There is a 1-year old child, a little boy, that needs a home. His parents have a serious drug problem with meth and heroin that they are not able to conquer. The State of New Mexico has taken custody of the child. For confidentiality reasons the names of some of the unimportant facts have been changed to prevent the reader from being able to identify the specific family members or other individuals involved.
The child, who is not actually named Billy, will be referred to as Billy. Billy has an aunt Betty. Likewise, Betty’s name is not really Betty. Betty lives in a border state other than New Mexico which I will call Calzona. The New Mexico Children Youth and Families Department (The Department) contacted Betty as they are required to locate suitable family members for foster care placement of Billy. Betty informed the Department that she wanted to care for Billy. She was willing to be a foster care placement or even an adoptive placement if that became necessary.
One might think this would be a simple and quick process. Billy has a fit and willing relative who can provide foster care while his parents attempt to work a treatment plan and regain custody. If they successfully complete their treatment plan, they are reunified with Billy. If not, Aunt Betty adopts Billy. Case closed.
However, despite what looks like a simple process the case quickly became complex. New Mexico requires that Betty obtain an ICPC home study before the Department will move Billy from the non-relative foster care provider in New Mexico to Betty’s home in Calzona. Betty, believing that this would be a simple process, agreed to have the Department arrange for a home study.
Betty had not consulted with an attorney and was not aware that an interstate home study would take approximately a year if the Department in New Mexico and the Department in Calzona complete their steps in the usual manner. As I describe the next steps I find it difficult to believe that I am not exaggerating the delay that takes place on a normal basis, but these time lines are correct.
The first step in the process is taken by the Department in New Mexico. The county social worker requesting the ICPC home study from the county office of the Department. The County social workers that process the request are short handed and take a month or a few months to transmit the request to the state ICPC administrator. The NM ICPC office will forward the request to the ICPC administrator for Calzona. The Calzona ICPC administrator will submit the request to local state social workers in the appropriate county in Calzona. The local Calzona social worker will begin the home study. It is not uncommon for the process to take close to a year.
It was at this point in the process that Betty was told by the Calzona social worker that there was a problem. Betty is married to Bob. Betty and Bob fell in love in Calzona, where they met while Bob was in Calzona without proper documentation. Bob is a citizen of Mexico. Bob and Betty have been working to get citizenship for Bob. As part of the immigration process Bob learned he had to return to Mexico for 2 years. Bob and Betty are in love and committed to their relationship so, before they knew anything about Billy, Bob returned to Mexico in order to comply with the U.S. immigration laws.
The Calzona state social worker performing the home study informed Betty that she cannot complete Betty’s home study because Bob is not a U.S. Citizen.
Now there is a possible solution. New Mexico has an adoption code, NMSA 1978 §32A-5-11(B)(2)(c), that provides that a married person may adopt a child without their spouse but only for good cause. Unfortunately, the Home study requirements in Calzona don’t acknowledge this exception. Billy, who has been in state custody and placed with a non-relative for almost a year is, of course, bonding with the non-relative and the non-relative is bonding with Billy.
And while New Mexico adoption statutes and regulations, NMSA 1978 §32A-4-18, NMAC 8.10.8.10 require that the Department give a preference to relative placements if an adult relative of the child meets all relevant child protection and licensing standards, and although Betty is a fit and willing relative who has no criminal background and would certainly be approved in the home study process, the Department has failed to complete the home study. In addition, the state social workers in New Mexico are completely overworked and have no interest in finding a solution for Betty.
Billy continues to reside with the non-relative foster parents. Billy, who is also a person protected by the U.S. Constitution, and has a right to be raised by family, may never be able to live with his Aunt Betty. His parents are failing to overcome their substance abuse problems.
A motion to permit Betty to adopt without her husband and to permit a home study to approve Betty without her husband being included except for the criminal background search is being filed. By the time the case winds its way through the courts Billy will be traumatized if he is separated from the current foster care provider. And unfortunately, neither New Mexico, nor Calzona is a state that allows the biological parents to place Billy directly with Aunt Betty once Billy is in state custody. The outcome of this case is still unknown.
–Hal Atencio is a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys
