requirements into its child welfare policies; and the failure of the State to ensure that Clark County is operating its foster care system in compliance with federal law."

Some representative plaintiffs included Henry A, who was put in ICU after being given dangerous drug combinations when his medical records were not transferred through his endless changes in medical provider; Jonathan D., who had an impacted colon and could not get medical treatment approved until he endured months of pain and his condition became life threatening; Olivia G., whose foster parent did not have authorization to fill her psychiatric prescriptions, forcing painful withdrawal; and many other children for whom the County had information of physical and/or sexual abuse but did not investigate or protect.

The Court's 34-page decision upheld plaintiff's claims that foster children have a "clearly established due process right to adequate safety and medical care" and that the District Court was "plainly wrong" when it concluded that the County and state and county officials were entitled to qualified immunity.

The Ninth Circuit outlined basic, black letter substantive due process law: that generally the 14th Amendment "does not confer any affirmative right to governmental aid" or "duty ... to protect;" but that a "special relationship exception" arises where "a custodial relationship exists between the plaintiff and the State;" and the "state-created danger exception" exists when "the state affirmatively places the plaintiff in danger by acting with deliberate indifference to a 'known and obvious danger[.]" Reviewing the facts of the case, the Court had no trouble concluding that both exceptions apply in the abuse/neglect foster context.

In regards to the special relationship exception and dismissal of Counts One and Eleven for qualified immunity, the Court noted qualified immunity only applies to claims for money damages against State and Federal officials. Accordingly, the Court concluded the district court's dismissal was "plainly wrong" as to the damages claims against Clark County, and the claims for injuncitve relief. As for the claims for money damages against individual defendants, the Court concluded the officials' conduct (or lack thereof) "violated clearly established law." Although the "very action[s] in question" had not "previously been held unlawful" as the lower court noted, it has been clearly established since 1996 that the State owes a duty to persons in custody, including children in foster care, and that the duty of care includes the right to basic human needs such as food, clothing, shelter, medical care and reasonable safety. Additionally, it was established at the time that foster children have a right to social worker supervision and protection from harm inflicted by a foster parent. Thus, the Court concluded "a reasonable official would have understood that at least some of the specific conduct allged by Plaintiffs violated those rights."

In regards to the state-created danger exception, the lower court had dismissed Count Two for failure to state a claim or, in the alternative, qualified immunity. Citing a dissent opinion, the lower court reasoned that the defendants merely "place[d] foster children into an already broken system" and that complaint did not allege Defendants "did more than simply expose the plaintiff to a danger than already existed." The Ninth Circuit rejected this reasoning as contrary to Ninth Circuit law, noting case law on this exception regularly deals with dangers that already exist and that is not the point. The point is that the State's affirmative actions "creat[ed] or expos[ed] an individual to a danger which he or she would not have otherwise faced." (Citations omitted, emphasis added by Ninth Cir.)

Finally, the Court held the Plaintiffs may seek to enforce through § 1983: the case plan and records provisions of the Child Welfare Act (CWA) (Counts Eight and Three, respectively). These met the Blessing test for whether a federal statue creates an individual right: that Congress intended the provision to benefit the plaintiff; that the right is not too "vague and amorphous;" and that right is couched in mandatory rather than precatory terms. Nor was the resultant presumption of enforceability rebutted by a conflict with another comprehensive enforcement scheme.

(The Court agreed with the lower court that the guardian ad litem provision of the Child Abuse Prevention and Treatment Act (CAPTA) (Count Nine), and the early intervention services provisions of CAPTA (Count Ten), did not meet the Blessing test, and the early intervention services provisions of Individuals with Disabilities Education Act (IDEA) (Count Ten) were precluded by the IDEA's comprehensive enforcement scheme.)

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

New Idea: "Fathering Court"

noreply@blogger.com (Pilar Vaile, Esq.) — Fri, 15 Mar 2013 19:05:00 +0000

As a domestic relations mediator and GAL, I appreciate what a complex area of law domestic relations is--parenthood is difficult, co-parenting is difficult, and some parents have special barriers to being good parents.

Judge Milton C. Lee Jr. of the District of Columbia Superior Court recently wrote int the ABA Judge's Journal about the Fathering Court Initiative, over which he presides. It's an exciting new idea in which a "problem-solving approach" is taken child support, and the focus is

changed from simply transferring "the most money possible from the noncustodial parent to the custodial parent" to instead looking at how to maximize the "noncustodial parent's ability to provide meaningful monetary support."

In Judge Lee's view, to work such an initiative "must include useful employment opportunities;" promote co-parenting; provide case management services; focus on reentry concerns for noncustodial parents recently released from prison; provide job skill training and placement.

In the D.C. program, the focus is on the reentry population, and child support calculation is initially reduced to 25% of the presumptive amount during the first 90 days of the program, then 50% for the next 90-day period, "and so forth until graduation from the program. This structured payment schedule permits fathers to obtain employment upon return to the community without the burdens of very substantial child support orders," and "permits father to get accustomed to" monthly "budgetary balancing."

Judge Lee notes in many ways the biggest obstacle is the reaction or low expectations of the custodial parent. However, he believes most of the noncustodial parents "were ashamed of their behavior and wanted to do better but simply did not grasp the significance of parental obligation. They wanted to be good fathers but needed help learning how to become responsible fathers." Each participant completes a "Quenching the Father Thirst" curriculum, developed by the National Center on Fathering to "help men understand the significance of being a father.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Attachment--A Hot but Frequently Misunderstood Concept

noreply@blogger.com (Pilar Vaile, Esq.) — Tue, 26 Feb 2013 04:59:00 +0000

As a domestic relations mediator and Guardian ad Litem, I frequently see parties and attorneys bandying about the concepts of "attachment" and "attachment disorder" for greater leverage in the dispute, and "[t]he concept of attachment can readily tip the scales in custody and parenting-time cases involving infants and young children." See Pamela S. Ludolph & Mildred D. Dale, Attachment in Child Custody: An Additive Factor, Not a Determinative One, Family Law Quarterly, Vol. 46, No. 1, Spring 2012. However, as Ludolph & Dale detail, "attachment is often incompletely understood in both the legal and mental health communities."

In the most general terms, attachment theory describes "the propensity of human beings to make strong affectional bonds to particular others." See John Bowlby, The making and Breaking of Affectional Bonds 151 (1979-/1989). "In particular, the theory holds that young children attach to their parents, usually their mothers, and that their later functioning can be explained by the quality of this attachment." See Ludolph & Dale.

As Ludolph & Dale point out, "[a]ttachment theory appeals as a an intuitive, almost romantic theory;" but they warn that "some of the[] ideas arise more from intuition than from science." In particular, while attachment theory has important insight to offer, "it is far from empirically strong enough" by itself to be "determinitive" of parenting plans.

Attachment theory was first published by John Bowlby in 1969, based on his observations dating from the the 1940s. His most prominent student, Mary Ainsworth, added to his work with her "Strange Situation" procedure, which seeks to measure the security of a child's attachment by observing their responses to strange situations. Later researchers theorized "disorganized attachments."

Due to the times, Bowlby's and his students focused on the role of mothers to the exclusion of fathers, who were "posited to be a much more secondary attachment figure, in the same category as regular babysitters and grandparents." Mothers, in contrast, were seen as as a "'secure base' from which the child could draw affective sustenance and begin to move out to explore the world." The first three years were viewed as a critical time to form a strong attachment, and during this time separation from the mother was believed to be "as pscyhologically devastating to infants as life-threatening diseases."

In my view, this has been a captivating theory because it fits with our intuition about sex roles and our historical family organization, but not necessarily accurate. Clearly, however, it is strongly believed by some psychologists, who then teach attachment theories to lawyers, judges and mediators. I remember well a psychologist speaker at a domestic relations mediation terrifying myself and other students that we had permanent damaged infants and toddler by permitting the negotiation of parenting plans that afforded fathers over night visits during the first three or four years of a child's life. And I remember this caused me--and presumably others--considerable psychic discord, because the fathers we mediators generally deal with love their children and simply deal with being denied overnight visitation for the first three or fours years of their children's' lives.

Thankfully, however, challenges to the use of attachment theory are increasing today. Researchers have identified a number of flaws in the empirical data related to attachment. First, the findings of prior research by Bowlby and his followers was not scientifically robust, but rather subjective and anecdotal. "[T]here was little pattern to the findings of many isolated studies, and many were not replicated." Moreover, a number of longitudinal studies have tested attachment theory, using the Strange Situation or other mechanisms, and found it wanting.

The Minnesota Study of Risk and adaption from Birth to Adulthood demonstrates that "[e]arly disturbances in attachment security ... show[] variable outcomes, with cumulative measures of care and negative life events more strongly predicting adult psychiatric disturbances."    Two other twenty year studies found that although divorce had a "significant impact on attachment security during adolescence" the children came to terms with divorce by adulthood "such that it was no longer a major factor for many." A third longitudinal study found other factors besides divorce were also likely to increase the likelihood of a change in attachment status, such as loss of a parent, life-threatening illness of a parent, a parent's mental disorder, and abuse by a family member. These and other researchers now urge "other potential moderators of attachment status be considered," in particular "inborn characteristics" such as temperament, personality traits and early childhood experiences. (See Hamilton; Waters, Merrick et al; Waters, Weinfield &Hamilton; and Belsky & Pluess.) These new critics seek a "more flexible view, stressing the resilience of the child and the multiple paths to psychological health, even when an infant demonstrated early difficulties."

A second and related problem with the use of attachment theory in divorce is the empirical weakness of attachment measures--"[i]f the measures are questionable, then so is the research." For instance, the strange situation measure can have skewed results with children of divorcing parents because the parents are likely to be "shaky attachment figures" during divorce because they are "preoccupied, angry, and worried ... although not necessarily for very long." Additionally, researchers have found that the strange situation is not a good measure for attachment in fathers, because of the unique play-orientation of a father's attachment with his children, in contrast to the "nurturing" nature of a mother's attachment.

A final problem with use of attachment theory in divorce is its gender bias. Later research has confirmed what Bowlby himself began to suspect in his latter years and the last volume of his research: that there is no inherent reason a child cannot form a co-equal and contemporaneous attachment to the father as to the mother. As Ludolph & Dale write, "[e]mpirical studies, beginning as early as the 1960s, have consistently confirmed that infants are attached to their fathers in ways that are similar to their attachments to their mothers and that the father-child relationships can be as important as mother-child relationships in determining the future functioning of their children. Late in life [by 1988], even Bowlby came to include fathers in his secure base concept."

Moreover, more recent research "fails to confirm Bowlby's earlier notion of hierarchical or primary attachment." This research shows that in their first year, infants "form distinct attachments to both their mothers and their fathers, despite having three or four times more interaction with their mothers[;] ... toddlers protest separation from both their mothers and their fathers[; and] ... [b]y the second year, boys often developed a distinct preference for their fathers" and "girls showed no distinct preference for either parent."

As already intimated, it appears children's attachment and preference shifts as they develop, and that they look to each parent for unique attachment or security needs. For instance, in early toddlerhood, "many children prefer their mothers for confort, while often preferring their fathers for play." For all these reasons, the authors encourage "a more ecological view" represented by the "Cooperative Parenting Model," rather than an exclusive focus on attachment relationships. The Cooperative Parent Model "understands all child development as occurring withing the context of a restructuring" and "potentially ... binuclear family," with attachment representing "only a small frame of the child's life" and being subject to developmental variations.

So what does all this have to do with parenting plans? As I mentioned earlier, old views suggested that fathers could not safely have overnight time with their infants and toddlers. However, consistent with the Cooperative Parent Model and the limitations of attachment theory discussed, research shows "there are no compelling empirical or theoretical reasons to believe that overnight parenting time in itself will create difficulties for a young child who has experienced a meaningful relationship with with the noncustodial parent before the parental separation."

For this reason, I submit that courts and legal and mental health professionals need to abandon dated and rigid ideas of attachment and overnight visits. However, Ludolph and Dale still recognize some value in the use of attachment theory, when not relied on in isolation. "First, early attachment status can be a measure of the warmth and supportiveness of the early relationship between parent and child," which is in turn informative for establishing a parenting plan. Second, "[a]ttachment status does seem to have a robust concontemporaneous and short-term association" with ... a child's social and emotional adjustment." For instance, children with secure attachments in infancy will manage their anger better and be better at navigating "complex emotions" as toddlers. (However, these results cannot be traced reliably into later years except in the case of severely disorganized attachment disorders as a result of extensive abuse or neglect. And, oddly, extensive neglect appears to have worse affects than extensive abuse, such as the disorganized attachment seen in institutionally raised children.)

Accordingly, Ludolph & Dale submit that attachment theory can be informative in assessing other factors that DO properly go into making a health and successful parenting plan:
- the parent's relationship history with the child;
- the child's relationship history with each parent and others;
- the parent's future commitment to rearing the child, including specific plans for supporting this commitment;
- the level of family violence and abuse; and
- the nature of the coparenting relationship

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

DNA Testing & Abatement of Child Support

noreply@blogger.com (Pilar Vaile, Esq.) — Thu, 31 Jan 2013 20:12:00 +0000

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I occasionally meet men confronting the question of whether they can or should seek belated DNA testing to either challenge, or avoid a child support order. As a mediator I can only provide legal information (if competent to do so), not legal advice, so I cannot answer that question directly. However, I often encourage the parent to think of this as not just a legal question, but a personal and moral one

as well. For instance, I suggest he consider what impact such testing could have on him and the child, particularly if there is an existing relationship.

What I usually don't say is that being on the birth certificate; prior admissions of paternity, such as in a Custody and/or Divorce agreement; or having held yourself out as the parent, can result in a presumption of paternity in New Mexico that is difficult to overcome. The New Mexico Court of Appeals, however, has recently issued an interesting decision on this question.

In Human Services Dept. v. Rawls, 2012-NMCA-052 (cert. not applied for), Rawls had a default judgment of paternity entered against him, and thereafter he stipulated to a report and decision concerning child support arrears that adjudicated him the Parent. He stipulated to this report and decision for the purpose of getting his drivers license reinstated. However, he later confirmed by DNA testing that he was not the child's father and sought to have the earlier default judgment and stipulation set aside by Rule 1-060(B)(6).

The Court held "the determination that Rawls is not the child's biological father after his admission early on that he was Child's father is an extraordinary circumstance under Rule 1-060(B)(6). Accordingly, the Court set aside the default judgment and the stipulated order, and "related [him' form his obligation to pay prospective child support." The Court further held that "Rawls should not be burdened with the obligation to pay any accrued child support."

It is difficult to know from reading the decision, however, whether this holding would apply in any situation in which paternity is disproved by DNA. The Court emphasized several times that "[b]asic notions of fairness and justice strongly suggest that Rawls should not be compelled to pay ... child support," but qualified this was so where "he is unerringly determined not to be the biological father ... and found to have had no personal relationsip with the child." The Court also stressed its decision here "was supported by Child's mother's apparent misrepresentation to HSD that Rawls was the father and her later admission in court that another named mas was the biological father." Additionally, it emphasized although the mother had been deported the Child was being cared for by the maternal grandmother.

Thus, it would be unwise to rush forward assuming that any disproof of paternity by DNA could be used to unwind prior adjudications of paternity and child support. It appears the Court will instead make a case-by-case analysis, looking in part to whether there is an existing relationship and whether there is other support out there for the child.

If you are interested in child-related mediation, advisory consultation, or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

What Do You Tell Your Kids About Divorce?

noreply@blogger.com (Pilar Vaile, Esq.) — Fri, 11 Jan 2013 18:37:00 +0000

As a domestic relations mediator, I see my clients struggle with how and when to tell their kids about their upcoming divorce. I've recently come across a helpful article on the subject by Sol R. Rappaport, Ph.D., a Licensed Clinical Psychologist, in the Summer issue of the ABA's Family Advocate. Id., Telling Your Children About the Divorce. Here's some of his excellent comments and suggestions.

First, Dr. Rappaport notes that "telling your children about your divorce is one of the most emotionally challenging and difficult things you will ever do ... [T]he manner in which parents tell their children about the divorce will set the stage for how the children perceive and interpret everything that will happen over the coning months and years relative to the divorce. This day will forever alter your children's lives. So think carefully about how and what you will tell them and plan it out. You are setting the stage for how your children cope with your divorce."

Next, Dr. Rappaport makes a number of specific recommendations as to timing, content, and the manner of telling:

- you should be in a calm state, and hopefully both parents will do this together

- you want to wait until you have information on what the kids can expect to happen next, because they will surely ask lots of questions

- the kids' age and developmental understanding may impact timing

- kids don't "need to know until a change in their lives is imminent"

- don't tell them right away just because you are having difficulty keeping it to yourself--"children don't need to know the truth about everything"

- "think about what your goal is in talking with your children"--is it to "tell your child the whole truth or is it to help your child cope with the coming divorce and foster the best possible relationship with both parents?"

- notwithstanding the arguments in favor of delaying telling them, you want to make sure your children hear about the divorce from you, not from other family members

- the goal will be "to help your chidren understand that your are geting divorced" but "that you both love them and always will, that the divorce is not their fault, and that they can ask questions about what is happening"

- notwithstanding that last piece, remember that 'letting them ask questions doesn't mean telling them the unbridled truth about everything (e.g., marital infidelity)"

- if the Court directs you to undergo a custody evaluation, explain that ya'll are "having a hard time deciding which days/nights you should be with each of us"

Although discouraging "too much information," Dr. Rappaport does believe this is conversation that must be had. He notes that "[i]n one study , 23% of seven- to seventeen-year-olds said that no one had talked to them about their parents' divorce. Of those that were spoken to, only 17% ... were told by their parents together, and 45% of them reported learning very little, such as "daddy is leaving." Only 5% felt that they were fully informed and could ask questions." He adds, "[y]ou want your children to be in this 5%."

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Right to Gay Wedding Photography Protected by HRA

noreply@blogger.com (Pilar Vaile, Esq.) — Tue, 01 Jan 2013 02:35:00 +0000

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I am keenly interested in legal cases of first impression involving family and home issues. In a case involving the intersection of competing personal rights, the New Mexico Court of Appeals recently concluded that a professional wedding photographer's refusal--on personal and religious grounds--to photograph a same-sex commitment ceremony constitutes a violation of NMSA 1978, Section 28-1-7(F) (2004) of the New Mexico Human Rights Act" (NMHRA or HRA). See Elane Photography, LLC v. Willock, 2012-NMCA-086, cert. granted. Aug. 16, 2012, No. 33,687.

Willock first filed a discrimination claim against Elane Photography with the Human Rights
Commission. The Commission concluded that Elane Photography is a "public accommodation" under the HRA, and that Elane discriminated against Willock based on Willock's sexual orientation. The Commission ordered Elane Photography to pay Willock $6,637.94 in attorney fees; Willock did no seek monetary damages. Elane Photography appealed to District Court, which granted Willock summary judgment, and Elane Photography then appealed to the Court of Appeals.

Elane Photography argues that the Commission's interpretation of the HRA violated (1) Elane Photography's federal and state constitutional rights to freedom of expression, (2) Elane Photography's federal and state constitutional rights to the free exercise of religious, and (3) Elane Photography's rights under the NM Religious Freedom Restoration Act, NMSA 28-22-1 et seq. Elane Photography also argues that it is not a public accommodation, and that it did not make any distinction based on sexual orientation in refusing its services to Willock.

Addressing the statutory arguments first, the Court of Appeals rejected Elane Photography's arguments that "public accommodation," 28-11-2(H), involves either "essential services" or excludes "any business that includes a creative, expressive, or artistic component." The Court noted:

"Today, services, facilities, and accommodations are available to the general public through a variety of resources. Elane Photography takes advantage of these available resources to market to the public at large and invite them to solicit services offered by its photography business ... It does not participate in selective advertising ..., nor does it in any way seek to target a select group of people for its internet advertisements ... We conclude that Elane Photography is a public business and a commercial enterprise [and] ... constitutes a public accommodation under the NMHRA." As such, it "cannot discriminate against any class protected by the NMHRA."

As to the alleged discrimination, Elane Photography argued that "it did not decline photography services to Willock because of her sexual orientation," but rather because "company policy and its owners' sincerely held religious and moral beliefs prohibit photographing images that convey the message that marriage can be defined other than the union of one man and one woman." The Court rejected this argument, pointing out that it impermissibly distinguishes between protected status and conduct inherently associated with that class.

The Court then addresses and dismissed each of Elane Photography's constitutional and other statutory claims:
(a) Wedding photography, although expressive, is not intended to express any particular message from Elane Photography itself, and the NMHRA as a neutral regulation of commercial conduct, "does not infringe upon freedom of speech or compel unwanted expression."
(b) This application of the HRA does infringe on Elane Photography's religious beliefs, only its commercial conduct, and there is no showing of a religious belief that requires it to engage in this particular business. Moreover, Elane Photography is free to tell Willock what they think about same-sex relations and same-sex ceremonies--it just "may not discriminate in its commercial activities against protected classes at the basis for expressing its religious opinion."
(c) The New Mexico Religious Freedom Restoration Act is inapplicable as a matter of law to this case because its scope is limited "to cases in which a 'government agency' has restricted a person's free exercise of religious," which the Court implicitly concludes does not mean the Court itself in enforcing the HRA in this case.

If you are interested in domestic relations mediation, or mediation for any dispute regarding matters of "heart and home," please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Kinship Guardianship Revisited

noreply@blogger.com (Pilar Vaile, Esq.) — Sun, 23 Dec 2012 23:31:00 +0000

In my capacity as a domestic relations mediator and GAL, I have previously written about a rather convoluted Kinship Guardianship case, Freedom C. v. Julie Ann D., 2011-NMCA-040, in which the New Mexico Court of Appeals concluded that both parents must meet the grounds of § 40-10B-8(B) relied upon. In that case, only Mom had consented to the Kinship Guardianship, and the child had resided only without Dad for the 90-day period. See § 40-10B-8(B)(1) and (3). However, the Supreme Court has recently reversed the Court of Appeals, concluding that "the Legislature intended that both parents need to satisfy at least one of the three conditions, regardless of whether they satisfy the same condition." See In re Patrick D., NM Sup. Ct. No. 32,944 (May 30, 2012).

In its decision, the Court of Appeals had been palpably concerned with the rights of the ousted parent, Dad. It noted "serious consequences" and "equity issues" of terminating or restricting one parent's rights based on the other parent's consent, and permitting one parent to "utilize the Act to unfairly engage in in-the-home, continual, and personal parenting of the child to the exclusion of the other parent." See Ct. of App. ¶ 20.

The Supreme Court's decision, in contrast, emphasizes the Legislative policies and purposes of the Kinship Guardianship Act: to provide a child with a "stable and consistent relationship with a kinship caregiver" when "neither parent is able or willing" to adequately care for the child; and to also permit the parents to "maintain or rebuild their relationship with the child when doing so would be in the child's best interests." See Sup. Ct. ¶ 15. The Court also opened up the possibility that § 40-10B-8(B)(2) might also apply, if the District Court's previous award of sole custody to the Grandparents had involved a termination of either Parent's rights. Id. ¶ 26.

The Supreme Court noted a number of irregularities or inadequacies in the trial court proceedings: it "did not make a finding that Mother and Father were unfit" prior to the initial ward of custody to Grandparents, or "specify that 'extraordinary circumstances justified the change in legal and physical custody;" and "the record is not clear whether the district court was suspending all of the rights of the parents by granting sole legal and physical custody to Grandparents," such as to bring (B)(2) to bear. Id. ¶¶ 25-26. Nonetheless, after noting "the procedure employed by the district court was unusual," the Supreme Court concluded "the court acted in a manner consistent with the spirit and intent of the Act." Id. ¶ 27.

As to the argument related to an end run around the statute to the benefit Mom and detriment of Dad, the Court observes that once both parents have been declared unfit [although it previously noted the Court did not make that finding], "the court's duty is to act in the Child's best interests. Therefore, the extent to which the custody arrangement incidentally benefits one biological parent more than the other is irrelevant[.]" It also denies that the District Court's decision lead to an "unfair[]" result, as the Court of Appeals concluded.

Because the original order called for a review of the necessity of guardianship in 24 months, which had expired several months before the date of the Supreme Court decision, the Supreme Court remanded it back to the District Court for that purpose. It also advised the District Court to "enter appropriate findings and specify under what authority the court is ruling" this time around.

All in all, a rather curiously reasoned decision. Some parts do make sense, such as the general principal that best interests must supersede once unfitness has been found. However, as with some other decisions I've previously blogged about, this seems results oriented. Specifically, it seems dismissive of some pretty flagrant missteps below, all of which are blithely swept away under the "best interest" and "spirit of the act" mantles, in apparent disregard of the Court's conclusion that unfitness had not been found.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Internet Child Porn, Second-hand Viewers, and Victim Restitution

noreply@blogger.com (Pilar Vaile, Esq.) — Tue, 27 Nov 2012 15:37:00 +0000

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children. In the September 2012 ABA Journal, Lorelei Laird details the plight of several young women in their 20s who were sexually abused as small children by predators who then put pornographic images of the abuse on the Internet for others to access and enjoy. Laird poses the question of "should those who download child pornography pay the victims and, if so, how much?"

Several girls discussed have been identified as victims by the government under the Crime Victims' Rights Act, so must receive notice when anyone is arrested by federal authorities for possession their child pornographic images. At least one of the girls had, through extensive therapy, managed to move forward in a positive direction, until she learned the images had been placed on the Internet. Today, she has suffered serious backsliding into depression and addiction, as she is faced with mounds of daily DOJ notices that people are accessing the images of her "agonizing abuse."

The girls discussed are or have been represented by attorney James Marsh of New York City. What the girls want--removal of these pictures from the Internet--obviously cannot be provided. However, Marsh seeks full restitution under the Violence Against Women Act (VAWA), to obtain funds for treatment of the ongoing trauma that results from their continued exploitation and abuse via Internet viewings. VAWA mandates restitution for "the full amount of the victim's losses," including "costs" such as medical bills, attorney fees and lost income, and "any other losses suffered by the victim as a proximate result of the offense."

Lair reports that Marsh also seeks the full amount owed, from every defendant against whom he files suit. VAWA permits joint and several liability among defendants in the same case, but is silent as to this situation.

Marsh has apparently had mixed results. The 5th Circuit court of Appeals ruled in 2011 (in re Amy Unknown) that the proximate cause limitation only applies to the catchall losses, not actual costs such as medical bills and attorneys fees. The 1st, 2nd, 3rd, 9th, 11th, and D.C. Circuits, in contrast, have all found the proximate cause requirement does apply to the actual costs. However, in applying the proximate cause standards, the courts have sometimes found proximate cause existed under the facts or, expressly left the door open for such a finding in future cases.

As to the joint and several liability issue, the courts are struggling how to "divide the pain" and costs between defendants. Although Marsh files for full restitution, the courts are tending to "develop[] a flat-rate scheme[.]" The Eastern District of California has awarded $3,000 per victim, while the Western District of Washington has awarded $1,00 per image (which aw later reduced to zero by the 9 Circuit). Since Laird wrote her article in September, the Fifth Circuit ruled that "Amy" was entitled to restitution from both a Texas resident and a New Orleans resident, each of whom had pleaded guilty in separate cases. See AP, "Court OKs Restitution for Child Porn Victims," reprinted in Albuquerque Journal, Oct. 2, 2012.

One defense lawyer is quoted to decry the unfairness that a person innocently viewing child porn, who does not himself abuse or photograph the children, should be subject to restitution. Other critics, while not disputing "that child pornography victims have suffered real harm[,] ..raise a mix of practical, philosophical and legal concerns about holding defendants responsible for harm to victims they've never met." Can't say my heart goes out to them. In any event, in today's cyberspace era we will need to figure out a way to hold defendants responsible for harms they cause via modern communication networks, even if to victims they've never met--think identify theft, cyberfraud, and the miscellaneous actors/cogs in the global human trafficking maze.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Recent Foreclosure Consent Decree

noreply@blogger.com (Pilar Vaile, Esq.) — Tue, 23 Oct 2012 20:43:00 +0000

As a foreclosure mediator in New Mexico, I like to report on news/cases in this special area and the big news right now is the Consent Decree/Judgment entered on April 4, 2012 against 5 financial defendants:

- Bank of America

- Citigroup

- JP Morgan Chase

- Ally Financial/GMAC, and

- Wells Fargo

The Consent Decree derived from investigations concerning the "robo-signing" of foreclosure
affidavits (meaning their signing outside of the presence of a notary public, and without personal knowledge of the facts so sworn), as well as allegations of various mortgage servicing improprieties. Such suits were filed by the US Department of Justice, the Federal Trade Commission, and 49 state attorneys general and banking regulators (including New Mexico). Although it is with these 5 defendants, it also binds their agents, such as attorneys, or sub-Servicers like Country Wide for Bank of America.

The settlement provides two types of relief or remedy:

(1) monetary relief to Homeowners whose loans are owned by the named defendant as well as some Borrowers whose loans they service, provided the note holder or loan servicer is not a "government sponsored enterprise" (GSE) such as Fannie Mae, Freddie Mac, HUD, etc.; and

(2) creation of servicing standards that apply to all loans that the defendant bank services, whether they are the holder of the note or just servicing it for another financial institution, and whether or not they are GSE loans or not.

Sounds nice, right? But what will it do for foreclosure mediation participants? Well, that's difficult to say at this point. So far I have only had one mediation involving one of these five defendants. The Homeowner in that case was able to receive a frankly amazing reduction in principle and interest as a "DOJ modification." The Homeowners' payment was reduced more than 50%, which was obviously welcome, but there are some caveats.

First, most properties in foreclosure will be a GEL loan so they will not get such a favorable "DOJ modification," although they may nonetheless benefit from the new servicing standards if a defendant bank is involved in any capacity.

Second, in this case it was notable that the payment period was extended quite a bit. It is possible the Homeowner would have preferred to have a payment that was not lowered quite so much in exchange for maintaining the existing loan term. However, the terms of the DOJ modifications or workouts are still established by investors, and not subject to negotiation--as
I’ve discussed elsewhere regarding other loan workouts.

Third, the Settlement will only be in place for three and a half (3.5) years. At this point, as I've previously written, it's estimated that there is as much "shadow inventory" of properties

for which foreclosure is likely, as there are foreclosure properties. Accordingly, the foreclosure crisis itself is likely to far outlast the formal benefits of the Settlement Decree.

Finally, at this point there is limited practical ability for Homeowners to enforce the Consent Decree. The New Mexico Attorney General was a party to the settlement but it has a limited role in enforcement. Although it may bring an action against any defendant bank for a pattern of misconduct, and therefore wants to hear about compliance issues, it cannot intervene in an individual homeowner's case. Moreover, Homeowners could face a high bar in establishing that the Settlement was intended to confer any kind of right they could personally enforce. See Tennessee Court of Appeals agrees: no private right of action under HAMP (noting most courts are not finding a right of private action under HAMP, the Home Affordable act); but see Skov v. U.S. Bank N.A. (--- Cal.Rptr.3d ----, Cal.App. 6 Dist., June 8, 2012) (concluding California laws imposing processing standards does confer a right of private action).

However, I do not mean to minimize the benefits of the Settlement. Monetary benefits in New Mexico include the following:
- up to $85 million for first and second lien reductions and refinancing;
- 4.5 million NM Homeowners who have lost their homes to foreclosure between January 1, 2008 and December 31, 2011 will receive up to $2,000 to homeowners; and
- NM will receive $11.1 million to use for a foreclosure hotline, free legal services for Homeowners, increased housing counseling, community outreach, and development of a settlement facilitation pilot project.

Perhaps the greatest benefits, however, will arise from the new servicing standards. As noted, these standards will apply to all loans that the defendant bank services, whether they are the holder of the note or just servicing it for another financial institution, and whether or not they are GSE loans or not. Additionally, although the term of the Settlement will only be for 3.5 years, that may be sufficient time to cause an shift in industry standards. Here are some of the highlights.

Leading up to and right before foreclosure is filed, the Servicers are required to take proactive steps to promote loss mitigation. Before foreclosure referral, loan Servicers shall notify Borrowers of all loss mitigation options, and evaluate Borrowers for all available loan modifications; additionally, they shall no longer instruct Borrowers to default in order to qualify for loss mitigation relief (IV.H.8). Before filing for foreclosure, Servicers shall reach out to Borrowers who are delinquent and explain their loss mitigation options (IV.D.1), and shall cease all collection efforts if Borrower is making timely payments under a trial loan modification or has submitted a complete application (IV.D.4). Then, within 5 days after a referral to foreclosure, the Servicer shall send a written communication that informs the Borrower that the Borrower can still pursue a loan modification and how to do so.

Once a Borrower elects to pursue loss mitigation, the Servicer is generally prohibited from pursuing a "dual track" of foreclosure alongside loss mitigation. If the Borrower submits a complete loan modification application before 120 days of delinquency, the Servicer must not refer the loan to foreclosure until it has completed its review of the loan mod application. If the Borrower submits a complete loan mod application after the loan is referred to foreclosure AND within 30 days of the Post Referral Foreclosure Solicitation Letter going out, the Servicer cannot move for foreclosure judgement or proceed with foreclosure sale, pending review of the loan modification application. If a complete loan mod is submitted more than 30 days after the Post Referral letter, the Service must postpone any foreclosure sale pending review. If a complete loan modification application is submitted within 15 days before a scheduled foreclosure sale, the Servicer may review it but nothing is postponed during the review. However, the Servicer shall not move to judgment or sale if the Borrower is in compliance with the terms of a trial loan mod, forebearance or repayment plan, or if a short sale or deed-in lieu has been approved.

During the loss mitigation process, there are a number of obligations. Loan Servicers shall make make public all requirements for a propriety loan modification. They shall also identify for Homeowners a single point of contact (SPOC), his or her specific duties, and one or more direct means of communication with the SPOC (IV.C.1-2). The SPOC will have primary responsibility for communicating loss mitigation options to the Borrower, coordinating receipt of Borrower documents, being knowledgeable about Borrower's situation and status in loss mitigation, and ensuring that the Borrower is considered for all possible loss mitigation options (IV.C.3).

Servicers are also required to maintain adequate staffing, and to maintain adequate staffing and caseloads and minimum experience for SPOCs (IV.H.1-2).

If a Homeowner is denied loan modification, that denial shall be subject to an indepedent in house evaluation by the Servicer. Additionally, the Servicer must send a written denial notice identifying the reason for denial and the information considered. If modification is denied by an investor, the Servicer must disclose the name of the investor. If modification is denied based on the result of a Net Present Value (NPV) calculation, the Servicer shall provide the monthly gross income and property value used in the calculation.

After denial, the Borrower shall have 30 days to request an appeal, during which he or she can contest property valuation and request a full appraisal if denial was based on a NPV calculation.

The Settlement also imposes tight timelines on the loan modification and disclosure processes:

- 14 days prior to referral to foreclosure attorney, the Servicer must send notice to the Borrower of the facts supporting the right to foreclose including an account summary;

- Servicer must acknowledge receipt of a modification application within 3 business days;

- Servicer must send a "missing items letter" within 5 business days;

- Borrower then has 30 days to send in missing items;

- Servicer must send a denial letter within 10 days of denial;

- as noted, Borrower has 30 days to appeal denial; and

- and Servicer generally cannot proceed with sale until 15 days after the appeal is denied or 14 days after modification is offers as a result of appeal and rejected or not accepted.

There are also a number of provisions geared to prevent robo-signing in the future. Moreover, "[i]n pending cases in which such affidavits ... may have been filed, Servicer shall, at Servicer's expense, take appropriate action, consistent with state and federal law and court procedure, to substitute such affidavits with new affidavits and provide appropriate written notice to the Borrower or Borrower's counsel." (I.A.16.) Similarly, there are provisions devoted to ensuring transparency concerning Servicer's right to foreclose, including making good faith efforts to locate a note lost while in its possession.

This is, of course, only a summary and the Settlement includes many other provisions and protections. If you are interested in mediation services for a foreclosure matter (residential or commercial), please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

What to Bring to Divorce Mediation

noreply@blogger.com (Pilar Vaile, Esq.) — Fri, 19 Oct 2012 12:33:00 +0000

As a domestic relations mediator, I'm often asked "what should I bring to mediation?" The short answer is, "whatever documents you think you need related to custody, child support and/or property division." This is not intended to be flip. However, you know the facts of your own case better than I do--and the level of accord and amicability between yourself and your spouse or partner. Specifically, what do you think he or she will need to see to accept your claims about salary, your debt, etc.?

As a mediator, I don't need or want to see your documents because I am not an arbitrator or fact finder. Accordingly, if the parties do not dispute each others claims no documentation may be needed. However, if you are likely to disagree and squabble over these items, it makes no sense to spend hourly mediation fees to establish readily verifiable things to the other party's satisfaction.

That said, Gregory Kincaid has penned a somewhat helpful article in the ABA's Summer issue of Family Advocate, outlining What to Bring to Your First Mediation Appointment. Id., Vol. 35, No. 1. Although I don't agree with everything he says, its a useful organizing tool. First, a divorce with children will generally involve three or four basic issues:

1. A parenting plan--the allocation of responsibility and time share;

2. child support;

3. division of assets and liabilities; and

4. in some cases, alimony.

In New Mexico, child support will be largely established by statute based on each parent's income and the percentage of time they have custody or time share. Besides wage/earnings, the parties will also address work related day care costs, insurance premiums.

Assets and liabilities will be identified on separate sheets, but ultimately must be considered together since the ultimate division of all property--including assets and debts--must be divided "fairly." Thus, for instance, an uneven distribution of property could be offset by an inversely uneven distribution of debt. Typically, in fact, this is what will occur, since assets and debt rarely divide mathematically equally but instead require a bit of jiggering.

Kincaid recommends bringing budgets, and proof of phone bills, etc. In New Mexico, that is generally not relevant except perhaps in setting up an interim agreement to meet various obligations while a long, drawn out divorce is pending. However, the final Marital Settlement Agreement will generally only address community assets worth over $250, and accrued debts, while the Parenting Plan/Child Support will be based on gross income NOT net income.

This means that many routine, recurring debts will not be relevant. Parties at some point will be faced with the disheartening realization that divorce is expensive--you are often losing one income stream and trading it in for an extra set of household bills. Regrettably, to the extent a party will not be able to pay all of his or her monthly bills and still make child support payments or service debt allocated in the divorce, it will be up to him or her to reduce their monthly bills.

Another point on which I disagree with Kincaid is his belief that "mediators are generally required to advise you to have your own lawyer." A party is always free to be represented by an attorney but, contrary to what many other attorneys say, an attorney is not always necessary. However, a mediator should tell the parties they are free to consult an attorney, and recommend they do so before signing any agreement. Additionally, a mediator may be ethically bound to require the parties to obtain counsel if the mediator feels one party is incompetent or otherwise unable to exercise autonomy in negotiating with the other party.

Ultimately the most important thing to bring to your first mediation--which Kincaid does detail well--are a positive attitude or "your adult self," an open mind, willingness to listen, and ideas you've already though a bit about, concerning about priorities and what you'd like to see happen with you, your children, your family, and your futures. Usually the most important--and time consuming--part of mediation will not be the divvying up of assets, debts or familial responsibilities, but rather envisioning, talking about, and identifying the means of creating your new lives.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Chatterjee: Domestic Partner Custody Rights Revisited

noreply@blogger.com (Pilar Vaile, Esq.) — Wed, 17 Oct 2012 21:29:00 +0000

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children. In an important victory for same-sex parents, the Supreme Court recently reversed the Court of Appeals and held that a domestic partner and non-biological parent had plead sufficient facts to confer standing as a natural parent--and therefore to seek custody--where she alleged she held child out as her own by providing full-time emotional and financial support. Chatterjee v. King, 2012-NMSC-019.

In March of 2011, I wrote about Chatterjee v. King, 2011-NMCA-012, in which a Court of Appeals "majority concluded that Sec 40-4-9.1(K) of the State's domestic relations code limits standing in a custody case to natural and adoptive parents, absent a showing of unfitness of the natural or adoptive parent. As a result, a domestic partner who alleges active, continued involvement in the child’s life and a parent-child bond with the child, but does not demonstrate a prima facie case of unfitness, lacks standing to petition for custody."

Thereafter, the matter was remanded. The District Court appointed a GAL and accepted the GAL's recommendation that contact and visitation with Chatterfjee would be in the child's best interests.

The question on final appeal to the Supreme Court was Chattejee's standing to seek custody. The Court held that a natural mother is an interested party with standing to pursue joint custody. It went on to conclude that the provisions of the Uniform Parentage Act that permit a presumption of fatherhood based on holding a child out as your own, must apply to women as well as to men. Section 40-11-4(A) provides that "the natural mother may be established by proof of her having given birth to the child, or as provided by Section [40-11-21]." Section 40-11-21 provides that "[a]ny interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provision of the [UPA] applicable to the father and child relationship apply."

The Court reasoned that "any interested person" was intended to be applied broadly, to promote the "strong public policy favoring child support." Here, Chatterjee plead holding the child out as her own in keeping with the factors identified in the "hold out provision" for fathers, § 40-11-5(A)(4), by "establish[ing] a personal, financial or custodial relationship with the child." As noted, the UPA requires courts to apply this provision relating to the father to women, when practical to do so.

The Supreme Court rejected the Court of Appeals conclusions that applying § 40-11-5(A)(4) rendered § 40-11-4(A) surplusage, and that the Legislature "created separate sections

for how a woman as opposed to a man can prove natural parenthood, implying that it intended each sex to have different means available for proving parenthood." 2011-NMCA-012, ¶ 12. However, it is "practicable" to apply the "hold out provision" to women, because this has nothing to do with biology. Additionally, the Court of Appeal's interpretation "renders meaningless the clear instruction in Section 40-11-4(A) that a 'natural mother may [also] be established ... as provided by Section 21." 2012-NMSC-019, ¶ 16.

The Court also noted that this decision is consistent with that in other jurisdictions and the strong public policy of providing for child support. Notably, the Court rejected the idea that "natural" and "biological" are synonymous terms as used in the NM UPA.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

DWI with Child is Endangerment--"Plus Factor" Not Required

noreply@blogger.com (Pilar Vaile, Esq.) — Mon, 01 Oct 2012 21:35:00 +0000

Besides being a mediator and arbitrator, an important part of my practice is also serving as GAL for children and other vulnerable folks. In this capacity, I've previously written that under NM law DWI and vehicular endangerment of the general public does not constitute child abuse. Recently the New Mexico Court of Appeals has confirmed that a defendant is "properly convicted of child abuse" by endangerment when he drove a moving vehicle while intoxicated with a child present, even without additional indicia of unsafe driving.

In State v. Orquiz, 2012-NMCA-080 (cert granted), the Defendant was driving his vehicle with his nine-year-old daughter in it and he drove through and intersection and crashed, causing some scratches and a "busted lip" to his daughter. The officer at the scene smelled alcohol, but the Defendant stated the crash was caused by a brake failure. Later, at the hospital where his daughter was treated, Defendant admitted to that officer that he had consumed alcohol earlier that day; he failed field a sobriety test; and tests showed a blood alcohol content (BAC) of between .16 and .17, which is more than double the level permissible under New Mexico law.

Thereafter he was tried and convicted of both DWI and child abuse/endangerment. On appeal he did not challenge the DWI conviction, but contended that "the State failed to present sufficient evidence to support his separate conviction for child abuse by endangerment." Specifically, he argued the endangerment conviction should be reversed absent a provable act of unsafe driving--presumably to refute claim that the crash was due to brake failure.

The Court rejected the argument that some "specific indicia of driving in a perilous manner, or 'plus factor' is necessary." It pointed to a prior case, State v. Chavez, 2009-NMSC-035,

which held that child abuse by endangerment "is a special classification [of offense] designed to address situations where an accused's conduct exposes a child to a significant risk of harm, even though the child does not suffer a physical injury."

Admittedly, Chavez "rejected a literal reading of the endangerment statute that would 'permit prosecution for any conduct, however remote the risk, than may endanger a child's life or health.'" Accordingly, New Mexico case law holds that an endangerment claim could not be based on mere physical control of a non-moving vehicle,* which would only present a "theoretical peril." Here, however, Defendant's conviction was based on actual driving while intoxicated, established by his on-scene admissions, officer observations and the BAC results. His act of driving, moreover, "placed his child inescapably within a moving zone of danger."

The Court recognized that most prior cases of DWI/child endangerment involved "circumstances which bore additional indicia of unsafe driving, or other 'plus factors' that arose as the apparent consequence of the driver's impairment." However, none of these cases concluded a plus factor is necessary, and from a policy perspective it should not be necessary.

"DWI is a strict liability offense, which does not require any indicia of bad driving or other 'plus factor' to support a conviction ... As a matter of policy therefore, it would be inconsistent for this Court to recognize the risk and danger posed to the general public by a DWI driver, yet not extend this same level of concern and protection to a child who is an actual passenger in the DWI driver's moving vehicle."

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

* "Driving," under New Mexico case law, specifically includes both having actual physical control of a non-moving vehicle, and actually driving a vehicle. See State v. Sims, 2010-NMSC-027.

Domestic Advisory Consultation--What is it?

noreply@blogger.com (Pilar Vaile, Esq.) — Fri, 21 Sep 2012 19:49:00 +0000

Besides being a domestic relations mediator, I also am a court appointed "Advisory Consultant" for the Thirteenth Judicial District in New Mexico. In this capacity I meet with parents, meet the children, view their interactions, and make a written recommendation to the Court concerning custody matters. This is potentially a stressful event to the
parents--going through divorce, their lives and even their homes may be in a bit of disarray. The Summer issue of the ABA's Family Advocate, Donald G. Tye and Patricia A. O'Connell offer some helpful advice to the agitated parent, to prepare.

First, they give some general "orienting" advise. They note that a parent needs to focus on him or herself, not the supposed shortcomings of the other parent. To do otherwise, simple creates the impression of a "least distressing alternative," rather than demonstrating "a parent who consistently has his or her children's best interests at heart." The also emphasize that the evaluator "is unaligned with either parent," and the "court will typically grant great deference to his or her impressions and recommendations." Accordingly, you need to "put your best foot forward.

Second, they make a number of specific recommendations to parents to think about in preparation:

- dont interfere with or undermine the other parent's relationship with the children

- anticipate and try to correct the grounds for criticism by the other parent

- mind your and the kids' behavior

- don't leave a trail of ugly face book postings, text messages, etc., as they are increasingly admitted as evidence in custody matters

- if it your parenting time, be a parent, dont palm the kids off on the babysitter, grandma, etc.

- "don't make a bad situation worse, ... b[]e the bigger person and act civilly and respectfully toward the other parent," and "[d]ont' provide him or her with the 'gift'" of bad behavior, especially if documented!

- don't, under any circumstances, discuss the litigation with the children

- be aware of the negative impact of a new girl friend or boy friend on cooperative co-parenting

Finally, at the evaluation itself:

- be honest

- answer the questions directly but thoughtfully

- "show the evaluator that you know your child"

- express "your concerns about the other party's parenting as objectively as possible"

- show that your are capable of co-parenting in a healthy way

If you are interested in child-related mediation, advisory consultation, or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Search and Seizure Rights of Children, Revisited

noreply@blogger.com (Pilar Vaile, Esq.) — Mon, 10 Sep 2012 20:26:00 +0000

In State v. Carlos A., 2012-NMCA-069 (cert. den.), the Court of Appeals reiterated the rule that children have no greater rights than adults in certain criminal procedure matters.

Previously, I'd written about a similar case in which the Court concluded that, like adults, children must be advised during an investigatory detention of their right to remain silent and that anything they say can be used against them but, like adults, the results of field sobriety and blood test are not statements subject to suppression, even under the state's Delinquency Act. See State v. Randy, 2011-NMCA-105, and NMSA § 32-2-14.

In Carlos A., the minor argued "that his status as a minor rendered involuntary is consent to search the car he was driving because the police officer ... failed to inform Carlos that he had the right to deny consent." He also argued, as did the minor in Randy, that the evidence found should be suppressed under § 32-2-14(D), as well as the Fourth Amendment.

Although it's often remarked by their attorneys that children do not have the same quality or quantity of constitutional protections as adults, here Carlos argued that the New Mexico Legislature and courts haves recognized "children are particularly vulnerable, even during simple investigative detentions" and therefore "should be advised of all of their options prior to a police officer taking any further action." Carlos ¶ 17 (emphasis in original). In support, Carlos points to § 32-2-14(C) (providing that no child shall be interrogated without first being advised of constitutional rights and the securing of "knowing, intelligent voluntary waiver"), and language in Javier M., 2001-NMSC-030, that " [g]iven a child's possible immaturity and susceptibility to intimidation, a child who is subject to an investigatory detention may feel pressures similar to those experience by adults during custodial interrogation." Id., ¶ 37.

However, the Court rejected this argument. It pointed to State v. Flores, 2008-NMCA-074 ¶ 16, in which the court held that "presence or absence of knowledge [of the right to refuse consent] is but on factor to consider in the matrix to determine whether a consent to search is voluntary," and other cases and statutory language emphasizing that children are "entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code." Carlos, ¶ 18.

The Court then examined the facts of Carlos' stop to affirm the lower court's ruling that the consent to search the vehicle was voluntary, notwithstanding minor's lack of knowledge about his right to withhold consent. Specifically, both noted that the stop was in public, not hostile, and the officer did not exert any unusual pressure on Carlos.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Ok if Court Can't Determine WHICH Parent Abused Child

noreply@blogger.com (Pilar Vaile, Esq.) — Mon, 27 Aug 2012 20:40:00 +0000

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children. In an important child welfare case, the New Mexico Court of Appeals has recently reaffirmed that adjudication of child abuse is not dependent on a finding of which parent abused the child, despite some changes to statutory language. Since abuser parents often act in complicity if not concert, this ruling significantly advances child welfare in New Mexico.

In the matter of Cheyenne C. and Caylie C., 2012- MCA-0065 (cert. not applied for), Mom and Dad were the primary care givers of the Infant child who suffered a fractured clavicle, two subdural hematomas, a right skull fracture, a fracture in the right forearm, a right femur fracture, a right parietal skull fracture and ischemic brain tissue damage, resulting from at least two incidents of abuse. Parents blamed injuries on the Older Child, the Infant's two year old sister, or an evil spirit. The only other care giver was the maternal Grandmother, who babysat for a couple of hours one day a week while parents attended college classes.

The trial court had stated "it had 'no problem' finding by clear and convincing evidence that Mother or Father caused the injuries, but it could not determine which parent specifically was the perpetrator." The court found that either one or both of the parents abused the child and that if one of them did not abuse the child directly, that parent's "inaction resulted in an 'abused child' as defined under state law.

On review, the Court of Appeals examined the various amendments to the New Mexico Child Welfare Act, and related case law.

Prior to 1997, the act provided four alternate definitions of an "abused child," all of which were framed in reference to action or inaction of the child's "parent, guardian or custodian." See §§ 32A-4-2(B)(1) - (4) (1993) (that an abused child means a child who has suffered physical, emotional or psychological abuse, sexual abuse or sexual exploitation "inflicted by the child's parent, guardian or custodian," or whose "parent, guardian or custodian has knowingly, intentionally or negligently placed the child in a situation that may endanger the child's life or health," or whose "parent, guardian or custodian has knowingly or intentionally tortured, cruelly confined or cruelly punished the child"). New Mexico courts had previously concluded that this definition "did not permit the children's court to adjudicate a child abused or neglected without assigning responsibility for the abuse or neglect to a parent, guardian or custodian." Vincent L., 1998-NMCA-089

In 1997, a new section was added providing that an "abused child" is a child "who is at risk of suffering serious harm[.]" See § 32A-4-2(B)(1) (1997). Thereafter, § 32A-4-2(B)(1) was amended again in 1999, to state that "an abused child" is one "who is is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian or custodian."

Parents had argued that the 1999 amendment returned Section (B)(1) to it's pre-1997 meaning that required the court "to determine which parent, guardian or custodian was the abuser, but the Court of Appeals rejected this interpretation. In re Cheyenne et al, ¶ 13. The Court "read the plain language of the statute" as amended "to indicate that ... the court no determine" only "that it was a parent, guardian, or custodian who placed the child at risk by his or her action or inaction." Id. (emphasis in original). The Court concluded the 1999 amendment's purpose was not to return to the pre-1997 meaning, but only "to clarify that a child may only be adjudicated as abused if the risk of harm is caused by a parent, guardian, or custodian of the child," rather than a teacher, school bully, neighbor, etc.

The Court also noted that even Vincent did not require the courts to affirmatively rule out which parent committed the abuse, but only required that responsibility for the abuse be assigned between caregivers. In that case, there were other caregivers (babysitter and grandmother) that the trial court was unable to rule out, and it was for that reason it could not determine that the abuse was caused by "a parent, guardian, or custodian."

In contrast, in the instant case the trial court was able to determine that abuse had been caused by either Mom or Dad--not the Older Child, evil spirits, or Grandmother--"and, therefore, that the abuse was caused by 'a parent, guardian, or custodian.' as required by the statute."

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Decline in NM Foreclosures Only a Temporary Reprieve?

noreply@blogger.com (Pilar Vaile, Esq.) — Wed, 21 Mar 2012 18:19:00 +0000

Over the past year or so, foreclosure filings have declined in New Mexico, as elsewhere around the nation, particularly in those states that utilize judicial foreclosure. Doing foreclosure mediation, among other things, I was well aware of this trend. It is generally chalked up, by practitioners, to the banks' regrouping efforts necessitated by widespread problems with foreclosure documentation and affidavits, and to a lesser extent
controversies regarding loan origination practices, and settlement efforts concerning both practices.

As I've written previously, at any given time the foreclosure filing rate depicts only a portion of the picture. Generally, there is a separate "shadow inventory" of properties for which home owners are "underwater" or behind or chronically late in their payments, but no default notice or other formal foreclosure activity has yet occurred. During the temporary decline or hiatus in foreclosure filings in New Mexico and elsewhere, this shadow inventory has continued to grow.

Last Friday, the Albuquerque Journal reported that foreclosure activity in New Mexico and 20 other states with judicial foreclosure systems was up in February 2012. Moreover, this was the highest number of states with increases since November of 2010. See Journal, N.M. Foreclosure Activity Up, citing a 3/15/12 RealtyTrac Report. In New Mexico, February saw a 16% increase in foreclosure activity, with most of that increase representing front end activity, meaning issuance of an initial default notice.

Interestingly, this dramatic increase in the activity in some states, and increase in number of states showing such a dramatic increase, is balanced by an overall 8% national decline in foreclosure. However, this was the lowest national decrease since October 2010, and the Journal reports that "[t]he drop was driven largely by declines in the housing bubble states of Arizona, California and Nevada."

The take away lesson appears to be that the real estate "crisis" is still a big problem, at the least, and a continuing obstruction to the national economic recovery.

If you are interested in mediation services for a foreclosure matter (residential or commercial), please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Control of Vehicle While Intoxicated Enough for DWI But Not for Child Endangerment

noreply@blogger.com (Pilar Vaile, Esq.) — Thu, 01 Mar 2012 06:34:00 +0000

As a family mediator and guardian ad litem, I keep abreast of child abuse, neglect and endangerment cases. The New Mexico Court of Appeals has recently reviewed whether control of a vehicle while intoxicated can form the grounds for a felony child abuse conviction. See State v. Etsitty, 2012-NMCA-012. After analysis the Court concluded it could not.

The Defendant and his family, including a four year old, were in their truck getting ready to proceed to the store. Defendant was visibly under the influence, and admitted the intent to drive. After failing the field sobriety investigation, he was arrested and breathalized (he blew over two times the legal limit, at .15).

Thereafter he was charged with both driving while intoxicated (DWI) and child endangerment, and convicted of both. In his appeal, defendant did not challenge the DUI conviction based only on possession of a vehicle rather than actual driving. Indeed, NM law specifically provides for conviction under such circumstances, provided there is (a) actual v. potential control over the vehicle and (b) a general intent to drive so as to pose a real danger. See State v. Sims, 2010-NMSC-027, para. 4.

However, the defendant argued that the misdemeanor DWI conviction did not constitute substantial evidence for the child endangerment conviction. The court concluded that "[a]llowing actual physical control without requiring the act of riving to operate as a basis for a child abuse by endangerment charge effectively turns the child abuse charge into an attempted crime," and "would create liability for an inchoate crime where none was charged or otherwise shown to have been intended by the Legislature," unlike with DWI presumably.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Constitutional Rights of Children & Suppression of Evidence

noreply@blogger.com (Pilar Vaile, Esq.) — Thu, 09 Feb 2012 15:38:00 +0000

It's often remarked by lawyers dealing with children, that they just don't have the same quality or quantity of constitutional protections as adults. In a recent decision, the New Mexico Court of Appeals have made clear that, in at least one area, they have exactly the same amount of rights.

In State v. Randy, 2011-NMCA-105, consistent with the rights of adults, the Court observed that "[w]henever children are subject to an investigatory detention, they must be advised of their right to remain silent and advised that anything they say can be used against them."

However, also consistent with the rights of the adults, the Court went on to hold that a "[c]hild's responses during the field sobriety tests, results of the blood test, and Child's implied consent to the blood test are not statements that are subject to suppression under Section 32-2-14(D)," the state's Delinquency Act.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

The Connected Baby--A Great New Documentary

noreply@blogger.com (Pilar Vaile, Esq.) — Mon, 23 Jan 2012 17:56:00 +0000

Besides being a labor/employment, mediator and mom, I am also a guardian ad litem, working with at risk children. In that latter role, I recently had the pleasure of viewing "The Connected Baby," a documentary or "film conversation" produced by researcher Dr. Suzanne Zeedyk and film-maker Jonathan Robertson.

In her opening presentation of her documentary, Dr. Zeedyk discussed how there has been a dramatic increase in the neuroscience associated with attachment. Simply put, a baby's brain is healthier and more robust, with far greater neural pathways, if he or she forms early and strong attachments with primary care givers. In the first year of develop-
ment, an infant will have 70% of his or her final brain mass. At three years of age, the child is at 90% of final mass. This mass is built by the development of neuron synapses, or cells talking to one another and making connections through experience. Dr. Zeedyk describes these neural pathways as "highways to joy or anxiety," meaning they can grow out of safety and play, or fear and anxiety.

Moreover, our child welfare systems can exacerbate attachment disorder by failing to understand its implications. As one commentator put it, "we take kids in care, traumatized kids, and torture them with so many placements."

Dr. Zeedyk also discussed the fact that economics support the promotion of strong familial attachment, in that it is far cheaper to raise a happy, well adjusted, attached human being than to seek to educate and--more likely--treat and incarcerate a human with attachment disorders. In the last decade, Nobel Prize winning economist James Heckman and others have produced studies showing the phenomenal return on investment for early education, birth through pre-Kindergarten. See Early Childhood Education for All: A Wise Investment, http://web.mit.edu/workplacecenter/docs/Full%20Report.pdf (accessed Dec. 28, 2011). The economic evidence so strongly supports early education and well-being that parliaments and federal reserve banks are even getting in on the game!

However, Dr. Zeedyk explained that the one piece of the puzzle that has so far been inadequately explained is the psychological component--what is attachment and what creates an attached or "connected" baby? This is what Dr. Zeedyk has set out to document in her movie, which posits that babies come into the world connected, and all their movement, actions and reactions are intentional and connected, although the verbal, logical world dismisses them as mere reflex.

I cannot begin to do the film justice here, and strongly urge anyone interested in child welfare or early education to check it out for themselves. However, here are some of the highlights I found most poignant and moving:

- Babies are born more sophisticated and aware than we realize, because they have already become sensitized to our voices, body movements, tastes, sounds, etc., while in the womb.

- Infants participate in the settling and movement process when being held and shifted; they are not passive but rather are participants, as can be seen in their hand and body movements.

- Babies behave like people from birth in a number of ways, as one primate biologist notes. All of their body movements--hands and legs, etc.--are coordinated, controlled by their agency, and express a musical structure, rhythm, and melody innate to all expressive human action and communication. Additionally, because they cannot engage with two things at one time in their still developing mental state, they can be observed to actively choose the object they will engage with--and they invariably choose to engage in the human rather than non-human interaction!

- Although babies don't know what a "mind" is yet, they do feel other minds, and you can feel yourself being sucked into their minds as in a foreign language.

- Babies regularly engage in goal directed behavior. They find mom or dad in an uncomfortable situation, and smile when they find them, although we often dismiss it as gas or some such. Gaze studies demonstrate that babies also track the facial triangle, gazing from eyes, to mouth and back to eyes, which is also a goal directed reading of expression.

- As babies get older, they naturally engage in antics and games, learning anticipation, humor teasing. Depending on circumstances, they can learn that anticipation is fun and safe, or scary. They can also learn that humor is an expressive and communicative interaction that develops connections between the participants.

- In play and navigating the world and experiences, we can observe children processing the changes between games, disconnection, reconnection, and game shifts or changes. Thus, they become self-regulating as they learn to navigate these shifts.

- Observing babies and children, we see that there is even music in their humor, a natural rhythm and melody again, that one commentator described as the "musicality of communication or "communicative musicality."

The ultimate lesson that I took from the film was that we should join the babies and children in their innately connected and goal directed activity and participate in that intensive exchange of emotions, self and meaning.

In the discussion afterward, Dr. Zeedyk observed that we are the most social of all mammals. We saw from the Romanian orphanages how the lack of human love and attachment devastates us. At the same, it is a marvel that we can survive on even a little love. Based on these lessons, Dr. Zeedyk's questions what is the impact of lack of community and respect for families, who come into the world connected? What does it do to us when we lose that connection and become part of a disconnected society?

Dr. Zeedyk shared that an audience member in the prior U.S. viewing stated she didn't think the message was about babies at all, but rather about us--that we should all join anyone/everyone we're interacting with, for that same intensive exchange that we have with children. So, let's all make a promise, to make eye contact in the future, and return smiles, even with strangers!

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Shaken Baby Syndrome--Real or Imagined?

noreply@blogger.com (Pilar Vaile, Esq.) — Wed, 11 Jan 2012 15:01:00 +0000

Some readers may know me as a labor/employment and domestic relations mediator/arbitrator. However, I am also a GAL for abused, neglected kiddos. As such, I take special interest in unusual court cases involving children. I was especially upset and intrigued by a recent ABA Journal article on the heated debate concerning the scientific soundness of shaken baby syndrome theories.

The term "shaken baby syndrome" was coined in the early 1970s and, since that time, it has gained substantial traction in the legal and popular culture. Remember the British au pair in the late 1990s? As Mark Hansen notes in Unsettling Science, "[t]o this day, there is widespread consensus among medical professionals that shaking a baby is dangerous and often lethal." See ABA Journal, Dec. 2011. The National Center on Shaken Baby Syndrome estimates that 1,200 to 1,400 children are injured annually by shaking, and that about one quarter of those are injured fatally. It also opines that "the actual numbers of victims may be much higher" since "many such cases are misdiagnosed or go undetected."

Nonetheless, there is a growing chorus of doubters and critics, who insist that the scientific evidence is not solid. In particular, they challenge the validity of scientific testimony based on the so called "diagnostic triad," or "three key symptoms" including "subdural bleeding, retinal hemorrhages and brain swelling," under which some experts claim "a child with no other injures suggestive of an accident or abuse, must have been shaken." Id.

While I am--personally--deeply troubled by the notion of letting ipsa rea loquiter baby shakers get off scot-free, the documentation of medical disagreement does raise serious questions about the present validity of the presumption.

Specifically, in 1987 a neurosurgery resident at the University of Pennsylvania and a group of biomechanical engineering students, demonstrated that models or dummies of one-month-old-babies could not be shaken "hard enough to generate the kind of force known to cause even a mild concussion. In fact, the most force they could muster was about one-fiftieth the amount of force generated by dropping the dummies onto a padded surface." Id.

Then, in 1998, "a forensic pathologist at East Carolina University School of Medicine studied the interval between injury and the onset of symptoms in 76 alleged child-abuse head injury deaths. In one-quarter of the cases, the interval was more than 24 hours; and, in four cases, it was more than 72 hours, ... contradicting the conventional belief that a child with traumatic head injuries would be immediately symptomatic."

Finally, additional research in the intervening years "has shown that there are many other causes of the three symptoms associated with SBS, including: short-distance falls, congenital malformation, genetic and metabolic disorders, various forms of childhood strokes, accidental injuries,infectious diseases, poisons, medical and surgical complications, and autoimmune conditions."

Ultimately, the only way to accurately study SBS would be to shake a real baby and see what happens--clearly not an option. Meanwhile, in the face of this emergent scientific dispute, some courts are convening inquiries into SBS convictions based on the magic triad. To date, however, they have generally found most of the convictions to be sound upon review. And, as one Assistant District Attorney sums it up, "[b]abies don't just die for no reason."

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

NM Courts Uphold Home Mortgage Re-Fi Practices

noreply@blogger.com (Pilar Vaile, Esq.) — Sat, 31 Dec 2011 15:56:00 +0000

A significant part of my mediation practice nowadays involves foreclosure mediation. As I've written elsewhere, some courts on the East and West coasts have taken mortgage lenders to task in recent years. In New Mexico, however, much of the debate about mortgage lending and foreclosure practices has been largely limited to op-ed pieces until now. Finally, New Mexico courts have weighed in on lending practices at least, in a decision that clarifies the issues but may not bode well for home-owners.

In The Bank of New York v. Romero, 2011-NMCA-110 (cert. granted, Oct. 15, 2011, No. 33,224), the Court upheld a lower court's conclusions that a bank did not engage in "flipping" a residential home loan or fail to disclose the actual loan rate in violation the Home Loan Protection Act (HLPA), NMSA 1978, Sec. 58-21A-1 et seq., or violate the Unfair Practices Act (UPA), NMSA 1978, Sec. 57-12-1 et seq., by taking advantage of unsophisticated homeowners and structuring a refinance loan to strip the homeowners of their equity, because the borrowers "receive[d] a reasonable, tangible net benefit." Romero, para. 9.

The homeowners, the Romeros, had inherited the Chimayo property from Joseph Romero's father in the early 1970s, and had owned the property ever since then. In early 2006, they refinances a balance of $176,450.08 for a new loan of $227,240.00 with Equity One, which repaid their existing home loan, as well as about $9,000.00 in credit card and other obligations, and also gave the Romeros $31,164.82 in cash to pay bills and restock their clothing and music store in Espanola, New Mexico.

After the Romeros fell into arrears, the Bank filed foreclosure suit. The homeowners counterclaimed, alleging deceptive loan practices and unfair trade practices, in that Equity One took advantage of the homeowners, who had limited education, and coerced them to incur debt that Equity One knew the Romeros could never afford, and which "clearly stripped" the Romeros "of their entire equity." Id., paras. 4, 15. Additionally, the Romeros had a higher monthly payment; they were required to pay various fees and costs for the re-finance; and overall term of the mortgage was extended. However, against these factors, the lower court weighed a lower interest rate was extended for an additional year; a slightly lower cap on the interest rate; a signed acknowledgement by the Romeros that they received a reasonable, tangible net benefit; and the cash out of over $40,000.00.

The homeowners argued that if the lender had reviewed annual tax returns, it would have seen that Mr. Romero had misunderstood the question concerning income. However, the Court observed inability to pay was only related the "high cost home loan" section of the HLPA, not the home flipping sectino. The Court did not consider the lower court's findings that the loan did not meet the total pins and fees or rate thresholds for a "high cost" home loan under the HLPA, because the homeowners did not object to those findings.

Regarding then question of reasonable,tangible net benefit, the Court also stressed that it must be analyzed at the time the loan offer was accepted, when homeowners obtained money to save their house from foreclosure and also the opportunity to salvage their business.

Also of note, the Court rejected assertions that a Bank did not hold legal or beneficial title to the transferred note solely because "the assignment stamps or endorsements" are not in the Bank's name. The assignment indicated JP Morgan was the holder, but the Court noted it was admitted without objection and that a Litton Loan Servicing senior litigation processor had testified without contradiction that Bank of New York was the note holder.

The Court did not get to the lower court's conclusion that the HLPA was preempted by federal law, because the appeal was decided on substantial evidence grounds. As the reader will likely be aware, many of the arguments raised in this case appear regularly in foreclosure counterclaims. As foreclosure suits clearly are not going away anytime in the near future, and it will be interested to read the State Supreme Court's take on certiori.

In the meantime, if you are interested in mediation services for a foreclosure matter (residential or commercial), please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

The Inside Scoop on CYFD and Abuse/Neglect, Part II

noreply@blogger.com (Pilar Vaile, Esq.) — Thu, 29 Dec 2011 02:42:00 +0000

In addition to my labor and employment mediation/arbitration work, I am also a New Mexico domestic relations mediator and child protection worker (CASA and GAL), In a previous blog, I outlined the general process by which children believed to be abused or neglected are brought into and processed through "the system." In this follow up blog, I'll address specific details that crop up between intake and placement.

Bernalillo is the largest county in New Mexico and, not surprisingly, has the largest number of kids in custody. In 2010, it had 27.28% of all New Mexican kids in custody. Although Bernalillo has the largest case load and is, like all other government's these days, strapped for funding, it does well with its resources it has. For instance, in 2010, 85.82% of Bernalillo cases had two or fewer placements; the corresponding figure for N.M. was 88.9%. Similarly, 64.3% of Bernalillo children in custody are reunified in less than 12 month; the corresponding figure statewide is 70.8%. So, although the County has some work to do, it is arguably holding its own in these difficult times.

In the last blog, I discussed the intake procedure in fair detail. One interesting quirk not discussed what that all cases are consolidated and alternately assigned between the East and West CYFD offices (San Mateo and Lamberton respectively). this is done to ensure equal case load between the two offices.

After intake, including often a 24 or 48-hour emergency hold, there will be a formal transfer of custody at the 10 day custody hearing. At custody, which is usually sustained, the parties are often referred to mediation. However, mediation can be ordered at any time and is especially utilized pre-adjudication and for pre- open adoption.

Based on the facts that brought the children into custody, a treatment plan will be crafted. The treatment plan seeks to address all facts and circumstances that brought the kids into custody, and that are needed to keep the kids safe and/or enable their safe return. An initial treatment plan will be presented to the Court at the custody hearing, and the hearing officer will order it into effect. It may thereafter be modified based on what is learned in court ordered testing, see below, and/or the parties' performance under the initial plan.

At some point shortly after transfer of custody, the parties will undergo a battery of evaluations and assessments. These are generally ordered by the Court at the custody hearing based on the initial treatment plan, but may be added at a later date as needed. A psycho-social evaluation, which review the upbringing, education and other background of the parent, is generally required, as is a psychological and/or psychiatric evaluations. Drug/alcohol abuse and/or domestic violence assessments will also be ordered if warranted under the facts by which the child(ren) came into custody. Increasingly, respondent attorneys are seeking and obtaining immunity orders to ensure that statements made in the course of court ordered evaluation and./or assessment are not used against them in any subsequent adjudication.

This general process, and any specific requirements, will be laid out for the parents in the "Parent Orientation Packet." This is provided early in the initial intake process, and includes: relevant timelines for court dates, etc.; releases of information for signature; contact and office numbers/addresses; an explanation of the urinalysis procedure; a summary of the proposed or initial treatment plan; and a calendar.

Depending on the case, a "CART examination" (child abuse response team) may be required. This is determined by the doctors and medical providers at the emergency room. A CART examination includes fully body x-rays, blood work, etc. A CART examination will not be requested, however, if the ER records are sufficient to establish the nature and extent of injury.

Another big component of "the process," is parent-child engagement, or visitation. Generally there will be family visitation two times a week, and should include communication, board games or activities, and snacks or meals. Sometimes visitation will be conducted as part of the therapeutic system, such as therapeutic visitation observed and guided by a therapist, or hands-on parenting-counselor such as with PB&J. There are also "ice breaker visits" at the start of custody and in transition to reunification. In an initial icebreaker visit, the biological parent is invited to a meeting with the foster parents, or a treatment team with treatment foster care, so the foster parents can learn more information about the kids. This also helps to humanize the foster parents for the bio parents. At the end, an ice breaker meeting may e held in reverse process, for the foster parents to tell the bio parents the new habits, and likes.

Visitation may also be arranged with extended family, in person one time a month, or through the regular exchange of books read on tape, letters, gifts, etc. CYFD is also exploring the use of SKYPE for long distance extended family visitation.

Eventually, and on a fairly tight deadline under federal law, some sort of permanent placement is expected, within 12-18 months. Resolution of a case can come in several forms, and here is the descending order of placement.

1. Reunification. Note, however, that this is not preferred in where there are aggravated circumstances.

2. Adoption. Note, however, that the Agency utilizes "concurrent placement" for children who are 0-3 and siblings.

3. PPLA, or permanent planned living arrangements. This is not independent living but it is for youths who are 14 years or older of age. Once they are placed on PPLA, the youths have 90 days to figure out what they want to do, such as if they want to stay in the court's jurisdiction.

4. PWFWR, or placement with a fit and willing relative.

5. Permanent guardianship. This is now the only guardianship option; there is no longer a subsidized or "EIV waiver" guardianship.

The federal Adoption and Safe Families Act (ASFA) requires reunification or change of plan to adoption after 15 from adjudication (or 17 months into state custody), with a maximum of 22 months in state custody. The first permanency hearing or "first perm" will be a real changing point, where the the Department must either produce a transition plan for reunification, or request a change of plan to adoption. A change of plan to adoption will only be granted upon clear and convincing, evidence of compelling reasons why the children cannot be safely reunited.

As part of the pre-adoption process, a new "pre-adopt" social worker will be assigned. The pre-adopt worker finds placement "resources" or homes for the child after the plan has been changed from reunification to adoption. This worker also helps to prepare the child emotionally for adoption; locates necessary records; finds the right family for the child; and writes up disclosure information to the adoptive family.

Once an "adoptive resource," e.g. home, is identified, the Department researches legal risk; best interest placement (BIP); disclosure requirements; transition plan; and adoption subsidies. There are usually two types of families: foster conversion or relative placement. The disclosure statement addresses legal risks, and there are two types of disclosure: regular foster care disclosure, and treatment foster care or level 2 tier disclosure. Once adoption is offered and accepted, the Department will not accept an answer for 72 hours. Thereafter, transition will usually take 2-3 weeks.

As mentioned above, there are fewer and fewer EIV adoption subsidies today--this is because any new EIV waivers are based on 1996 poverty levels. The average level of adoption subsidy being negotiated today for Level 1 adoption is $400-480/month as compared to, for instance, $2,000/month for treatment foster care. Additionally, the federal government is tightening guidelines for such subsidies, so it is expected that negotiations will get tougher and amounts smaller over time.

If the child is 18 years old, he or she will age out of the system, but the child may still work an independent living plan. Under this plan, the child can receive monthly money, schooling/tuition assistance, help obtaining medicaid, and continued support of an assigned social workers.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Source:9/2711 CYFD training hosted by the Bernalillo County CASA Offices.

Child Safety Assessment --Threats and Protective Capacities

noreply@blogger.com (Pilar Vaile, Esq.) — Thu, 06 Oct 2011 22:05:00 +0000

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I am attuned to issues related to the safety and adequate care of children. The emerging conceptual model today is to assess threats of child abuse and weigh those threats against the “protective capacities” in the family, to determine whether or not a child is or can be made “safe” in a given home environment. If the child is or cannot be made safe, the State must assume custody. This blog reviews the new safety threat/protective capacity model or analysis.

As an initial matter, it is helpful to review the definitions. A child is “safe,” despite vulnerabilities inherent to age and development, when there are no threats of danger within the family or when the parents possess sufficient protective capacity to manage any threats.

A child is “unsafe” when threats of danger exist within the family, the children are vulnerable to such threats, and the parents have insufficient protective capacities to manage or control the threats.

A “threat of danger” is a specific family situation or behavior, emotion, motive, perception or capacity of a family member. Such threats can arise in circumstances such as the following:

no adult is meeting basic and essential parenting duties and responsibilities;
lack of sufficient basic resources, such as food and shelter;
failure to meet child’s exceptional physical or emotional needs;
lack of adequate parenting skills;
violent and/or dangerous behavior of parents;
dangerous lack of impulse control of parents;
parents’ perceptions of child are extremely negative;
threats or intent of, or actual serious harm;
rejection of Child Protection Services’ interventions, denial of access;
dangerous living arrangements;
child is profoundly fearful of home situation; or
parents cannot or do not adequately explain child’s injuries or threatening family conditions.

A child is “vulnerable” when he or she lacks the capacity to self-protect. This can arise from a variety of factors, including but not limited to:

young age;
susceptibility to harm due to size, mobility or social/emotional state;
developmental disabilities;
isolation;
inability to anticipate and judge the presence of danger;
conscious or unwitting provocations of threats;
poor physical health or capacity;
emotional vulnerability;
the impact of prior maltreatment;
feelings toward the parent, such as attachment, fear, insecurity or security; and
the ability to articulate problems and danger.

Protective capacities of parents and family fall into three (3) categories:

1. Cognitive protective capacities. Refers to knowledge, understanding and perception contributing to protective vigilance; although related to some extent to intellectual capacity, parents with low intellectual functioning can still protect their children. Rather, this has more to do with a parent’s recognition that he or she is responsible for the child, and recognition of cues or alerts that danger is pending. Can be demonstrated when parent:

a. articulates a plan to protect the child;

b. is aligned with the child;

c. has adequate knowledge to fulfill care-giving responsibilities and tasks;

d. is reality oriented, perceives reality accurately;

e. has accurate perceptions of the child;

f. understands his/her protective role; and

g. is self-aware as a caregiver.

2. Behavioral protective capacities. Refers to actions, activities and performance that result in protective vigilance; can be demonstrated when the parent:

a. is physically able

b. has a history of protecting others;

c. acts to correct problems or challenges;

d. demonstrates impulse control;

e. demonstrates adequate skill to fulfill care-giving responsibilities;

f. possesses adequate energy;

g. sets aside his/her needs in favor of a child;

h. is adaptive and assertive; and

i. uses resources necessary to meet the child’s basic needs.

3. Emotional protective capacities. Refers to feelings, attitudes and identification with the child and motivation resulting in protective vigilance; is influenced by the parent/child attachment bond, and the parent’s own emotional strength. Can be demonstrated when the parent:

a. is able to meet own emotional needs;

b. is emotionally able to intervene to protect the child;

c. realizes the child cannot produce gratification and self-esteem for the parent;

d. is tolerant as a parent;

e. displays concern for the child and the child’s experience and is intent on emotionally protecting the child;

f. has a strong bond with the child, knows a parent’s first priority is well-being of the child; and

g. expresses love, empathy and sensitivity toward the child, experiences

Next, this information is put together by the child protective worker to make a SAFETY DECISION.

The first step is determining if there is a threat.

o If no threat exists OR if protective action was taken to terminate the threat, the child is safe and no further action is taken.

If a threat still exists, a determination is made as to vulnerability.

o If the child is not vulnerable to threats, the child is safe and no further action is taken.

If a threat still exists AND the child is vulnerable, a decision is required as to sufficiency of protective capacities to manage the threats.

o If there are sufficient protective capacities, the child is safe and no further action is taken.

o If there are insufficient protective capacities, the child is UNSAFE and further action must be taken.

There are five (5) general categories of action or services available to control threats of danger.

1. Actions or services to control or manage threatening behavior. These can include in-home health care; supervision and monitoring; stress reduction; medical treatment; substance abuse intervention or detoxification; emergency mental health care.

2. Actions or services that will manage crises. These are intended to alleviate a crisis and solve problems than can fuel threats of danger; includes crisis intervention; counseling; or resource acquisition, such as financial help, or help with basic parenting tasks.

3. Actions or services providing social support. These can be especially helpful to your or inexperienced parents, and include a friendly visitor, basic parenting assistance/teaching; homemaker services; home management; supervision and monitoring; social support; and in-home babysitting.

4. Actions or services that can briefly separate parent and child. This can range from one hour babysitting, to weekend/week long respite, to extended foster care.

5. Actions or services to provide resources. Can include resource acquisition,; transportation services; employment assistance; or housing assistance.

Child Protective Services is required to make reasonable efforts to prevent the removal of children from their home. In determining whether reasonable efforts in this regard were taken, the courts will look to what should have been actually was done to control threats, and whether the action taken was the least intrusive approach that was needed to keep the child safe. A common effort is the provision of in-home services, and in-home safety plans. However, an in-home safety plan may not be appropriate if the parents tend to disappear, are unwilling to cooperate, or if the household is unpredictable.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM

Source:

Unidentified/uncredited “Benchmark” handout materials from the Second Judicial District,

N.M. CASA Program (Court Appointed Special Advocate)

Vehicular Manslaughter Distinguished from Child Abuse

noreply@blogger.com (Pilar Vaile, Esq.) — Sat, 01 Oct 2011 22:09:00 +0000

As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children, even when not precisely within my bailiwick. In State v. Gonzales, 2011-NMCA-081, the New Mexico Court of Appeals has ruled that criminal negligence that endangers the public at large--such as driving will intoxicated--and results in injury or death of a child cannot generally support a conviction for negligent child abuse by endangerment (NMSA 30-6-1(D))(1)).

Rather, to support a conviction child negligent child endangerment, there must be "a discernible risk of danger to a particular child or particular children," and the defendant "must be aware of a particular danger to the identifiable child or children when engaging in the conduct that creates the risk of harm."

In this case, the defendant sideswiped another car while intoxicated, killing two minors riding in that other car. Defendant's conviction was reversed because the defendant "was not proven to be aware of the danger to the particular children who were the victims of her drunk driving."

This situation contrasts to the situation in which a defendant drives while intoxicated with children in the car with the defendant, and has an accident resulting in death or injury to the child passengers. In that case, the defendant would have knowledge of "the particular danger" to the "particular children."

Although the decision somehow sits wrong at first blush, I think that is the result of "passion and prejudice" concerning injury to a child. This is particularly true since the State failed to also charge and try the defendant for run of the mill vehicular manslaughter, and the erroneous conviction for negligent child endangerment barred subsequent retrial for vehicular manslaughter under "double jeopardy" principles.

However, divorcing passion from analysis, it is clear the legal conclusion was correct. Although the defendant could reasonably expect to injure someone, there was no reason to anticipate he or she would injure a child and thus be liable for child endangerment.

If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM