This is New Mexico's Children's Code (NMSA Chapter 32A), a broad child welfare and juvenile justice statute establishing the children's court, defining key terms (child, legal custody, foster parent, permanency plan, etc.), and setting out legislative purposes for child protection, family preservation, and juvenile proceedings. It governs child abuse reporting, consent provisions for minors, and court procedures—but does not license or set operating standards for any specific behavioral health, IDD, ABA, or foster care facility type. Compliance staff should note it as foundational statutory context rather than a facility-licensing regulation.
View official sourceCHAPTER 32A Children's Code ANNOTATIONS Compiler's notes. — Laws 1993, ch. 77 revised the 1972 Children's Code by repealing and recompiling the former sections and enacting new sections compiled by that act throughout Chapter 32 NMSA 1978. However, in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under the previous Children's Code, the sections as enacted or recompiled by Chapter 77 of Laws 1993 have been recompiled to Chapter 32A NMSA 1978. The legislatively assigned article and section numbers have been retained. Citations to decisions under prior law have been included whenever possible. For the 1972 Children's Code, as amended, see the 1992 NMSA 1978 on NMOneSource.com. ARTICLE 1 General Provisions ANNOTATIONS Compiler's notes. — Sections 32A-1-1 to 32A-1-20 NMSA 1978 were originally enacted as 32-1-1 to 32-1-19 NMSA 1978 by Laws 1993, ch. 77, §§ 10 to 29. The sections as enacted by Chapter 77 of Laws 1993 have been recompiled to Chapter 32A NMSA 1978 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been included whenever possible. 32A-1-1. Short title. Chapter 32A NMSA 1978 may be cited as the "Children's Code". History: 1978 Comp., § 32A-1-1, enacted by Laws 1993, ch. 77, § 10; 1995, ch. 206, § 1. ANNOTATIONS Cross references. — For sexually oriented material harmful to minors, see 30-37-1 NMSA 1978. For the Uniform Child-Custody Jurisdiction and Enforcement Act, see 40-10A-101 NMSA 1978. For the Kinship Guardianship Act, see 40-10B-1 NMSA 1978. For the Children's Court Rules, see 10-101 NMRA et seq. The 1995 amendment, effective July 1, 1995, substituted "Chapter 32A" for "Chapter 32". Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-1 NMSA 1978 have been included in the annotations to this section. Termination of benefits pending hearing. — Combination of benefits received under the Aid to Families with Dependent Children program, during the time the children are in foster care pending an adjudicatory hearing to determine whether the children are being abused or neglected and should remain in the custody of the Social Services Division, is prohibited until after a full adjudicatory hearing and final judicial decision that the children must be removed from the home. Kramer v. N. M. Human Servs. Dep't, 1992- NMCA-100, 114 N.M. 479, 840 P.2d 1245. Applicability of Children's Code to residents of federal enclave. — The state could exercise its jurisdiction and apply the provisions of the Children's Code to those who reside on a federal military enclave because, in those areas where the federal government has no laws or regulations, there is no interference by the state when it asserts jurisdiction; in such cases, there would be no need for the federal government to relinquish its jurisdiction as provided in Section 19-2-2 NMSA 1978. State ex rel. Children, Youth & Families Dep't v. Debbie F., 1995-NMCA-113, 120 N.M. 665, 905 P.2d 205, cert. denied, 120 N.M. 715, 905 P.2d 1119. Violation of grade court. — The Children’s Code authorizes the children’s court to order detention for violation of a grade court order. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164. Repeals and supersedes provisions of Delinquent Children's Act. — The Children's Code repeals and supersedes many of the provisions of the former Delinquent Children's Act, cited as Sections 13-8-1 through 13-8-73, 1953 Comp. 1972 Op. Att'y Gen. No. 72-27. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For article, "Defending the Criminal Alien in New Mexico: Tactics and Strategy to Avoid Deportation," see 9 N.M.L. Rev. 45 (1978-79). For article, "The New Mexico Children's Code: Some Remaining Problems," see 10 N.M.L. Rev. 341 (1980). For comment, "The Right to Be Present: Should It Apply to the Involuntary Civil Commitment Hearing," see 17 N.M.L. Rev. 165 (1987). Am. Jur. 2d, A.L.R. and C.J.S. references. — Authority of court to order juvenile delinquent incarcerated in adult penal institution, 95 A.L.R.3d 568. Failure of state or local government to protect child abuse victim as violation of federal constitutional right, 79 A.L.R. Fed. 514. 32A-1-2. Short title; scope. A. Chapter 32 [32A], Article 1 NMSA 1978 may be cited as the "Children's Code General Provisions Act". B. The provisions of the Children's Code General Provisions Act apply to Chapter 32 [32A] NMSA 1978: (1) unless the context otherwise requires; and (2) subject to additional definitions contained in Chapter 32 [32A], Articles 2 through 6 NMSA 1978. History: 1978 Comp., § 32A-1-2, enacted by Laws 1993, ch. 77, § 11. 32A-1-3. Purpose of act. The Children's Code shall be interpreted and construed to effectuate the following legislative purposes: A. first to provide for the care, protection and wholesome mental and physical development of children coming within the provisions of the Children's Code and then to preserve the unity of the family whenever possible. A child's health and safety shall be the paramount concern. Permanent separation of a child from the child's family, however, would especially be considered when the child or another child of the parent has suffered permanent or severe injury or repeated abuse. It is the intent of the legislature that, to the maximum extent possible, children in New Mexico shall be reared as members of a family unit; B. to provide judicial and other procedures through which the provisions of the Children's Code are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights are recognized and enforced; C. to provide a continuum of services for children and their families, from prevention to treatment, considering whenever possible prevention, diversion and early intervention, particularly in the schools; D. to provide children with services that are sensitive to their cultural needs; E. to reduce overrepresentation of minority children and families in the juvenile justice, family services and abuse and neglect systems through early intervention, linkages to community support services and the elimination of discrimination; F. to provide for the cooperation and coordination of the civil and criminal systems for investigation, intervention and disposition of cases, to minimize interagency conflicts and to enhance the coordinated response of all agencies to achieve the best interests of a child victim; and G. to provide continuity for children and families appearing before the children's court by assuring that, whenever possible, a single judge hears all successive cases or proceedings involving a child or family. History: 1978 Comp., § 32A-1-3, enacted by Laws 1993, ch. 77, § 12; 1999, ch. 77, § 1; 2009, ch. 239, § 6. ANNOTATIONS The 1999 amendment, effective July 1, 1999, in Subsection A added the second sentence and in the next-to-last sentence inserted "or another child of the parent has". The 2009 amendment, effective July 1, 2009, added Subsection E. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-2 NMSA 1978 have been included in the annotations to this section. Double jeopardy. — The New Mexico constitution and double jeopardy statute, Section 30-1-10 NMSA 1978, do not prohibit the state from prosecuting defendants for child abuse because CYFD previously investigated defendants for child abuse and the tribal court previously held a custody hearing on the same issues. In the previous proceedings, the civil sanctions imposed on the defendant were remedial rather than punitive. State v. Diggs, 2009-NMCA-099, 147 N.M. 122, 217 P.3d 608, cert. denied, 2009-NMCERT-007, 147 N.M. 362, 223 P.3d 359. Intent of code. — The Children's Code is intended to protect children from the consequences of their own acts so long as it is "consistent with the protection of the public interest," and it establishes a system of treatment, care and rehabilitation for children who have committed either "delinquent acts" or who are neglected or in need of supervision. State v. Favela, 1978-NMSC-010, 91 N.M. 476, 576 P.2d 282, overruled on other grounds by State v. Pitts, 1986-NMSC-011, 103 N.M. 778, 714 P.2d 582. The Children's Code has as its central focus children who are alleged to be delinquent, in need of supervision, abused, or neglected. In re Guardianship of Lupe C., 1991- NMCA-050, 112 N.M. 116, 812 P.2d 365. With respect to neglected children, the legislative purposes contained in the Children's Code emphasize a legislative objective of keeping the family together whenever possible, separating the child from his parents and family only when necessary for his welfare, and providing services to assist the child and the family. In re Guardianship of Lupe C., 1991-NMCA-050, 112 N.M. 116, 812 P.2d 365. Best interests of children is paramount consideration. — Parents do not have an absolute right to their children, for any right is secondary to the best interests and welfare of the children. In re Samantha D., 1987-NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert. denied, 106 N.M. 174, 740 P.2d 1158. Proceedings to further stated purposes and policies. — The court is expected to conduct children's court proceedings in a manner that will further the purposes and policies stated in this section. State v. Doe, 1981-NMCA-140, 97 N.M. 263, 639 P.2d 72, cert. denied, 98 N.M. 50, 644 P.2d 1039, and cert. denied, 457 U.S. 1136, 102 S. Ct. 2965, 73 L. Ed. 2d 1354 (1982). Children's Code must be read in entirety and each section interpreted so as to correlate as faultlessly as possible with all other sections, in order that the ends sought to be accomplished by the legislature shall not be thwarted. State v. Doe, 1980-NMCA- 147, 95 N.M. 88, 619 P.2d 192. Parents' right to custody not absolute. — Parents have a natural and legal right to custody of their children. This right is prima facie and not an absolute right. This right, however, must yield when the best interests and welfare of the child are at issue. Roberts v. Staples, 1968-NMSC-109, 79 N.M. 298, 442 P.2d 788. Placement with one other than minor's parent. — The court did not violate the spirit and intent of the Children's Code by placing a 16-year-old girl in the custody of a woman who had helped to rear her and had been found to be a positive influence over her where the child felt compelled to run away from her mother's household and would in all likelihood continue to refuse to live with her mother since the children's court is vested with a broad discretion in hearing and deciding matters under it. In re Doe, 1975-NMCA- 131, 88 N.M. 505, 542 P.2d 1195. Committal to youth authority in best interests of child. — Since the evidence revealed that a child committing involuntary manslaughter had engaged in other violent behavior, the children's court could have reasonably determined that transferring the custody of the child to the youth authority was consistent with the child's best interests, the interests of the child's family, and the interests of the public. State v. Cody R., 1991- NMCA-127, 113 N.M. 140, 823 P.2d 940, cert. denied, 113 N.M. 23, 821 P.2d 1060. Subject of act adequately expressed in title. — Since the "subject" of the act is children and that subject is clearly expressed, a provision within the act authorizing a change in the custody of a neglected child is a detail provided for accomplishing the legislative purpose of protecting children and such detail need not be set forth in the title of the bill to comply with the requirement of N.M. Const., art. IV, § 16, that the subject of every bill be clearly expressed in its title. State ex rel. Health & Soc. Servs. Dep't v. Natural Father, 1979-NMCA-090, 93 N.M. 222, 598 P.2d 1182. Right to be treated as child is a statutory, not a constitutional, right. State v. Doe, 1978-NMCA-025, 91 N.M. 506, 576 P.2d 1137. Same constitutional standards apply to juveniles as to adults. State v. Henry, 1967-NMSC-265, 78 N.M. 573, 434 P.2d 692. Law reviews. — For comment on Neller v. State, 79 N.M. 528, 445 P.2d 949 (1968), see 9 Nat. Resources J. 310 (1969). For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For article, "The New Mexico Children's Code: Some Remaining Problems," see 10 N.M.L. Rev. 341 (1980). For note, "Children's Code - Neglect - State ex rel. Health & Social Services Department v. Natural Father," see 12 N.M.L. Rev. 505 (1982). 32A-1-4. Definitions. As used in the Children's Code: A. "active efforts" means efforts that are affirmative, active, thorough and timely and that represent a higher standard of conduct than reasonable efforts; B. "adult" means a person who is eighteen years of age or older; C. "child" means a person who is less than eighteen years old; D. "council" means the substitute care advisory council established pursuant to Section 32A-8-4 NMSA 1978; E. "court", when used without further qualification, means the children's court division of the district court and includes the judge, special master or commissioner appointed pursuant to the provisions of the Children's Code or supreme court rule; F. "court-appointed special advocate" means a person appointed pursuant to the provisions of the Children's Court Rules to assist the court in determining the best interests of the child by investigating the case and submitting a report to the court; G. "custodian" means an adult with whom the child lives who is not a parent or guardian of the child; H. "department" means the children, youth and families department, unless otherwise specified; I. "disproportionate minority contact" means the involvement of a racial or ethnic group with the criminal or juvenile justice system at a proportion either higher or lower than that group's proportion in the general population; J. "federal Indian Child Welfare Act of 1978" means the federal Indian Child Welfare Act of 1978, as that act may be amended or its sections renumbered; K. "foster parent" means a person, including a relative of the child, licensed or certified by the department or a child placement agency to provide care for children in the custody of the department or agency; L. "guardian" means a person appointed as a guardian by a court or Indian tribal authority; M. "guardian ad litem" means an attorney appointed by the children's court to represent and protect the best interests of the child in a case; provided that no party or employee or representative of a party to the case shall be appointed to serve as a guardian ad litem; N. "Indian" means, whether an adult or child, a person who is: (1) a member of an Indian tribe; or (2) eligible for membership in an Indian tribe; O. "Indian child" means an Indian person, or a person whom there is reason to know is an Indian person, under eighteen years of age, who is neither: (1) married; or (2) emancipated; P. "Indian child's tribe" means: (1) the Indian tribe in which an Indian child is a member or eligible for membership; or (2) in the case of an Indian child who is a member or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has more significant contacts; Q. "Indian custodian" means an Indian who, pursuant to tribal law or custom or pursuant to state law: (1) is an adult with legal custody of an Indian child; or (2) has been transferred temporary physical care, custody and control by the parent of the Indian child; R. "Indian tribe" means an Indian nation, tribe, pueblo or other band, organized group or community of Indians recognized as eligible for the services provided to Indians by the secretary because of their status as Indians, including an Alaska native village as defined in 43 U.S.C. Section 1602(c) or a regional corporation as defined in 43 U.S.C. Section 1606. For the purposes of notification to and communication with a tribe as required in the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978], "Indian tribe" also includes those tribal officials and staff who are responsible for child welfare and social services matters; S. "judge", when used without further qualification, means the judge of the court; T. "legal custody" means a legal status created by order of the court or other court of competent jurisdiction or by operation of statute that vests in a person, department or agency the right to determine where and with whom a child shall live; the right and duty to protect, train and discipline the child and to provide the child with food, shelter, personal care, education and ordinary and emergency medical care; the right to consent to major medical, psychiatric, psychological and surgical treatment and to the administration of legally prescribed psychotropic medications pursuant to the Children's Mental Health and Developmental Disabilities Act [32A-6A-1 to 32A-6A-30 NMSA 1978]; and the right to consent to the child's enlistment in the armed forces of the United States; U. "member" or "membership" means a determination made by an Indian tribe that a person is a member of or eligible for membership in that Indian tribe; V. "parent" or "parents" means a biological or adoptive parent if the biological or adoptive parent has a constitutionally protected liberty interest in the care and custody of the child or a person who has lawfully adopted an Indian child pursuant to state law or tribal law or tribal custom; W. "permanency plan" means a determination by the court that the child's interest will be served best by: (1) reunification; (2) placement for adoption after the parents' rights have been relinquished or terminated or after a motion has been filed to terminate parental rights; (3) placement with a person who will be the child's permanent guardian; (4) placement in the legal custody of the department with the child placed in the home of a fit and willing relative; or (5) placement in the legal custody of the department under a planned permanent living arrangement; X. "person" means an individual or any other form of entity recognized by law; Y. "plan of safe care" means a written plan created by a health care professional intended to ensure the immediate and ongoing safety and well-being of a substance- exposed newborn or to provide perinatal support to a pregnant person with substance use disorder by addressing the treatment needs of the child and any of the child's parents, relatives, guardians, custodians or caretakers to the extent those treatment needs are relevant to the safety of the child; Z. "preadoptive parent" means a person with whom a child has been placed for adoption; AA. "protective supervision" means the right to visit the child in the home where the child is residing, inspect the home, transport the child to court-ordered diagnostic examinations and evaluations and obtain information and records concerning the child; BB. "relative" means a person related to another person: (1) by blood within the fifth degree of consanguinity or through marriage by the fifth degree of affinity; or (2) with respect to an Indian child, as established or defined by the Indian child's tribe's custom or law; CC. "reservation" means: (1) "Indian country" as defined in 18 U.S.C. Section 1151; (2) any lands to which the title is held by the United States in trust for the benefit of an Indian tribe or individual; or (3) any lands held by an Indian tribe or individual subject to a restriction by the United States against alienation; DD. "reunification" means either a return of the child to the parent or to the home from which the child was removed or a return to the noncustodial parent; EE. "secretary" means the United States secretary of the interior; FF. "tribal court" means a court with jurisdiction over child custody proceedings that is either a court of Indian offenses, a court established and operated under the law or custom of an Indian tribe or any other administrative body that is vested by an Indian tribe with authority over child custody proceedings; GG. "tribal court order" means a document issued by a tribal court that is signed by an appropriate authority, including a judge, governor or tribal council member, and that orders an action that is within the tribal court's jurisdiction; and HH. "tribunal" means any judicial forum other than the court. History: 1978 Comp., § 32A-1-4, enacted by Laws 1993, ch. 77, § 13; 1995, ch. 206, § 2; 1999, ch. 77, § 2; 2003, ch. 225, § 1; 2005, ch. 189, § 1; 2009, ch. 239, § 7; 2016, ch. 60, § 1; 2019, ch. 190, § 1; 2022, ch. 41, § 44; 2023, ch. 90, § 2; 2025, ch. 156, § 3. ANNOTATIONS Cross references. — For the Children's Court Rules, see 10-101 NMRA et seq. For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2025 amendment, effective June 20, 2025, revised the definition of the term "plan of safe care" as used in the Children's Code; in Subsection Y, after "plan of" added "safe", added "written" preceding the second occurrence of "plan", added "immediate and ongoing" preceding "safety and well-being", after "newborn" added "or to provide perinatal support to a pregnant person with substance use disorder", after "guardians" deleted "family members" and added "custodians" and replaced "caregivers" with "caretakers". The 2023 amendment, effective July 1, 2023, revised the definition of "guardian"; and in Subsection L, after "Indian tribal authority", deleted "or a person authorized to care for the child by a parental power of attorney as permitted by law". The 2022 amendment, effective July 1, 2022, defined "active efforts", "federal Indian Child Welfare Act of 1978", "Indian", "Indian custodian", "member" or "membership", "reservation", and "secretary", and revised the definitions of "Indian child", "Indian tribe", "parent" or "parents", "relative", and "tribal court", as used in the Children's Code; added a new Subsection A and redesignated former Subsections A through H as Subsections B through I, respectively; added a new Subsection J and redesignated former Subsections I through K as Subsections K through M, respectively; added a new Subsection N and redesignated former Subsections L and M as Subsections O and P, respectively; in Subsection O, after "means an", deleted "unmarried person who is" and added "Indian person, or a person whom there is reason to know is an Indian person under eighteen years of age, who is neither", and added Paragraphs O(1) and O(2); added a new Subsection Q and redesignated former Subsections N through P as Subsections R through T, respectively; in Subsection R, after "means", deleted "federally recognized Indian tribe, community or group pursuant to 25 U.S.C. Section 1903(1)" and added "an Indian nation, tribe, pueblo or other band, organized group or community of Indians recognized as eligible for the services provided to Indians, including an Alaska native village as defined in 43 U.S.C. Section 1602(c) or a regional corporation as defined in 43 U.S.C. Section 1606. For the purposes of notification to and communication with a tribe as required in the Indian Family Protection Act, 'Indian tribe' also includes those tribal officials and staff who are responsible for child welfare and social services matters"; added a new Subsection U and redesignated former Subsections Q through W as Subsections V through BB, respectively; in Subsection V, after "custody of the child", added "or a person who has lawfully adopted an Indian child pursuant to state law or tribal law or tribal custom"; in Subsection BB, added Paragraph BB(2); added Subsection CC and redesignated former Subsection X as Subsection DD; added Subsection EE and redesignated former Subsections Y through AA as Subsections FF through HH, respectively; and in Subsection FF, deleted former Paragraphs (1) and (2) and added "a court with jurisdiction over child custody proceedings that is either a court of Indian offenses, a court established and operated under the law or custom of an Indian tribe or any other administrative body that is vested by an Indian tribe with authority over child custody proceedings". The 2019 amendment, effective June 14, 2019, defined "plan of care" as used in the Children's Code; and added a new Subsection T and redesignated former Subsections T through Z as Subsections U through AA, respectively. The 2016 amendment, effective July 1, 2016, defined "council" and "relative" as used in the Children’s Code; added new Subsection C and redesignated former Subsections C through T as Subsections D through U, respectively; in Subsection E, after "special advocate", deleted "or ‘CASA’", after "person appointed", deleted "as a CASA", and after "Court Rules", deleted "who assists" and added "to assist"; in Subsection K, after "the child in a", deleted "court proceeding" and added "case", and after "party to the", deleted "proceeding" and added "case"; and added a new Subsection V and redesignated the succeeding subsections accordingly. The 2009 amendment, effective July 1, 2009, added Subsection G. The 2005 amendment, effective June 17, 2005, defined "custodian" in Subsection E to mean an adult with whom a child lives who is not a parent or guardian of the child; defined "guardian" in Subsection H to mean a person appointed as a guardian by a court, Indian tribal authority or a person with parental power of attorney; deleted the definition of "guardianship" in former Subsection I; added the definition of "Indian tribe" in Subsection L; provided in Subsection N that "legal custody" includes a legal status created by operation of statute and includes the right and duty to provide personal care of a child; deleted from the former provisions in Subsection N that the rights and duties of legal custody were subject to the rights of the guardian of the child and that required a person granted legal custody to exercise the custodial rights personally; deleted the former provision in Subsection O that a parent retains the duties of guardianship and legal custody of a child; defined "permanency plan" in Subsection P to include a determination that a child's interest will be served best by a reunification or placement with a person who will be the child's permanent guardian; added the definition of "protective supervision" in Subsection S; and added the definition of "reunification" in Subsection T. The 2003 amendment, effective July 1, 2003, substituted "a person" for "an individual" in Subsections A and B; deleted "and Forms" following "Children's Court Rules" in Subsection D; substituted "a person" for "any persons" following "residential facility or" in Subsection E; substituted "A person" for "An individual" preceding "granted legal custody" in Subsection N; substituted "with the child placed in the home of a fit and willing relative" for "until the child reaches the age of majority, unless the child is emancipated, pursuant to the Emancipation of Minors Act" in Paragraph P(4); deleted "that meets the department's definition of long-term foster care" at the end of Paragraph P(5). The 1999 amendment, effective July 1, 1999, deleted "but is not necessarily limited in either number or kind to" at the end of Subsection I; in Subsection O, inserted the language beginning "if the biological" to the end of the first sentence and added the second sentence; and added Subsections P and R, and redesignated the subsequent subsections accordingly. The 1995 amendment, effective July 1, 1995, in Subsection G, inserted "or certified" following "licensed"; in Subsection N, inserted "department" preceding "or agency" and the language beginning "the right to" and ending "Disabilities Act;"; in Subsection O, substituted "biological" for "natural"; added Subsections Q and R; and redesignated former Subsection Q as Subsection S. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-3 NMSA 1978 have been included in the annotations to this section. Stepfather as "custodian". — A stepfather meets the definition of "custodian" for purposes of the court's subject matter jurisdiction over him in a proceeding on a petition alleging abuse or neglect of a child. State ex rel. Children, Youth & Families Dep't (In re Candice Y.), 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, cert. denied, 129 N.M. 207, 4 P.3d 35. Human services department [health care authority department] not "person". — State health and social services (now human services) department was not a "person" within the meaning of the Children's Code. Thus, the department need not be made a party to nor was its presence required in any action filed pursuant to the Children's Code where it may be ordered to assume certain responsibilities pursuant to the Children's Code. In re Doe, 1975-NMCA-152, 88 N.M. 632, 545 P.2d 491. Ex parte conduct rule inapplicable to guardians ad litem. — Rule 16-402 NMRA of the Rules of Professional Conduct does not prohibit guardians ad litem from communicating ex parte with department of children, youth and families social workers; although attorneys, guardians ad litem do not have typical attorney-client relationships with children, and are therefore not bound by that rule. State ex rel. Children, Youth & Families Dep't v. George F., 1998-NMCA-119, 125 N.M. 597, 964 P.2d 158, cert. denied, 125 N.M. 654, 964 P.2d 818. Legal custody provides the right to determine placement of children. — Absent an abuse of its discretion, when the children, youth and families department (department) has legal custody of a child, the department alone is permitted to determine where and with whom the child will be placed. State ex rel. Children, Youth & Families Dep’t v. Jerry K., 2015-NMCA-047, cert. denied, 2015-NMCERT-004. Where father pleaded no contest to the allegation that his children were neglected as a result of father’s inability to discharge his responsibilities to and for them because of incarceration, and where the district court ordered the children into the legal custody of the children, youth and families department (department), the department had the sole discretionary authority, absent an abuse of discretion, to decide with whom the children would be placed, despite father’s own preferences for placement of the children. State ex rel. Children, Youth & Families Dep’t v. Jerry K., 2015-NMCA-047, cert. denied, 2015-NMCERT-004. "Legal custody" continues until terminated by appropriate authority. — A parent has a legal right to the custody of his child unless that right had been terminated, however temporarily, by appropriate authority. State v. Sanders, 1981-NMCA-053, 96 N.M. 138, 628 P.2d 1134. A parent's legal right to custody of a child does not end until entry of, and the giving of notice of, a judgment in compliance with Rule 62(a), N.M.R. Child. Ct. (now 10-352 NMRA), requiring a signed written judgment and disposition. State v. Sanders, 1981- NMCA-053, 96 N.M. 138, 628 P.2d 1134. Age references are to years of age, not mental age. — The numerous references to age in the Children's Code are references to years of age, not mental age. State v. Doe, 1982-NMCA-028, 97 N.M. 598, 642 P.2d 201, cert denied, 98 N.M. 50, 644 P.2d 1039. Law reviews. — For comment, "Navajo Grandparents - ‘Parent’ or ‘Stranger’ - A Child Custody Determination," see 9 N.M.L. Rev. 187 (1978-79). For article, "The New Mexico Children's Code: Some Remaining Problems," see 10 N.M.L. Rev. 341 (1980). For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980). 32A-1-5. Children's court established as division of district court; transfer. A. There is established in the district court for each county a division to be known as the children's court. The district court of each judicial district shall designate one or more district judges to sit as judge of the children's court. B. The supreme court shall adopt rules of procedure not in conflict with the Children's Code governing proceedings in the children's court, including rules and procedures for juries. C. If, in a criminal action, it appears to a court other than the children's court division of the district court that jurisdiction is properly within the children's court division, the other court shall transfer the matter to the children's court division. Upon transfer, the children's court division obtains jurisdiction over the matter for proceedings in accordance with the provisions of the Children's Code. History: 1978 Comp., § 32A-1-5, enacted by Laws 1993, ch. 77, § 14. ANNOTATIONS Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-4 NMSA 1978 have been included in the annotations to this section. No constitutional violation. — Since the 1921 juvenile court law was applicable only to special statutory proceedings set up therein, it did not abrogate the jurisdiction of district courts over minors and therefore was not in violation of N.M. Const., art. VI, § 13. In re Santillanes, 1943-NMSC-011, 47 N.M. 140, 138 P.2d 503. Division created. — The Juvenile Code (now Children's Code) created a division of the district court. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716. Court not inferior to district court. — The N.M. const., art. VI, § 1, authorizing creation of inferior courts did not require that jurisdiction of district courts over juveniles, provided in N.M. const., art. VI, § 13, be transferred to courts inferior to district courts; the juvenile court (now children's court) created in 1955 was not a court inferior to the district court but rather a division of the district court and was constitutionally created. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716. Jurisdiction of court. — A condition of probation in a criminal sexual contact case, prohibiting defendant from having direct or indirect contact with all children under the age of 18, including the victim of his crimes, did not amount to a "de facto" termination of parental rights, necessitating jurisdiction within the children's court. State v. Garcia, 2005-NMCA-065, 137 N.M. 583, 113 P.3d 406. Right to disqualify judge. — The fact that the Juvenile Code (now Children's Code) created special procedures and special handling for minors accused of criminal offenses, and no provision is made in the Juvenile Code (now Children's Code) for the disqualification of a juvenile (now children's court) judge, does not mean that the provisions of Section 38-3-9 NMSA 1978 are inapplicable to juvenile (now children's) court proceedings. The juvenile (now children's court) judge is none other than the district judge serving in another division of the district court and the juvenile is a party to the action or proceeding and entitled to exercise the right of disqualification given her by Section 38-3-9 NMSA 1978. Frazier v. Stanley, 1972-NMSC-028, 83 N.M. 719, 497 P.2d 230. When judge not proper respondent in habeas corpus proceeding. — Juvenile (now children's) court justice is not the proper party in habeas corpus proceeding since only the person having the physical custody of a petitioner (here the sheriff), and who is able to produce him in court, may properly be named as respondent in the habeas corpus proceeding. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716. Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 1 et seq. Family court jurisdiction to hear contract claims, 46 A.L.R.5th 735. 43 C.J.S. Infants § 6. 32A-1-6. Children's court attorney. A. The "office of children's court attorney" is established in each judicial district. Except as provided by Subsection C, D or E of this section, each district attorney is the ex-officio children's court attorney for the judicial district of the district attorney. B. Except as provided by Subsection C, D or E of this section, the children's court attorney may represent the state in any matter arising under the Children's Code when the state is the petitioner or complainant. The children's court attorney shall represent the petitioner in matters arising under the Children's Code when, in the discretion of the judge, the matter presents legal complexities requiring representation by the children's court attorney, whether or not the state is petitioner or complainant, but not in those matters when there is a conflict of interest between the petitioner or complainant and the state. A petitioner or complainant may be represented by counsel in any matter arising under the Children's Code. C. In cases involving civil abuse or civil neglect and the periodic review of their dispositions, the attorney selected by and representing the department is the children's court attorney. The attorney selected by and representing the department shall provide the district attorney of the appropriate judicial district with a copy of any abuse or neglect petition filed in that judicial district. Upon the request of the district attorney, the attorney selected by and representing the department shall provide the district attorney with reports, investigations and pleadings relating to any abuse or neglect petition. D. In cases involving families in need of court-ordered services, the periodic review of their dispositions and voluntary placements, the attorney selected by and representing the department is the children's court attorney. The attorney selected by and representing the department shall provide the district attorney of the appropriate judicial district with a copy of any family in need of court-ordered services petition filed in that judicial district. Upon the request of the district attorney, the attorney selected by and representing the department shall provide the district attorney with reports, investigations and pleadings relating to any family in need of court-ordered services petition. E. In cases involving a child subject to the provisions of the Children's Mental Health and Developmental Disabilities Act [32A-6A-1 to 32A-6A-30 NMSA 1978] that also involves civil abuse, civil neglect or a family in need of court-ordered services, the attorney selected by and representing the department is the children's court attorney. In cases involving a child subject to the provisions of the Children's Mental Health and Developmental Disabilities Act that does not also involve civil abuse, civil neglect or a family in need of court-ordered services, the district attorney is the ex-officio children's court attorney. F. In those counties where the children's court attorney has sufficient staff and the workload requires it, the children's court attorney may delegate children's court functions to a staff attorney. History: 1978 Comp., § 32A-1-6, enacted by Laws 1993, ch. 77, § 15; 1995, ch. 206, § 3; 2005, ch. 189, § 2. ANNOTATIONS The 2005 amendment, effective June 17, 2005, added the phrase "court-ordered" in Subsection D. The 1995 amendment, effective July 1, 1995, added "or E" following "D" and made minor stylistic changes in Subsections A and B; in Subsection C, substituted "with a copy of any abuse or neglect petition" for "reports, investigations and pleadings related to charges of abuse and neglect" and added the last sentence; in Subsection D, substituted the language at the end beginning "with a copy" for "reports, investigations and pleadings related to charges of abuse and neglect filed in that judicial district"; added Subsection E; and redesignated former Subsection E as Subsection F. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-5 NMSA 1978 have been included in the annotations to this section. Judge's interference with children's court attorney not permitted. — A judge is without authority to direct the juvenile probation office to refrain from referring juvenile cases to the district attorney without the judge's prior written consent, or to relieve the district attorney as children's court attorney and to appoint private attorneys to act and to be compensated out of the district attorney's budget, and to do so constitutes bad faith, malicious abuse of judicial power and willful misconduct in office. In re Martinez, 1982-NMSC-115, 99 N.M. 198, 656 P.2d 861. Attorney has authority to execute affidavit of disqualification of judge. — The power and duty of the children's court attorney to represent the state necessarily includes the authority to execute an affidavit of disqualification of a judge when the disqualification is done on behalf of the state. Smith v. Martinez, 1981-NMSC-066, 96 N.M. 440, 631 P.2d 1308. District attorneys' pay. — The legal basis for continuing to pay district attorneys at their pre-Children's Code rate is found in N.M. Const., art. IV, § 27. 1972 Op. Att'y Gen. No. 72-45. 32A-1-7. Guardian ad litem; powers and duties. A. A guardian ad litem shall zealously represent the child's best interests in the proceeding for which the guardian ad litem has been appointed and in any subsequent appeals. B. Unless excused by a court, a guardian ad litem appointed to represent a child's best interests shall continue the representation in any subsequent appeals. C. Any party may petition the court for an order to remove a guardian ad litem on the grounds that the guardian ad litem has a conflict of interest or is unwilling or unable to zealously represent the child's best interests. D. After consultation with the child, a guardian ad litem shall convey the child's declared position to the court at every hearing. E. Unless a child's circumstances render the following duties and responsibilities unreasonable, a guardian ad litem shall: (1) meet with and interview the child prior to custody hearings, adjudicatory hearings, dispositional hearings, judicial reviews and any other hearings scheduled in accordance with the provisions of the Children's Code; (2) communicate with health care, mental health care and other professionals involved with the child's case; (3) review medical and psychological reports relating to the child and the respondents; (4) contact the child prior to any proposed change in the child's placement; (5) contact the child after changes in the child's placement; (6) attend local substitute care review board hearings concerning the child and if unable to attend the hearings, forward to the board a letter setting forth the child's status during the period since the last local substitute care review board review and include an assessment of the department's permanency and treatment plans; (7) report to the court on the child's adjustment to placement, the department's and respondent's compliance with prior court orders and treatment plans and the child's degree of participation during visitations; and (8) represent and protect the cultural needs of the child. F. A guardian ad litem may retain separate counsel to represent the child in a tort action on a contingency fee basis or any other cause of action in proceedings that are outside the jurisdiction of the children's court. When a guardian ad litem retains separate counsel to represent the child, the guardian ad litem shall provide the court with written notice within ten days of retaining the separate counsel. A guardian ad litem shall not retain or subsequently obtain any pecuniary interest in an action filed on behalf of the child outside of the jurisdiction of the children's court. G. In the event of a change of venue, the originating guardian ad litem shall remain on the case until a new guardian ad litem is appointed by the court in the new venue and the new guardian ad litem has communicated with and received all pertinent information from the former guardian ad litem. H. A guardian ad litem shall receive notices, pleadings or other documents required to be provided to or served upon a party. A guardian ad litem may file motions and other pleadings and take other actions consistent with the guardian ad litem's powers and duties. I. A guardian ad litem shall not serve concurrently as both the child's delinquency attorney and guardian ad litem. History: 1978 Comp., § 32A-1-7, enacted by Laws 1993, ch. 77, § 16; 1995, ch. 206, § 4; 2005, ch. 189, § 3. ANNOTATIONS The 2005 amendment, effective June 17, 2005, provided in Subsection A that a guardian ad litem shall represent a child in a proceeding for which the guardian has been appointed and in subsequent appeals; provided in Subsection B that unless excused by a court, a guardian ad litem shall continue the representation in subsequent appeals; provided in Subsection D that a guardian ad litem shall convey the child's declared position to the court at every hearing; provided in Subsection E that unless a child's circumstances render the prescribed duties and responsibilities unreasonable, the guardian ad litem shall perform the prescribed duties and responsibilities in Subsection E; added Subsection H to provide that a guardian ad litem shall receive documents required to be provided or served on a party and may file motions and pleadings and take actions consistent with the guardian's powers and duties; and added Subsection I to provide that a guardian ad litem shall not serve concurrently as a child's delinquency attorney and guardian ad litem. The 1995 amendment, effective July 1, 1995, added "with respect to matters arising pursuant to the provisions of the Children's Code" in Subsection A; added Subsections C and F and redesignated the remaining subsections accordingly; in Subsection E, inserted "or any other cause of action" following "fee basis" and added the last sentence; and made minor stylistic changes throughout the section. Guardian ad litem's dual role. — A guardian ad litem has the dual role of representing the child's best interests, while also presenting the child's position to the court when reasonable and appropriate, even if the child's position conflicts with what the guardian ad litem thinks should be done. State ex rel. Children, Youth & Families Dep't v. Esperanza M., 1998-NMCA-039, 124 N.M. 735, 955 P.2d 204; State ex rel. Children, Youth & Families Dep't (In re Candice Y.), 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, cert. denied, 129 N.M. 207, 4 P.3d 35. Attorney's dual relationship with child – as guardian ad litem during abuse and neglect proceedings, and then as her defense attorney during delinquency proceedings – has potential to become actual, active conflict of interest, and requires, when acting as defense attorney, that counsel adopt child's viewpoint and zealously represent child's wishes, whether or not counsel necessarily agrees that those wishes represent child's best interests State v. Joanna V., 2004-NMSC-024, 136 N.M. 40, 94 P.3d 783. Ex parte conduct rule inapplicable to guardians ad litem. — Rule 16-402 NMRA of the rules of professional conduct does not prohibit guardians ad litem from communicating ex parte with department of children, youth and families social workers; although attorneys, guardians ad litem do not have typical attorney-client relationships with children, and are therefore not bound by that rule. State ex rel. Children, Youth & Families Dep't v. George F., 1998-NMCA-119, 125 N.M. 597, 964 P.2d 158, cert. denied, 125 N.M. 654, 964 P.2d 818. 32A-1-7.1. Child's attorney; powers and duties. A. An attorney shall represent a child in a proceeding for which the attorney has been retained or appointed. The attorney shall provide the same manner of legal representation and be bound by the same duties to the child as is due an adult client, in accordance with the rules of professional conduct. B. Unless excused by a court, an attorney appointed to represent a child shall represent the child in any subsequent appeals. C. An attorney representing a child in a proceeding pursuant to the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] may retain separate counsel to represent the child in a tort action on a contingency fee basis or any other cause of action in proceedings that are outside the jurisdiction of the children's court. When a child's attorney retains separate counsel to represent the child, the attorney shall provide the court with written notice within ten days of retaining the separate counsel. The child's attorney shall not retain or subsequently obtain any pecuniary interest in an action filed on behalf of the child outside of the jurisdiction of the children's court. History: Laws 2005, ch. 189, § 10. ANNOTATIONS Effective dates. — Laws 2005, ch. 189 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 17, 2005, 90 days after adjournment of the legislature. Law reviews. — For note and comment, "Attorneys for Children in Abuse and Neglect Proceedings: Implications for Professional Ethics and Pending Cases", see 36 N.M. L. Rev. 533 (2006). 32A-1-8. Jurisdiction of the court; tribal court jurisdiction; exception. A. The court has exclusive original jurisdiction of all proceedings under the Children's Code in which a person is eighteen years of age or older and was a child at the time the alleged act in question was committed or is a child alleged to be: (1) a delinquent child; (2) a child of a family in need of court-ordered services or a child in need of services pursuant to the Family in Need of Court-Ordered Services Act [Chapter 32A, Article 3B NMSA 1978]; (3) a neglected child; (4) an abused child; (5) a child subject to adoption; or (6) a child subject to placement for a developmental disability or a mental disorder. B. The court has exclusive original jurisdiction to emancipate a minor. C. The provisions of the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978] govern child custody proceedings involving Indian children. To the extent the provisions of the Indian Family Protection Act conflict with the Children's Code, the provisions of the Indian Family Protection Act shall apply. D. During abuse or neglect proceedings in which New Mexico is the home state, pursuant to the provisions of the Uniform Child-Custody Jurisdiction and Enforcement Act [40-10A-101 to 40-10A-403 NMSA 1978], the court shall have jurisdiction over both parents to determine the best interest of the child and to decide all matters incident to the court proceedings. E. The court may acquire jurisdiction over a Motor Vehicle Code [Articles 1 through 8 of Chapter 66 NMSA 1978] or municipal traffic code violation as set forth in Section 32A-2-29 NMSA 1978. History: 1978 Comp., § 32A-1-8, enacted by Laws 1993, ch. 77, § 17; 1995, ch. 206, § 5; 1999, ch. 46, § 1; 1999, ch. 78, § 1; 2005, ch. 189, § 4; 2009, ch. 239, § 8; 2022, ch. 41, § 45. ANNOTATIONS Cross references. — For the Uniform Child-Custody Jurisdiction and Enforcement Act, see 40-10A-101 NMSA 1978 et seq. For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901 et seq. The 2022 amendment, effective July 1, 2022, provided that the provisions of the Indian Family Protection Act govern child custody proceedings involving Indian children, and removed provisions pertaining to custody issues involving Indian children; in the section heading, added "exception"; added a new Subsection C and redesignated former Subsection C as Subsection D; deleted former Subsections D and E; and redesignated former Subsection F as Subsection E. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2009 amendment, effective July 1, 2009, added Subsection F. The 2005 amendment, effective June 17, 2005, provided in Subsection A that the court has jurisdiction of a child in need of court-ordered services or in need of services pursuant to the Family in Need of Services Act. The 1999 amendment, effective July 1, 1999, in Subsection E, deleted "that is not subject to the provisions of the Children's Mental Health and Developmental Disabilities Act and" following "Indian child" in the second sentence, and added the last three sentences. Laws 1999, ch. 46, § 1, effective July 1, 1999, enacted identical amendments to this section. The section was set out as amended by Laws 1999, ch. 78, § 1. See 12-1-8 NMSA 1978. The 1995 amendment, effective July 1, 1995, added "tribal court jurisdiction" to the section heading; in Subsection B, deleted "under other laws which will be controlled by provisions of the other laws without regard to provisions of the Children's Code"; in Subsection C, deleted "children's" preceding "court"; and added Subsection E. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-9 NMSA 1978 have been included in the annotations to this section. Municipal curfew ordinance. — The children's court has exclusive original jurisdiction of all proceedings under the Children's Code involving a child alleged to be delinquent, neglected, abused, or a child of a family in need of services. Through these provisions, the legislature clearly intended to protect and preserve the legal rights of children in New Mexico. This language does not prohibit municipalities from drafting ordinances that proscribe specific conduct of children which is unlawful if committed by adults, however, the procedures within the Children's Code control the manner in which children may be taken into custody, taken into protective custody, or adjudicated. A municipal curfew, which attempted to criminalize behavior involving juveniles, and a program, which purportedly took children into protective custody, implicated the Children's Code procedures and protections. ACLU v. City of Albuquerque, 1999- NMSC-044, 128 N.M. 315, 992 P.2d 866. Children's court is empowered to enter injunction conducive to purposes of Children's Code. In re Doe, 1983-NMCA-025, 99 N.M. 517, 660 P.2d 607. District court has jurisdiction in guardianship, paternity and parental rights disputes. — The district court, whether or not sitting as children's court, has jurisdiction over disputes concerning guardianship, paternity and termination of parental rights. In re Arnall, 1980-NMSC-052, 94 N.M. 306, 610 P.2d 193. Section 40-10-15A(1) NMSA 1978 is in pari materia with this section because both deal with jurisdiction of the children's court; and, being in pari materia, they are to be construed together, if possible, to give effect to the provisions of both statutes. The construction that this section gives the children's court the exclusive jurisdiction to act and that Section 40-10-15A(1) NMSA 1978 limits when that authority is to be exercised, gives effect to both statutes. State ex rel. Dep’t of Human Servs. v. Avinger, 1985- NMCA-097, 104 N.M. 355, 721 P.2d 781, aff'd, 1986-NMSC-032, 104 N.M. 255, 720 P.2d 290 (decided under prior law). Section 40-10-15A NMSA 1978 limits the court's exercise of jurisdiction in a "neglected child" proceeding if that proceeding could result in the modification of another state's custody decree if the other state has not given up jurisdiction. State ex rel. Dep’t of Human Servs. v. Avinger, 1986-NMSC-032, 104 N.M. 255, 720 P.2d 290 (decided under prior law). Subsection B of former Section 32-1-9 NMSA 1978 did not limit district court's jurisdiction. — The words "exclusive original jurisdiction" used in Subsection B of former Section 32-1-9 NMSA 1978 (now Section 32A-1-8 NMSA 1978) were not intended to limit or abrogate the jurisdiction of the district court. In re Arnall, 1980- NMSC-052, 94 N.M. 306, 610 P.2d 193. Neglect proceeding is not bar to termination proceeding. — A prior proceeding concerned with the fact of neglect is not a jurisdictional bar to a later, separate termination proceeding. In re Doe, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510, overruled by State v. Roper, 1996-NMCA-073, 122 N.M. 126, 921 P.2d 322. Jurisdiction to be affirmatively established when defendant's minority at issue. — Exclusive original jurisdiction over juveniles under 18 years of age is vested in the children's court and where the minority of the defendant appears during the course of the trial, the jurisdiction of the trial court must, at that point, be affirmatively established. Trujillo v. Cox, 1965-NMSC-050, 75 N.M. 257, 403 P.2d 696. Jurisdiction over persons contributing to delinquency of minor. — Insofar as the juvenile law purported to confer "exclusive original jurisdiction" on juvenile (now children's) courts over persons contributing to the delinquency of juveniles it was invalid since the constitution vested sole and exclusive jurisdiction for the trial of all felony cases in the district courts. State v. McKinley, 1949-NMSC-010, 53 N.M. 106, 202 P.2d 964. Age references are to years of age, not mental age. — The numerous references to age in the Children's Code are references to years of age, not mental age. State v. Doe, 1982-NMCA-028, 97 N.M. 598, 642 P.2d 201, cert. denied, 98 N.M. 50, 644 P.2d 1039. Effect of petition alleging child in need of supervision. — A child in need of supervision means a child in need of care or rehabilitation, and where the petition alleged that the child was in need of supervision, there was no merit to the claim that the petition was jurisdictionally deficient. In re Doe, 1975-NMCA-131, 88 N.M. 505, 542 P.2d 1195. Vested with sole jurisdiction. — The sole jurisdiction over juveniles in the state of New Mexico has been vested in the juvenile (now children's) court. 1959 Op. Att'y Gen. No. 59-131. Jurisdiction of other courts. — There is no limitation in the Children's Code providing that only children's courts may issue subpoenas to children. Therefore, if a witness fails to appear as ordered, the court with jurisdiction over the case may issue a bench warrant for that witness' arrest, whether or not that witness is a child. 1989 Op. Att'y Gen. No. 89-14. Legal proceedings to prevent withholding of medical treatment. — The state of New Mexico has authority under state law to pursue any legal remedies, including the authority to initiate legal proceedings in a court of competent jurisdiction, as may be necessary to prevent the withholding of medically indicated treatment from disabled infants with life-threatening conditions. 1985 Op. Att'y Gen. No. 85-05. Being found within county without more, held not to suffice. — Juveniles who are merely found within a county in which a particular juvenile (now children's) court has jurisdiction, but who are not otherwise within the provisions of the code, may not be held. For a child under 18 years of age to be within the provisions of the Juvenile Code (now Children's Code) so as to permit him to be taken into custody and lawfully held requires that the juvenile shall have fallen into one of the following situations: (1) violated a law of the state or ordinance or regulation of a political subdivision of the state; (2) has by habitual disobedience of parental or other authority become habitually disobedient, wayward or uncontrollable; (3) is habitually truant from home or school; and (4) habitually deports himself in a manner to injure or endanger the morals, health or welfare of himself or others. 1959 Op. Att'y Gen. No. 59-52 (rendered under prior law). Juvenile to be cited to children's court by police officer. — No town or city police officer may knowingly cite a juvenile offender into any court other than the juvenile (now children's) court; and if a juvenile is mistakenly cited into any other court, the case must be transferred to the juvenile (now children's) court. That court may, in its discretion, allow the juvenile to be treated as an adult, and taken before another court of competent jurisdiction, but all cases of traffic violations by juveniles must first be submitted to the juvenile (now children's) court, as that court has exclusive original jurisdiction. 1960 Op. Att'y Gen. No. 60-199. Apprehension for violation of state law or prohibited habitual conduct. — Juvenile Code (now Children's Code) does not authorize the apprehension and holding of juveniles unless a state law is violated or the juvenile is charged with habitual conduct specifically prohibited. 1959 Op. Att'y Gen. No. 59-52 (rendered under prior law). Allegation of habitual conduct by officer. — It is a practical impossibility for an apprehending officer to truthfully allege habitual conduct in the case of a runaway, except, of course, where the juvenile's past record is, in fact, known and can be presented. 1959 Op. Att'y Gen. No. 59-52 (rendered under prior law). Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For comment, "Navajo Grandparents - ‘Parent’ or ‘Stranger’ - A Child Custody Determination," see 9 N.M.L. Rev. 187 (1978-79). For article, "Children's Waiver of Miranda Rights and the Supreme Court's Decisions in Parham, Bellotti, and Fare," see 10 N.M.L. Rev. 379 (1980). For article, "Full Faith and Credit, Comity, or Federal Mandate? A Path That Leads to Recognition and Enforcement of Tribal Court Orders, Tribal Protection Orders, and Tribal Child Custody Orders", see 34 N.M.L. Rev. 381 (2004). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 36 et seq. Marriage as affecting jurisdiction of juvenile court over delinquent or dependent children, 14 A.L.R.2d 336. Civil or criminal nature of proceedings, 43 A.L.R.2d 1128. Homicide by juvenile as within jurisdiction of juvenile court, 48 A.L.R.2d 663. Age of child at time of alleged offense or delinquency, or at time legal proceedings are commenced, as criterion of jurisdiction of juvenile court, 89 A.L.R.2d 506. Jurisdiction or power of juvenile court to order parent of juvenile to make restitution for juvenile's offense, 66 A.L.R.4th 985. State court's authority, in marital or child custody proceeding, to allocate federal income tax dependency exemption for child to noncustodial parent under § 152(e) of the Internal Revenue Code (26 USCS § 152(e)), 77 A.L.R.4th 786. 43 C.J.S. Infants § 6. 32A-1-9. Venue and transfer. A. Proceedings in the court under the provisions of the Children's Code shall begin in the county where the child resides, or in the case of an eligible adult pursuant to the Fostering Connections Act [Chapter 32A, Article 26 NMSA 1978], where the eligible adult resides. If delinquency is alleged, the proceeding may also be begun in the county where the act constituting the alleged delinquent act occurred or in the county in which the child is detained. Neglect, abuse, family in need of court-ordered services or mental health proceedings may also begin in the county where the child is present when the proceeding is commenced. A transfer may be made if the residence of the child or eligible adult changes or for other good cause. B. In neglect, abuse, family in need of court-ordered services or adoption proceedings for the placement of an Indian child, the court shall, in the absence of good cause to the contrary, transfer the proceeding to the jurisdiction of the Indian child's tribe upon the petition of the Indian child's parent, the Indian child's guardian or the Indian child's tribe. The transfer shall be barred if there is an objection to the transfer by a parent of the Indian child or the Indian child's tribe. History: 1978 Comp., § 32A-1-9, enacted by Laws 1993, ch. 77, § 18; 1999, ch. 196, § 1; 2005, ch. 189, § 5; 2020, ch. 52, § 1. ANNOTATIONS The 2020 amendment, effective May 20, 2020, revised certain venue and transfer of venue provisions for proceedings under the Fostering Connections Act; in Subsection A, after "where the child resides", added "or in the case of an eligible adult pursuant to the Fostering Connections Act, where the eligible adult resides", and added "A transfer may be made if the residence of the child or eligible adult changes or for other good cause"; deleted former Subsections B and C and redesignated former Subsection D as Subsection B; and deleted former Subsection D. The 2005 amendment, effective June 17, 2005, changed "custodian" to "guardian" in Subsection D. The 1999 amendment, effective July 1, 1999, inserted "or after" in the second sentence of Subsection C, in Subsection D, inserted "Indian" preceding "child's parents" in the first sentence, and "Indian" preceding "child or" in the third sentence. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-13 NMSA 1978 have been included in the annotations to this section. Transfer barred. — Where a transfer of jurisdiction to tribal court was raised for the first time on appeal, application of the statute was not allowed because the issue was not properly preserved. State ex rel. Children, Youth & Families Dep't v. Andrea M., 2000- NMCA-079, 129 N.M. 512, 10 P.3d 191. Intent of section. — The legislature intended to create a mechanism which would allow both the children's court and the district court to exercise full subject matter jurisdiction in criminal matters. State v. Garcia, 1979-NMSC-049, 93 N.M. 51, 596 P.2d 264. District court was required to send matter to children's court if defendant was not adult when the offense charged allegedly was committed. State v. Doe, 1980-NMCA- 147, 95 N.M. 88, 619 P.2d 192. Remand from state district court to children's court. — On habeas corpus petitions by state prisoners, the federal courts are concerned only with basic constitutional questions, and whether a juvenile under New Mexico law is entitled to a remand from the state district court to the juvenile (now children's) court because of defects in the waiver of jurisdiction presents a procedural question ordinarily to be determined by the New Mexico courts. Salazar v. Rodriguez, 371 F.2d 726 (10th Cir. 1967). Traffic offenses not deemed delinquent acts. — Municipal and magistrate courts can exercise jurisdiction over children for traffic offenses which are not designated delinquent acts under the Children's Code. 1972 Op. Att'y Gen. No. 72-34. Extradition of juveniles from another state. 1973 Op. Att'y Gen. No. 73-14 (rendered under prior law). Am. Jur. 2d, A.L.R. and C.J.S. references. — Jurisdiction of another court over child as affected by assumption of jurisdiction by juvenile court, 11 A.L.R. 147, 78 A.L.R. 317, 146 A.L.R. 1153. Authority of court to order juvenile delinquent incarcerated in adult penal institution, 95 A.L.R.3d 568. 32A-1-10. Petition; who may sign. A. A petition initiating proceedings pursuant to the provisions of Chapter 32 [32A], Article 2, 3B, 4 or 6 NMSA 1978 shall be signed by the children's court attorney. B. An affidavit for an ex-parte custody order may be signed by any person who has knowledge of the facts alleged or is informed of them and believes that they are true. History: 1978 Comp., § 32A-1-10, enacted by Laws 1993, ch. 77, § 19. ANNOTATIONS Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former 32-1-18 NMSA 1978 have been included in the annotations to this section. Petition held insufficient. — The district court erred in applying the provisions of the Probate Code to appellees' application for guardianship and in adjudicating the child to be neglected under procedural provisions outside the provisions of the Children's Code, because the petition alleging neglect, seeking removal of the child from the mother's custody and the appointment of guardians did not comply with the provisions of former Sections 32-1-17 and 32-1-18 NMSA 1978 (now Sections 32A-2-8 and 32A-1-10 NMSA 1978). In re Guardianship of Lupe C., 1991-NMCA-050, 112 N.M. 116, 812 P.2d 365. 32A-1-11. Petition; form and content. A petition initiating proceedings pursuant to the provisions of Chapter 32A, Article 2, 3B, 4 or 6 NMSA 1978 shall be entitled, "In the Matter of ............, a child", and shall set forth with specificity: A. the facts necessary to invoke the jurisdiction of the court; B. if violation of a criminal statute or other law or ordinance is alleged, the citation to the appropriate law; C. the name, birth date and residence address of the child; D. the name and residence address of the parents, guardian, custodian or spouse, if any, of the child; and if no parent, guardian, custodian or spouse, if any, resides or can be found within the state or if a residence address is unknown, the name of any known adult relative residing within the state or, if there be none, the known adult relative residing nearest to the court; E. whether the child is in custody or detention pursuant to the Delinquency Act [Chapter 32A, Article 2 NMSA 1978] and, if so, the place of custody or detention and the time the child was taken into custody; F. whether the child is an Indian child and, if so, any additional information required pursuant to the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978]; and G. if any of the matters required to be set forth by this section are not known, a statement of those matters and the fact that they are not known. History: 1978 Comp., § 32A-1-11, enacted by Laws 1993, ch. 77, § 20; 2005, ch. 189, § 6; 2022, ch. 41, § 46. ANNOTATIONS Cross references. — For the Supreme Court approved form, see Children's Court Rule 10-101 NMRA. The 2022 amendment, effective July 1, 2022, amended an existing provision that listed items of information required to be set forth in petitions initiating delinquency proceedings, family in need of court-ordered services proceedings, or child abuse and neglect proceedings to include "any additional information required pursuant to the Indian Family Protection Act; and in Subsection F, added "and, if so, any additional information required pursuant to the Indian Family Protection Act". The 2005 amendment, effective June 17, 2005, provided in Subsection E that a petition shall set forth whether the child is in custody or detention pursuant to the Delinquency Act and the place of custody or detention. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-19 NMSA 1978 have been included in the annotations to this section. Neglect proceeding without final judgment does not bar termination proceeding. — Since neglect proceedings do not result in a final judgment on the merits, the department is not barred under the "judgments" rule from later bringing termination proceedings. In re Doe, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510, overruled by State v. Roper, 1996-NMSA-073, 122 N.M. 126, 921 P.2d 322. Petition held insufficient. — Petition alleging that child had committed a delinquent act but not alleging that the child was in need of care or rehabilitation was insufficient to confer jurisdiction upon the children's court, since delinquency requires a showing that both elements exist. In re Doe, 1975-NMCA-002, 87 N.M. 170, 531 P.2d 218 (decided under prior law). Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 36 et seq. 43 C.J.S. Infants §§ 93, 99. 32A-1-12. Summons; issuance and content; waiver of service. A. After a petition has been filed, summonses shall be issued and served pursuant to children's court rule. B. The summons shall require the persons to whom directed to appear personally before the court at the time fixed by the summons to answer the allegations of the petition. The summons shall advise the parties of their right to counsel under the Children's Code and shall have attached to it a copy of the petition. C. The court may endorse upon the summons an order directing the parent, guardian, custodian or other person having the physical custody or control of the child to bring the child to the hearing. D. If it appears from any sworn statement presented to the court that the child needs to be placed in detention, the judge may endorse on the summons an order that an officer serving the summons shall at once take the child into custody and take the child to the place of detention designated by the court, subject, however, to all of the provisions of the Children's Code relating to detention criteria and post-detention proceedings and the rights of the child in regard thereto. E. A party other than the child may waive service of summons by written stipulation or by voluntary appearance at the hearing. If the child is present at the hearing, the child's counsel, with the consent of the parent, guardian or custodian, may waive service of summons in the child's behalf. History: 1978 Comp., § 32A-1-12, enacted by Laws 1993, ch. 77, § 21; 1995, ch. 206, § 6. ANNOTATIONS Cross references. — For rule governing summons in the Children's Court, see Rule 10-103 NMRA. The 1995 amendment, effective July 1, 1995, in Subsection A, substituted "and served pursuant to children's court rule" for specific directions for proper service. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-20 NMSA 1978 have been included in the annotations to this section. Age reference is to years of age, not mental age. — The numerous references to age in the Children's Code are references to years of age, not mental age. State v. Doe, 1982-NMCA-028, 97 N.M. 598, 642 P.2d 201, cert. denied, 98 N.M. 50, 644 P.2d 1039. Children's court attorney provides notice. — A fair implication from the Children's Code's structure and language, especially in light of the customary practice of law, is that the children's court attorney who files the petition bears the burden of providing notice to the parties. Martinez v. Mafchir, 35 F.3d 1486 (10th Cir. 1994). Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 36 et seq. 43 C.J.S. Infants §§ 93, 99. 32A-1-13. Summons; service. A. If a party to be served with a summons can be found within the state, the summons shall be served upon the party as provided by the Rules of Civil Procedure for the District Courts at least forty-eight hours before the hearing, except that for a child party to an action pursuant to the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978], service shall be on the child's guardian ad litem or attorney and not personally pursuant to children's court rule. B. If a party to be served is within the state and cannot be found but the party's address is known, service of the summons may be made by mailing a copy of the summons to the party by certified mail at least fifteen days before the hearing. C. If after reasonable effort a party to be served cannot be found, or address ascertained, within or without the state, the court may order service of the summons by publication in accordance with the provisions of Rule 1-004 of the Rules of Civil Procedure for the District Courts, in which event the hearing shall not be less than five days after the date of last publication. D. The court may authorize the payment from court funds of the costs of service and of necessary travel expenses incurred by persons summoned or otherwise required to appear at the hearing. History: 1978 Comp., § 32A-1-13, enacted by Laws 1993, ch. 77, § 22; 1995, ch. 206, § 7; 2005, ch. 189, § 7. ANNOTATIONS Cross references. — For process and service, see Rules 1-004 and 1-005 NMRA. For process and service in the Children's Court, see Rules 10-103 to 10-106 NMRA. The 2005 amendment, effective June 17, 2005, changed the statutory reference to the Abuse and Neglect Act and required service to be made on the child's guardian ad litem and attorney in Subsection A. The 1995 amendment, effective July 1, 1995, added the proviso at the end of Subsection A beginning "except that". Children's court attorney provides notice. — A fair implication from the Children's Code's structure and language, especially in light of the customary practice of law, is that the children's court attorney who files the petition bears the burden of providing notice to the parties. Martinez v. Mafchir, 35 F.3d 1486 (10th Cir. 1994). Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — Service of process, 90 A.L.R.2d 293. 32A-1-14. Repealed. History: 1978 Comp., § 32A-1-14, enacted by Laws 1993, ch. 77, § 23; 2005, ch. 189, § 8; 2019, ch. 125, § 1; repealed by Laws 2022, ch. 41, § 71. ANNOTATIONS Repeals. — Laws 2022, ch. 41, § 71 repealed 32A-1-14 NMSA 1978, as enacted by Laws 1993, ch. 77, § 23, relating to notice to Indian tribes, effective July 1, 2022. For provisions of former section, see the 2021 NMSA 1978 on NMOneSource.com. 32A-1-14.1. Determination of whether a child is an Indian child. A. If a child is taken into custody by the department, the department shall make active efforts to determine whether there is reason to know the child is an Indian child. B. At the beginning of every proceeding under the Children's Code [Chapter 32A NMSA 1978], the court shall make a written determination as to whether the Indian Family Protection Act applies to the case. C. At the commencement of any hearing in a child custody proceeding, the court shall determine whether the child is an Indian child by asking, on the record, each individual present on the matter whether the individual knows or has reason to know that the child is an Indian child. If no individual present at the hearing knows or has reason to know that the child is an Indian child, the court shall instruct each party to inform the court immediately if the individual later receives information that provides reason to know that the child is an Indian child. D. A court has reason to know that a child is an Indian child if: (1) an Indian tribe asserts that the child may be eligible for membership; (2) any party in the proceeding, officer of the court involved in the proceeding or an Indian organization informs the court that the child is an Indian child; (3) any party at the hearing, officer of the court present at the hearing, Indian tribe or Indian organization informs the court that information has been discovered indicating that the child is an Indian child; (4) the child indicates to the court that the child is an Indian child; (5) the court is informed that the domicile or residence of the child, the child's parent, the child's guardian or the child's Indian custodian is on a reservation or in an Alaska native village; (6) the court is informed that the child is or has been under the jurisdiction of a tribal court; (7) the court is informed that the child or the child's parent possesses an identification card or other record indicating membership in an Indian tribe; (8) testimony or documents presented to the court indicate that the child may be an Indian child; or (9) any other indicia provided to the court or within the court's knowledge indicate that the child is an Indian child. E. If a court has reason to know that a child is an Indian child but does not have sufficient evidence to determine whether the child is an Indian child, the court shall: (1) treat the child as an Indian child until the court determines, on the record, that the child is not an Indian child; and (2) require the department or another party to submit a report, declaration or testimony on the record that the department or other party made active efforts to identify and work with all of the Indian tribes of which there is reason to know the child may be a member or be eligible for membership to verify whether the child is an Indian child. F. As used in this section, "Indian organization" means a group, association, partnership, corporation or other legal entity owned or controlled by Indians, or a majority of whose members are Indians. History: Laws 2022, ch. 41, § 43. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 43 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. 32A-1-15. Release or delivery from custody. In all cases begun pursuant to the provisions of the Children's Code, when a child is taken into custody, the child shall be released to the child's parent, guardian or custodian in accordance with the conditions and time limits set forth in the Children's Court Rules and Forms. History: 1978 Comp., § 32A-1-15, enacted by Laws 1993, ch. 77, § 24. ANNOTATIONS Cross references. — For the Children's Court Rules, see Rule 10-101 NMRA et seq. 32A-1-16. Basic rights. A. A child subject to the provisions of the Children's Code is entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code. B. A person afforded rights under the Children's Code shall be advised of those rights at that person's first appearance before the court on a petition under the Children's Code. C. An eligible adult retains all of the basic rights of an adult while receiving services pursuant to the fostering connections program. History: 1978 Comp., § 32A-1-16, enacted by Laws 1993, ch. 77, § 25; 2019, ch. 149, § 11. ANNOTATIONS The 2019 amendment, effective June 14, 2019, provided that an "eligible adult", as defined in the Fostering Connections Act, retains all of the basic rights of an adult while receiving services pursuant to the fostering connections program; and added Subsection C. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-27 NMSA 1978 have been included in the annotations to this section. Child's right to counsel is the right to have counsel present at any proceeding when the child is a participant; the right to counsel does not extend to a probation officer's conference with another probation officer, law enforcement officers or the other children involved. State v. Doe, 1977-NMCA-124, 91 N.M. 232, 572 P.2d 960, cert. denied, 91 N.M. 249, 572 P.2d 1257 (1978). The policy behind Rule 22(d), N.M.R. Child. Ct. (now 10-211 NMRA), is that every child has the right to be represented by an attorney and that a child is not capable of making a knowing and intelligent waiver of that right. State v. Doe, 1980-NMCA-179, 95 N.M. 302, 621 P.2d 519. Statements made before advised by counsel inadmissible. — Where the statements of the defendant, a child, show he believed in the truth of statements witnesses made to the police, the defendant's statements were made to the police after the police took him into custody and at a time when he was not advised by counsel, and under this section the statements were inadmissible. State v. Doe, 1977-NMCA-078, 91 N.M. 92, 570 P.2d 923. Right not applicable to volunteered statements or statements not requiring Miranda warnings, such as answers to threshold questioning. Doe v. State, 1984-NMSC-001, 100 N.M. 579, 673 P.2d 1312. Children's court's failure to appoint guardian not jurisdictional. — In a proceeding to terminate a minor mother's parental rights, the failure of the children's court to appoint a guardian ad litem for the mother did not deprive the court of jurisdiction since the court appointed counsel to represent her pursuant to Rule 1-017C NMRA. State ex rel. Children, Youth & Families Dep't v. Lilli L., 1996-NMCA-014, 121 N.M. 376, 911 P.2d 884. Fourth amendment applicable to proceedings. — United States Const., amend. IV, rights of persons to be secure against unreasonable searches and seizures, has been expressly applied to juvenile proceedings in this state. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248; State v. Doe, 1979-NMCA-032, 93 N.M. 143, 597 P.2d 1183. Children require opportunity to be heard. — Since the children's court made a dispositional ruling without giving the attorney for the children an opportunity to be heard, and since the attorney nevertheless sought to speak on behalf of the children, but the children's court interrupted and effectively denied the children the opportunity to be heard, the portions of the judgments committing each of the children to the department of corrections (now corrections department) were vacated to afford the children an opportunity to be heard before a new dispositional judgment is to be entered. State v. Doe, 1977-NMCA-050, 90 N.M. 404, 564 P.2d 207. A child has the right to address the children's court before disposition; the children's court should offer a child the opportunity to address the court before pronouncing sentence. State v. Ricky G., 1990-NMCA-101, 110 N.M. 646, 798 P.2d 596. Court has discretionary power to accept or refuse admission by child, and so it is not an abuse of discretion to refuse to accept the admission when the consequence of such an acceptance would foreclose transfer. State v. Doe, 1978-NMCA-025, 91 N.M. 506, 576 P.2d 1137. Prior inconsistent statement not admissible for impeachment. — In a delinquency proceeding, the state was prohibited from introducing for impeachment purposes a prior inconsistent statement made by a youth the night of his arrest. State v. Santiago Rene O., 1991-NMCA-139, 113 N.M. 148, 823 P.2d 948. No reversal where court fails to advise of rights. — Although the court has a statutory obligation to advise children before it of their rights under the Children's Code and other laws at each separate appearance, that obligation must be read in light of the legislative purposes expressed in the code, and since the child did not claim any prejudice nor claim that he was not otherwise advised by his attorney of his constitutional or other legal rights, the appellate court would not reverse a commitment order for failure of the trial court to advise the child of his rights. In re Doe, 1975-NMCA- 124, 88 N.M. 481, 542 P.2d 61. Waiver of right must be done intelligently. — Waiver of a right created by the constitution, a statute or a court-promulgated rule must be done intelligently and knowingly if the right is to be denied the one claiming it. State ex rel. Dep't of Human Servs. v. Perlman, 1981-NMCA-076, 96 N.M. 779, 635 P.2d 588. Admission of child's statement is reversible error. — Admission of statements made by a child under age 15 against that child at a hearing to adjudicate delinquency is reversible error. State v. Jonathan M., 1990-NMSC-046, 109 N.M. 789, 791 P.2d 64. Right to disqualify judge. — The disqualification statute (Section 38-3-9 NMSA 1978) applies to children's court proceedings, and a party to a children's court proceeding is entitled to disqualify the children's court judge. Smith v. Martinez, 1981-NMSC-066, 96 N.M. 440, 631 P.2d 1308. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For article, "Children's Waiver of Miranda Rights and the Supreme Court's Decisions in Parham, Bellotti, and Fare," see 10 N.M.L. Rev. 379 (1980). For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980). For note, "Children's Code - Neglect - State ex rel. Health & Social Services Department v. Natural Father," see 12 N.M.L. Rev. 505 (1982). For comment, "The Right to Be Present: Should It Apply to the Involuntary Civil Commitment Hearing," see 17 N.M.L. Rev. 165 (1987). For note, "Criminal Procedure - The Fifth Amendment Privilege Against Self- Incrimination Applies to Juveniles in Court-Ordered Psychological Evaluations: State v. Christopher P.," see 23 N.M.L. Rev. 305 (1993). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 75 et seq. Duty to advise accused as to right to assistance of counsel, 3 A.L.R.2d 1003. Right to and appointment of counsel in juvenile court proceedings, 60 A.L.R.2d 691, 25 A.L.R.4th 1072. Jury trial in juvenile court delinquency proceedings, right to, 100 A.L.R.2d 1241. Bail: right to bail in proceedings in juvenile courts, 53 A.L.R.3d 848. Applicability of double jeopardy to juvenile court proceedings, 5 A.L.R.4th 234. Right of juvenile court defendant to be represented during court proceedings by parent, 11 A.L.R.4th 719. Validity and efficacy of minor's waiver of right to counsel - modern cases, 25 A.L.R.4th 1072. Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions-post-Connelly cases, 48 A.L.R.5th 555. 43 C.J.S. Infants § 96. 32A-1-17. Appeals. A. Any party may appeal from a judgment of the court to the court of appeals in the manner provided by law. The appeal shall be heard by the court of appeals upon the files, records and transcript of the evidence of the court. Absent an order of the appellate court, files and records that are required to be kept confidential and closed to the public, pursuant to any provision of the Children's Code shall be kept confidential and closed to the public on appeal. B. The appeal to the court of appeals does not stay the judgment appealed from, but the court of appeals may order a stay upon application and hearing consistent with the provisions of the Children's Code if suitable provision is made for the care and custody of the child. If the order appealed from grants the legal custody of the child to or withholds it from one or more of the parties to the appeal, the appeal shall be heard at the earliest practicable time. C. If the court of appeals does not dismiss the petition and order the child released, it shall affirm the court's judgment or it shall modify the court's judgment and remand the child to the jurisdiction of the court for disposition consistent with the appellate court's decision on the appeal. Any party may appeal to the supreme court in the manner provided by law. D. A child who has filed notice of appeal shall be furnished a transcript of the proceedings, or as much of it as is requested, without cost upon the filing of an affidavit that the child or the person who is legally responsible for the care and support of the child is financially unable to purchase the transcript. E. Appeals from the court to the court of appeals shall proceed in accordance with time limits to be established by the supreme court. F. Appeals from a tribal court order shall proceed pursuant to tribal law to an appropriate tribal court. History: 1978 Comp., § 32A-1-16, enacted by Laws 1993, ch. 77, § 26; 1995, ch. 22, § 1; 1995, ch. 206, § 8; 1999, ch. 195, § 1. ANNOTATIONS Cross references. — For appeals from the Children's Court, see the Rules of Appellate Procedure, 12-101 NMRA. The 1999 amendment, effective July 1, 1999, in Subsection A rewrote the last sentence, which formerly read "The name of the child shall not appear in the record on appeal". The 1995 amendment, effective July 1, 1995, deleted "children's" preceding "court" in Subsections A, C, and E and added Subsection F. Laws 1995, ch. 22, § 1, effective June 16, 1995, also amended this section. The section was set out as amended by Laws 1995, ch. 206, § 8. See 12-1-8 NMSA 1978. Section 39-3-3 NMSA 1978 governs interlocutory appeals of suppression of evidence orders from a children’s court. State v. Jade G., 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-39 NMSA 1978 have been included in the annotations to this section. While appeal of abuse and neglect adjudication is pending, the children's court has jurisdiction to take further action in the case. State ex rel. Children, Youth & Families Dept. v. Frank G., 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, aff'd, 2006-NMSC- 019, 139 N.M. 459, 134 P.3d 746. Subsection A allows any party to appeal as provided by law. State v. Jade G., 2005- NMCA-019, 137 N.M. 128, 108 P.3d 534, aff'd, 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. State has right to appeal judgments of the children's court. State v. Doe, 1978-NMCA- 124, 92 N.M. 354, 588 P.2d 555, cert. denied, 92 N.M. 353, 588 P.2d 554 (1979). "Appeals in the manner provided by law" interpreted. — This section does not create a right to appeal, but requires a determination of whether the appeal is authorized by another statute. State v. Nehemiah G., 2018-NMCA-034, cert. denied. Where child pleaded guilty to two counts of second-degree murder and three counts of intentional child abuse resulting in death for shooting and killing his father, mother, and three younger siblings, and where the state appealed the children's court judge's finding that the state failed to prove that child is not amenable to treatment or rehabilitation as a child in available facilities, the state was authorized to appeal the children's court judge's finding, because under 39-3-7 NMSA 1978, any aggrieved party, in any special statutory proceeding in the district court, may appeal the entry of any final judgment or decision, or any final order after entry of judgment which affects substantial rights, and in this case, the state was an aggrieved party and proceedings under the Children's Code are special statutory proceedings. State v. Nehemiah G., 2018-NMCA-034, cert. denied. Standing to appeal. — The children, youth and families department has standing to appeal the judgment of disposition of a child that is placed in its custody. State ex rel. Children, Youth & Families Dep't v. Paul G., 2006-NMCA-038, 139 N.M. 258, 131 P.3d 108. Right to court-appointed counsel. — Mother had a right to court-appointed counsel on appeal of a decision terminating her parental rights and counsel had an obligation to present her issues in accordance with the guidelines set forth in State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967). State ex rel. Children, Youth & Families Dep't v. Alice P., 1999-NMCA-098, 127 N.M. 664, 986 P.2d 460, cert. denied, 127 N.M. 391, 981 P.2d 1209. State questioning legal sufficiency of its own pleadings. — The state's appeal of the children's court order continuing a child on probation and granting her equal custody to one not a parent presented the anomalous situation of the state questioning the legal sufficiency of its own pleadings, but it would be entertained since proceedings concerning the custody of minors are not adversary, and the court therein is not merely an arbiter but an advocate seeking to protect the welfare and interests of the minor. In re Doe, 1975-NMCA-131, 88 N.M. 505, 542 P.2d 1195. Clerk of court of appeals deletes child's name. — The clerk of the court of appeals is directed to delete the child's name from all records in this court and substitute the fictitious name of "John Doe." In re Doe, 1973-NMCA-141, 85 N.M. 691, 516 P.2d 201 (see Rule 12-305 NMRA). Stay from prosecution should be granted in appeal from order transferring juvenile to district court to stand trial as an adult. State v. Greg R., 1986-NMCA-096, 104 N.M. 778, 727 P.2d 86, cert. denied, 104 N.M. 761, 726 P.2d 1391. Effect of no application for stay of transfer order. — An order transferring a juvenile from the children's court to the district court is a "judgment"; thus, having failed to request a stay, the defendant waives any impediment to the state's obtaining a grand jury indictment of the defendant pending appeal of the order. State v. Hovey, 1987- NMSC-080, 106 N.M. 300, 742 P.2d 512. Issue of parental rights to be raised by parent. — The state, prosecuting the probation revocation petition of a child in need of supervision, can appropriately challenge the custody arrangements made by the court, but since those custody arrangements and thus their effect on parental rights are of limited duration, the issue of parental rights is one to be raised by the parent and not by the state; a violation of due process can be urged only by those who can show an impairment of their rights in the application of the statute to them. In re Doe, 1975-NMCA-131, 88 N.M. 505, 542 P.2d 1195. Court's discretion not to be disturbed absent showing of abuse. — Exercise of the court's discretion should not be disturbed on appeal in the absence of a showing of manifest abuse. In re Doe, 1975-NMCA-131, 88 N.M. 505, 542 P.2d 1195. Supreme court review on appeal or writ of error. — A proceeding under act relating to dependent and neglected children was not a special proceeding, but was a civil action, and the judgment therein was reviewable in the supreme court on appeal or writ of error. Blanchard v. State ex rel. Wallace, 1925-NMSC-018, 30 N.M. 459, 238 P. 1004. Transfer order may be summarily affirmed. — Summary affirmance was due on order transferring a juvenile from children's court to be tried as an adult even though juvenile filed a timely memorandum in opposition to affirmance, and though continuing to contest summary disposition, he provided no reasons why the summary disposition should not be made. State v. Greg R., 1986-NMCA-096, 104 N.M. 778, 727 P.2d 86, cert. denied, 104 N.M. 761, 726 P.2d 1391. Supreme court without jurisdiction to review interlocutory order. — Where in an adoption proceeding based upon written consent of the parents to the adoption of their infant child, the trial court granted the parents' motion to withdraw their previous consent, and at the same time retained jurisdiction to declare the child found to be a dependent and neglected child, a ward of the court, and place it under the control and direction of New Mexico department of public welfare (now health care authority department), leaving temporary custody of the child with the adoptive parents pending further order of the court, the order was interlocutory in nature and the supreme court was without jurisdiction to review it. In re Adoption of Helms, 1955-NMSC-024, 59 N.M. 177, 281 P.2d 140. Review of best interests determination. — The best interests determination of the children's court attorney is subject to judicial review by the children's court and by the New Mexico court of appeals. State v. Doe, 1982-NMCA-065, 97 N.M. 792, 643 P.2d 1244. Exhibits on appeal. — Where a child sexual abuse victim had difficulty expressing herself about the offense, a stick figure drawing made by the court together with the victim's testimony, was evidence considered by the children's court in formulating its decision and was properly included in the record on appeal. State v. Benny E., 1990- NMCA-052, 110 N.M. 237, 794 P.2d 380. Release of child's name. — A law enforcement agency is not prohibited from releasing to the public the names of juveniles who have been arrested for criminal acts and the charges for which they were arrested. 1987 Op. Att'y Gen. No. 87-29 (now Section 32A- 2-32 NMSA 1978). Law reviews. — For comment, "Poteet v. Roswell Daily Record, Inc.: Balancing First Amendment Free Press Rights Against a Juvenile Victim's Right to Privacy," see 10 N.M.L. Rev. 185 (1979-1980). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 118 et seq. 43 C.J.S. Infants § 101. 32A-1-18. Procedural matters. A. When it appears from the facts during the course of any proceeding under the Children's Code that some finding or remedy other than or in addition to those indicated by the petition or motion are appropriate, the court may, either on motion by the children's court attorney or that of counsel for the child, amend the petition or motion and proceed to hear and determine the additional or other issues, findings or remedies as though originally properly sought. B. Upon application of a party, the court shall issue, and upon its own motion the court may issue, subpoenas requiring attendance and testimony of witnesses and the production of records, documents or other tangible objects at any hearing. C. Subject to the laws relating to the procedures therefor and the limitations thereon, the court may punish a person for contempt of court for disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders. D. In any proceeding under the Children's Code, either on motion of a party or on the court's own motion, the court may make an order restraining the conduct of any party over whom the court has obtained jurisdiction if: (1) the court finds that the person's conduct is or may be detrimental or harmful to the child and will tend to defeat the execution of any order of the court; and (2) due notice of the motion and the grounds therefor and an opportunity to be heard thereon have been given to the person against whom the order is directed. E. In any proceeding under the Children's Code, the court may allow a party or witness to the proceeding to participate by the use of electronic communications, consistent with the rights of all parties to the proceeding and pursuant to rules promulgated by the supreme court. History: 1978 Comp., § 32A-1-18, enacted by Laws 1993, ch. 77, § 27; 1995, ch. 206, § 9. ANNOTATIONS Cross references. — For subpoenas in the Children's Court, see Rule 10-143 NMRA. The 1995 amendment, effective July 1, 1995, deleted "provided all necessary parties consent" following "petition or motion and" in Subsection A, substituted "the judgment of disposition made" for "any order of the court" in Paragraph (1) of Subsection D, and added Subsection E. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-40 NMSA 1978 have been included in the annotations to this section. Failure to follow statutory procedure. — Where the parent was charged with neglect and abandonment of the parent’s children; at the end of the hearing, after all evidence had been presented, CYFD asserted in its closing argument that there was sufficient evidence to support a finding of abuse; the court considered CYFD’s argument as a motion to amend to conform to the evidence pursuant to Rule 1-015 NMRA and granted the motion to amend the petition to include a claim of abuse; the court did not hear the issue of abuse; and the court found that the parent neglected and abused the children, the parent’s due process rights were violated by the amendment procedure because the court erred by relying on Rule 1-015 NMRA and by not holding a hearing on the abuse issue as required by Section 32A-1-18 NMSA 1978. State ex rel. Children, Youth & Families Dep't v. Steve C., 2012-NMCA-045, 277 P.3d 484. Children's court is empowered to enter injunction conducive to purposes of Children's Code. In re Doe, 1983-NMCA-025, 99 N.M. 517, 660 P.2d 607. Children's court had statutory authority to order therapy for a child, even though the court found that the child was neither abused nor neglected, where the facts indicated that the case itself caused a need for the child to require counseling. State ex rel. Dep't of Human Servs. v. Patrick R., 1986-NMCA-116, 105 N.M. 133, 729 P.2d 1387. Incarceration of child in need of supervision for contempt. — There is no authority to incarcerate children in need of supervision for a probation violation after a finding of three violations of probation. State v. Julia S., 1986-NMCA-039, 104 N.M. 222, 719 P.2d 449. Accommodation availability rests with administrators. — Availability of accommodations in state institution is made the controlling factor in determining admissions, and this question rests solely with the administrators and not with the court. That the court may punish for contempt is not open to question; but, in view of what is later said, it is without authority to proceed against the administrators. Carter v. Montoya, 1966-NMSC-021, 75 N.M. 730, 410 P.2d 951. Testimony by electronic communication. — Court should consider the following functions related to a witness' personal appearance in determining whether the allowance of testimony via electronic communication falls within due process standards: assists the trier of fact in evaluating the witness' credibility by allowing his or her demeanor to be observed first-hand; helps establish the identity of the witness; impresses upon the witness the seriousness of the occasion; assures that the witness is not being coached or influenced during testimony; assures that the witness is not referring to documents improperly; and provides for the right of confrontation. State ex rel. Children, Youth & Families Dep't v. Anne McD., 2000-NMCA-020, 128 N.M. 618, 995 P.2d 1060. Am. Jur. 2d, A.L.R. and C.J.S. references. — Court's power to punish for contempt a child within the age group subject to jurisdiction of juvenile court, 77 A.L.R.2d 1004. Interference with enforcement of judgment in criminal or juvenile delinquent case as contempt, 8 A.L.R.3d 657. Lack of notice to contemnor at time of contemptuous conduct of possible criminal contempt sanctions as affecting prosecution for contempt in federal court, 76 A.L.R. Fed. 797. 32A-1-19. Court costs and expenses. A. The following expenses shall be a charge upon the funds of the court upon their certification by the court: (1) reasonable compensation for services and related expenses for counsel appointed by the court; (2) reasonable compensation for services and related expenses of a guardian ad litem or a child's attorney appointed by the court; and (3) the expenses of service of summonses, notices, subpoenas, traveling expenses of witnesses and other like expenses incurred in any proceeding under the Children's Code. B. A child, the family of a child or a person legally obligated to care for and support a child who is subject to the provisions of the Delinquency Act [Chapter 32A, Article 2 NMSA 1978] shall not be required to pay any court costs, expenses pursuant to Subsection A of this section, fees or fines. C. Whenever legal custody of an adjudicated child is vested in someone other than the child's parents, including an agency, institution or department of this state, if the court, after notice to the parents or other persons legally obligated to support the child and after a hearing, finds that the parents or other legally obligated persons are financially able to pay all or part of the costs and expenses of the support and treatment, the court may order the parents or other legally obligated persons to pay to the custodian in the manner the court directs a reasonable sum that will cover all or part of the expenses of the support and treatment of the child subsequent to the entry of the custody order. The court may use the child support guidelines set forth in Section 40-4- 11.1 NMSA 1978 to calculate a reasonable payment. If the parents or other legally obligated persons willfully fail or refuse to pay the sum ordered, the court may proceed with contempt charges and the order for payment may be filed and if filed shall have the effect of a civil judgment. History: 1978 Comp., § 32A-1-19, enacted by Laws 1993, ch. 77, § 28; 2005, ch. 189, § 9; 2021, ch. 15, § 3. ANNOTATIONS The 2021 amendment, effective June 18, 2021, prohibited courts from requiring children subject to the provisions of the Delinquency Act, or their families, to pay court costs, certain expenses, fees or fines; and completely rewrote Subsection B. The 2005 amendment, effective June 17, 2005, provided in Subsection A that the fees of a child's attorney shall be a charge upon the funds of the court. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-41 NMSA 1978 have been included in the annotations to this section. Assessment of deposition costs. — The children's court cannot assess deposition costs against the human services department [health care authority department] in a child abuse and neglect proceeding. State ex rel. Human Servs. Dep't v. Judy H., 1987- NMCA-045, 105 N.M. 678, 735 P.2d 1184, cert. denied, 105 N.M. 644, 735 P.2d 1150. Guardian ad litem not entitled to attorney fees. — Guardian ad litem for a child appointed by the children's court in an abuse and neglect proceeding was not entitled to attorneys fees since the court did not request payment and since the children, youth, and families department was not a "person" who could be required to pay attorney fees under this section. In re T.B., 1996-NMCA-035, 121 N.M. 465, 913 P.2d 272. Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — Attorneys' fees awards in parent- nonparent child custody case, 45 A.L.R.4th 212. 32A-1-20. Purchase of care from private agency by public agency. A. When the legal custody of a child or the placement and care responsibility of an eligible adult is vested in a public agency, under the provisions of the Children's Code, the public agency may transfer physical custody of the child or the eligible adult to an appropriate private agency and may purchase care and treatment from the private agency if the private agency submits periodic reports to the public agency covering the care and treatment the child or eligible adult is receiving and the child's or eligible adult's responses to that care and treatment. These reports shall be made as frequently as the public agency deems necessary, but not less often than once each six months for each child or eligible adult. The private agency shall also afford an opportunity for a representative of the public agency to examine or consult with the child or eligible adult as frequently as the public agency deems necessary. B. As used in this section, "eligible adult" means an individual who meets the eligibility criteria for participation in the fostering connections program established pursuant to the Fostering Connections Act. History: 1978 Comp., § 32A-1-20, enacted by Laws 1993, ch. 77, § 29; 2019, ch. 149, § 12. ANNOTATIONS The 2019 amendment, effective June 14, 2019, authorized a public agency, which has the care responsibility of an eligible adult, to purchase care and treatment for that eligible adult from a private agency; added new subsection designation "A."; in Subsection A, after "custody of a child", added "or the placement and care responsibility of an eligible adult", after "physical custody of the child", added "or the eligible adult", after "treatment the child", added "or eligible adult", after "and the child's", added "or eligible adult", after "six months for each child", added "or eligible adult", and after "consult with the child", added "or the eligible adult"; and added Subsection B. 32A-1-21. Runaway child; law enforcement; permitted acts. Whenever a law enforcement agency receives a report from a parent, guardian or custodian that a child over whom the parent, guardian or custodian has custody has, without permission, left the home or residence lawfully prescribed for the child and the parent, guardian or custodian believes the child has run away, a law enforcement agent may help the parent, guardian or custodian locate the child and: A. return the child to the parent, guardian or custodian unless safety concerns are present; B. hold the child for up to six hours if the parent, guardian or custodian cannot be located; provided, however, that no child shall be placed in a secured setting pursuant to this section; or C. after the six hours has expired, follow the procedures outlined in Section 32A-3B- 3 NMSA 1978. History: Laws 2007, ch. 185, § 2; 2009, ch. 239, § 9. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection B, after “cannot be located”, added the remainder of the sentence. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-1-22. Medical cannabis program; removal of children; family services intervention; school enrollment; medical care. A. An individual's participation in the state's medical cannabis program established pursuant to the Lynn and Erin Compassionate Use Act [Chapter 26, Article 2B NMSA 1978] shall not in itself constitute grounds for: (1) intervention, removal or placement into state custody of a child in that individual's care pursuant to the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978]; or (2) the provision of state prevention, diversion or intervention services to that individual's family pursuant to the Voluntary Placement and Family Services Act [Chapter 32A, Article 3A NMSA 1978]. B. A person shall not be denied custody of or visitation or parenting time with a child, and there is no presumption of neglect or child endangerment, for conduct allowed under the Lynn and Erin Compassionate Use Act. C. A school shall not refuse to enroll or otherwise penalize a person solely for conduct allowed pursuant to the Lynn and Erin Compassionate Use Act, unless failing to do so would cause the school to lose a monetary or licensing-related benefit under federal law or regulation. D. For the purposes of medical care, including an organ transplant, a qualified patient's use of cannabis pursuant to the Lynn and Erin Compassionate Use Act shall be considered the equivalent of the use of any other medication under the direction of a physician and shall not be considered to constitute the use of an illicit substance or otherwise disqualify a qualified patient from medical care. History: Laws 2019, ch. 247, § 14; 1978 Comp., § 32A-3A-15, recompiled and amended as § 32A-1-22 by Laws 2023, ch. 90, § 3. ANNOTATIONS Recompilations. — Laws 2023, ch. 90, § 3 recompiled and amended former 32A-3A- 15 NMSA 1978 as 32A-1-22 NMSA 1978, effective July 1, 2023. The 2023 amendment, effective July 1, 2023, changed "Family Services Act" to "Voluntary Placement and Family Services Act". ARTICLE 2 Delinquency ANNOTATIONS Compiler's notes. — Sections 32A-2-1 to 32A-2-32 NMSA 1978 were enacted as 32-2- 1 to 32-2-32 NMSA 1978 by Laws 1993, ch. 77, §§ 30 to 61. 32A-2-1. Short title. Chapter 32A, Article 2 NMSA 1978 may be cited as the "Delinquency Act". History: 1978 Comp., § 32A-2-1, enacted by Laws 1993, ch. 77, § 30; 2007, ch. 19, § 1. ANNOTATIONS The 2007 amendment, effective June 15, 2007, changed Chapter "32" to Chapter "32A". Law reviews. — For note, "State v. Muniz: Authorizing Adult Sentences of Juveniles Absent a Conviction that Authorizes an Adult Sentence", see 35 N.M. L. Rev. 229 (2005). 32A-2-2. Purpose of act. The purpose of the Delinquency Act is: A. consistent with the protection of the public interest, to remove from children committing delinquent acts the adult consequences of criminal behavior, but to still hold children committing delinquent acts accountable for their actions to the extent of the child's age, education, mental and physical condition, background and all other relevant factors, and to provide a program of supervision, care and rehabilitation, including rehabilitative restitution by the child to the victims of the child's delinquent act to the extent that the child is reasonably able to do so; B. to provide effective deterrents to acts of juvenile delinquency, including an emphasis on community-based alternatives; C. to strengthen families and to successfully reintegrate children into homes and communities; D. to foster and encourage collaboration between government agencies and communities with regard to juvenile justice policies and procedures; E. to develop juvenile justice policies and procedures that are supported by data; F. to develop objective risk assessment instruments to be used for admission to juvenile detention centers; G. to encourage efficient processing of cases; H. to develop community-based alternatives to detention; I. to eliminate or reduce disparities based upon race or gender; J. to improve conditions of confinement in juvenile detention centers; and K. to achieve reductions in the number of warrants issued, the number of probation violations and the number of youth awaiting placements. History: 1978 Comp., § 32A-2-2, enacted by Laws 1993, ch. 77, § 31; 2003, ch. 225, § 2; 2007, ch. 19, § 2. ANNOTATIONS The 2007 amendment, effective June 15, 2007, added Subsections D through K. The 2003 amendment, effective July 1, 2003, added Subsection C. Rules governing applicable proceedings. — Reading the Children's Code and the Children's Court Rules together, the overall scheme contemplates that, while the Rules of Criminal Procedure govern the adjudicatory proceedings in youthful offender cases, the Children's Court Rules govern all dispositional proceedings for all youthful offenders. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, aff'd in part, rev'd in part, 2006 NMSC-030, 140 N.M. 24, 139 P.3d 184. Application of section eliminated. — The express language "notwithstanding any other provision to the contrary" in the first sentence of Section 32A-2-14F NMSA 1978 is construed to eliminate the application of this section to show legislative intent to balance accountability with protection of children. State v. Jade G., 2005-NMCA-019, 137 N.M. 128, 108 P.3d 534, aff'd, 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Meeting section goals. — Where child’s interim detention served the specific purposes of holding child accountable, providing supervision, ensuring for his health and physical safety, providing a deterrent and acting in a manner consistent with the public interest, it was an attempt to meet the goals set forth in this section as part of an overall disposition effort. State v. Wacey C., 2004-NMCA-029, 135 N.M. 186, 86 P.3d 611. Presentence credit. — A child who is found not guilty of being a serious youthful offender, but adjudicated as a delinquent offender on a lesser-included offense, is not entitled to presentence confinement credit against the child’s commitment to the children, youth and families department. State v. Nanco, 2012-NMCA-109, 288 P.3d 527, cert. granted, 2012-NMCERT-010. Where the child, who was fifteen years old, was charged with committing first degree murder and two counts of tampering with evidence, and the jury determined that the child had committed the delinquent acts of voluntary manslaughter and one count with tampering with evidence, the child was not entitled to presentence confinement credit against the child’s commitment to the custody of the children, youth and families department for the twenty-five months the child was detained in a juvenile detention facility before the district court adjudicated the child a delinquent offender. State v. Nanco, 2012-NMCA-109, 288 P.3d 527, cert. granted, 2012-NMCERT-010. Law enforcement does not have a duty to consider a child’s mental disability before arresting the child, if the arresting officer has established probable cause to arrest. — Where a law enforcement officer has established probable cause to arrest a child for committing a delinquent act, the Delinquency Act does not impose an additional duty on the law enforcement officer to investigate whether a disability prevents the child from forming the requisite intent to commit the delinquent act. J.H. ex rel. J.P. v. Bernalillo Cnty., 61 F.Supp.3d 1085 (D.N.M. 2014). Where student resource officer had probable cause to arrest plaintiff, a sixth grade student who had been qualified as emotionally disturbed, based on the officer’s own observation of plaintiff kicking her teacher, corroborated by interviews with the teacher and another student who had been attacked by plaintiff, the officer did not violate the plaintiff’s fourth amendment rights when he arrested plaintiff, and the New Mexico Delinquency Act did not impose a duty on the officer to investigate whether plaintiff’s disability prevented her from forming the requisite intent to commit battery on a school employee; once probable cause to arrest is established, an officer is not required to continue to investigate for exculpatory evidence before arresting a suspect. J.H. ex rel. J.P. v. Bernalillo Cnty., 61 F.Supp.3d 1085 (D.N.M. 2014). 32A-2-3. Definitions. As used in the Delinquency Act: A. "delinquent act" means an act committed by a child that would be designated as a crime under the law if committed by an adult, not including a violation of Section 30-9- 2 NMSA 1978, including the following offenses: (1) any of the following offenses pursuant to municipal traffic codes or the Motor Vehicle Code [66-1-1 NMSA 1978]: (a) driving while under the influence of intoxicating liquor or drugs; (b) failure to stop in the event of an accident causing death, personal injury or damage to property; (c) unlawful taking of a vehicle or motor vehicle; (d) receiving or transferring of a stolen vehicle or motor vehicle; (e) homicide by vehicle; (f) injuring or tampering with a vehicle; (g) altering or changing of an engine number or other vehicle identification numbers; (h) altering or forging of a driver's license or permit or any making of a fictitious license or permit; (i) reckless driving; (j) driving with a suspended or revoked license; or (k) an offense punishable as a felony; (2) buying, attempting to buy, receiving, possessing or being served any alcoholic liquor or being present in a licensed liquor establishment, other than a restaurant or a licensed retail liquor establishment, except in the presence of the child's parent, guardian, custodian or adult spouse. As used in this paragraph, "restaurant" means an establishment where meals are prepared and served primarily for on- premises consumption and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals. "Restaurant" does not include an establishment, as defined in regulations promulgated by the director of the special investigations unit of the department of public safety, that serves only hamburgers, sandwiches, salads and other fast foods; (3) a violation of Section 30-29-2 NMSA 1978, regarding the illegal use of a glue, aerosol spray product or other chemical substance; (4) a violation of the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978]; (5) escape from the custody of a law enforcement officer or a juvenile probation or parole officer or from any placement made by the department by a child who has been adjudicated a delinquent child; (6) a violation of Section 30-15-1.1 NMSA 1978 regarding unauthorized graffiti on personal or real property; (7) a violation of an order of protection issued pursuant to the provisions of the Family Violence Protection Act [Chapter 40, Article 13 NMSA 1978]; or (8) trafficking cannabis as provided in Section 26-2C-28 NMSA 1978; B. "delinquent child" means a child who has committed a delinquent act; C. "delinquent offender" means a delinquent child who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender; D. "detention facility" means a place where a child may be detained under the Children's Code pending court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child; E. "felony" means an act that would be a felony if committed by an adult; F. "misdemeanor" means an act that would be a misdemeanor or petty misdemeanor if committed by an adult; G. "restitution" means financial reimbursement by the child to the victim or community service imposed by the court and is limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical, psychiatric and psychological treatment for injury to a person and lost wages resulting from physical injury, which are a direct and proximate result of a delinquent act. "Restitution" does not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses. As used in this subsection, "victim" means a person who is injured or suffers damage of any kind by an act that is the subject of a complaint or referral to law enforcement officers or juvenile probation authorities. Nothing contained in this definition limits or replaces the provisions of Subsections A and B of Section 32A-2-27 NMSA 1978; H. "serious youthful offender" means an individual fifteen to eighteen years of age who is charged with and indicted or bound over for trial for first degree murder. A "serious youthful offender" is not a delinquent child as defined pursuant to the provisions of this section; I. "supervised release" means the release of a juvenile, whose term of commitment has not expired, from a facility for the care and rehabilitation of adjudicated delinquent children, with specified conditions to protect public safety and promote successful transition and reintegration into the community. A juvenile on supervised release is subject to monitoring by the department until the term of commitment has expired and may be returned to custody for violating conditions of release; and J. "youthful offender" means a delinquent child subject to adult or juvenile sanctions who is: (1) fourteen to eighteen years of age at the time of the offense and who is adjudicated for at least one of the following offenses: (a) second degree murder, as provided in Section 30-2-1 NMSA 1978; (b) assault with intent to commit a violent felony, as provided in Section 30-3- 3 NMSA 1978; (c) kidnapping, as provided in Section 30-4-1 NMSA 1978; (d) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978; (e) aggravated battery against a household member, as provided in Subsection C of Section 30-3-16 NMSA 1978; (f) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978; (g) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978; (h) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978; (i) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; (j) robbery, as provided in Section 30-16-2 NMSA 1978; (k) aggravated burglary, as provided in Section 30-16-4 NMSA 1978; (l) aggravated arson, as provided in Section 30-17-6 NMSA 1978; or (m)abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978; (2) fourteen to eighteen years of age at the time of the offense, who is adjudicated for any felony offense and who has had three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense. The felony adjudications relied upon as prior adjudications shall not have arisen out of the same transaction or occurrence or series of events related in time and location. Successful completion of consent decrees is not considered a prior adjudication for the purposes of this paragraph; or (3) fourteen years of age and who is adjudicated for first degree murder, as provided in Section 30-2-1 NMSA 1978. History: 1978 Comp., § 32A-2-3, enacted by Laws 1993, ch. 77, § 32; 1995, ch. 204, § 2; 1995, ch. 205, § 2; 1995, ch. 206, § 10; 1996, ch. 85, § 2; 2003, ch. 225, § 3; 2005, ch. 189, § 11; 2009, ch. 239, § 10; 2019, ch. 101, § 1; 2024, ch. 38, § 17. ANNOTATIONS The 2024 amendment, effective July 1, 2024, added "trafficking cannabis products" to the list of offenses under the Delinquency Act; and in Subsection A, added Paragraph A(8). The 2019 amendment, effective June 14, 2019, excluded prostitution from the definition of "delinquent act" as used in the Delinquency Act; and in Subsection A, added "not including a violation of Section 30-9-2 NMSA 1978". The 2009 amendment, effective July 1, 2009, in Paragraph (1) of Subsection A, at the beginning of the sentence, deleted "an offense" and added "any of the following offenses"; and added Subsection I The 2005 amendment, effective June 17, 2005, deleted former Subsection A(3), which provided that a delinquent act included a felony violations of Section 17-1-1 through 17- 5-9 NMSA 1978 and regulations adopted by the state game commission; and defined "youthful offender" in Subsection I to include a delinquent child fourteen to eighteen years of age and who is adjudicated for aggravated battery against a household member. The 2003 amendment, effective July 1, 2003, added "an offense" at the beginning of Paragraph A(1); deleted "any" at the beginning of Subparagraphs A(1)(a) to (h); in Paragraph A(2), substituted "an establishment" for "establishments" preceding "as defined in", substituted "serves" for "serve" following "public safety, that"; added Paragraph A(8); and substituted "a" for "any" or "an" for "any" throughout the section. The 1996 amendment, effective July 1, 1996, deleted "but not limited to" in the introductory language of Subsection A and added Paragraph A(7); substituted "fifteen to eighteen" "for sixteen or seventeen" in Subsection H; substituted "fourteen" for "fifteen" at the beginning of Paragraphs I(1), (2) and (3); added Subparagraph I(1)(e) and redesignated the following subparagraphs accordingly; deleted "which results in great bodily harm to another person" preceding "was provided" in Subparagraph I(1)(f); added Subparagraph I(1)(l); and made stylistic changes throughout the section. The 1995 amendment, effective July 1, 1995, inserted "felony" preceding "violation" in Paragraph (3) of Subsection A; substituted "32A-2-27" for "32-2-27" in Subsection G; substituted "three-year" for "two-year" preceding "time period" in Paragraph (2) of Subsection I; and made minor stylistic changes throughout the section. Laws 1995, ch. 204, § 2 and Laws 1995, ch. 205, § 2 also amended this section. The section was set out as amended by Laws 1995, ch. 206, § 10. See 12-1-8 NMSA 1978. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-3 NMSA 1978 have been included in the annotations to this section. Law enforcement does not have a duty to consider a child’s mental disability before arresting the child, if the arresting officer has established probable cause to arrest. — Where a law enforcement officer has established probable cause to arrest a child for committing a delinquent act, the Delinquency Act does not impose an additional duty on the law enforcement officer to investigate whether a disability prevents the child from forming the requisite intent to commit a delinquent act. J.H. ex rel. J.P. v. Bernalillo Cnty., 61 F.Supp.3d 1085 (D.N.M. 2014). Where student resource officer had probable cause to arrest plaintiff, a sixth grade student who had been qualified as emotionally disturbed, based on the officer’s own observation of plaintiff kicking her teacher, corroborated by interviews with the teacher and another student who had been attacked by plaintiff, the officer did not violate the plaintiff’s fourth amendment rights when he arrested plaintiff, and the New Mexico Delinquency Act did not impose a duty on the officer to investigate whether plaintiff’s disability prevented her from forming the requisite intent to commit battery on a school employee; once probable cause is established, an officer is not required to continue to investigate for exculpatory evidence before arresting a suspect. J.H. ex rel. J.P. v. Bernalillo Cnty., 61 F.Supp.3d 1085 (D.N.M. 2014). Commitment to age 21. — Section 32A-2-19 B(1)(c) NMSA 1978 does not say that commitment to age 21 is authorized only for children who fit the definition of youthful offenders as set forth in Subsection I (now J) of this section. State v. Indie C., 2006- NMCA-014, 139 N.M. 80, 128 P.3d 508, cert. denied, 2006-NMCERT-001, 139 N.M. 273, 131 P.3d 660. Delinquency Act does not define or describe "complaint". State v. Jade G., 2005- NMCA-019, 137 N.M. 128, 108 P.3d 534, aff'd, 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Legislature intended to create three categories of juvenile offenders subject to varying degrees of accountability. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, aff'd in part, rev'd in part, 2006-NMSC-030, 140 N.M. 24, 139 P.3d 184. Constitutionality of excluding serious youthful offenders convicted of first-degree felony murder from receiving an amenability hearing. — Where defendant was charged and convicted of three counts of first-degree felony murder and conspiracy to commit aggravated burglary, based on evidence that defendant, who was sixteen years old at the time, killed three members of a family with a pickaxe after he and two co- conspirators planned to burglarize the family in order to get money, and where, prior to sentencing, defendant filed a motion arguing that the constitutional prohibition against cruel and unusual punishment and the constitutional guarantee of equal protection require an amendability hearing in conjunction with the court's sentencing, defendant's constitutional rights were not violated by being sentenced without an amenability hearing, because cruel and unusual punishment jurisprudence does not guarantee an amenability hearing to juveniles simply because they are juveniles, and defendant failed to show that the legislature's statutory distinction is unsupported by a firm rationale or evidence in the record. State v. Ortiz, 2021-NMSC-029. "Serious youthful offender". — This section clearly expresses a legislative intent to treat those children charged with first degree murder differently than other children, even if ultimately those children are not found guilty on the first degree murder charge. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86. Intent of the legislature. — The legislature intended to treat children charged with first degree murder as adults, not as delinquent children. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86. The right to be treated as a child is a statutory, not a constitutional, right. Therefore, it is within the purview of the legislature to decide that children initially accused of first degree murder, even if found not guilty of that charge, may be sentenced as adults for other crimes. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474. Conviction of crime necessary prerequisite to determination of delinquency. — It is a fundamental right of a party to be convicted of a crime, which is a necessary prerequisite to a determination of delinquency, based upon evidence of the elements of the crime, and in a prosecution for a violation of Section 30-31-23 NMSA 1978, the state must prove that the respondents had knowledge of the presence and character of the item possessed; a degree of furtiveness on the parts of juvenile respondents, in doing their smoking and passing a pipe around between buildings while changing classes, in light of a school regulation prohibiting the smoking of tobacco, was not conduct sufficient to imply that the smokers knew the character of the substance they were using. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248. Curfew ordinance not within definition. — A village curfew ordinance forbidding any juvenile under the age of 18 years to be upon the streets between certain hours unless accompanied by a parent or guardian does not come within the purview of the definition of a delinquent act since the ordinance relates only to juveniles under the age of 18 years. In re Doe, 1975-NMCA-048, 87 N.M. 466, 535 P.2d 1092, rev'd on other grounds sub nom. State v. Doe, 1975-NMSC-034, 88 N.M. 137, 537 P.2d 1399. Sentencing as adult for unlisted crime. — A juvenile who is adjudicated for any of the offenses listed under Subsection I (now J) of this section may be subject to adult sanctions under Section 32A-2-20 NMSA 1978 for any other offense in the same case. State v. Montano, 1995-NMCA-065, 120 N.M. 218, 900 P.2d 967, cert. denied, 120 N.M. 68, 898 P.2d 120. Prosecution as youthful offender for misdemeanor aggravated battery. — There is no incongruity or injustice in the legislature's decision to include misdemeanor aggravated battery in the list of offenses in Subsection I, or to exclude manslaughter and certain sexual assaults therefrom; therefore, prosecution of a juvenile as a youthful offender for misdemeanor aggravated battery was proper. State v. Michael S., 1995- NMCA-112, 120 N.M. 617, 904 P.2d 595 (decided under prior law). Allegation of delinquency sufficient. — Petition was not jurisdictionally defective for failure to allege that defendant was in need of care or rehabilitation since it alleged defendant was a delinquent child, which was defined to mean a child who has committed a delinquent act and is in need of care or rehabilitation. Doe v. State, 1976- NMCA-002, 88 N.M. 627, 545 P.2d 93 (decided under prior law). Probation order void without finding of need of care. — The children's court order which placed a child on probation without a finding that the child was in need of care or rehabilitation was unauthorized and void; probation is authorized for a child found to be delinquent, and a child is not delinquent unless in need of care or rehabilitation. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948 (decided under prior law). If no finding of delinquency, then no diagnostic evaluation. — Although a child was found to have committed delinquent acts, there was no finding that the child was in need of care or rehabilitation, or a finding that the child was a delinquent child, and thus the children's court lacked authority to order a diagnostic evaluation. State v. Doe, 1977- NMCA-023, 90 N.M. 249, 561 P.2d 948 (decided under prior law). Delinquent child allegation improper where charge for possession of liquor. — The act of possession of alcoholic beverages with which a 16-year-old child was charged could be characterized as a delinquent act and the allegation of delinquent child seemed proper, since an adult between the ages of 18 and 21 may under certain circumstances be guilty of a crime when in possession of alcoholic beverages. However, it cannot apply to any minor under the age of 18 under the Children's Code since the children's court has exclusive jurisdiction of any illegal act committed by a child under the age of 18 and it is not considered a crime, unless there is a specific exception made in the Code itself. State v. Doe, 1975-NMSC-034, 88 N.M. 137, 537 P.2d 1399 (decided under prior law). Probable cause of possession of alcohol. — Probable cause to believe that a child wrongfully possessed or consumed alcohol sufficient to justify an arrest and warrantless search was not shown by the fact that the child's friend smelled of alcohol, or by the child's admission that he consumed a beer outside of the officer's presence. State v. Tywayne, 1997-NMCA-015, 123 N.M. 42, 933 P.2d 251, cert. denied, 123 N.M. 83, 934 P.2d 277. Magistrate and municipal court jurisdiction. — It appears that municipal and magistrate courts can exercise jurisdiction over children for traffic offenses which are not designated delinquent acts under the Children's Code. 1972 Op. Att'y Gen. No. 72- 34. Law reviews. — For note, "State v. Muniz: Authorizing Adult Sentences of Juveniles Absent a Conviction that Authorizes an Adult Sentence", see 35 N.M.L. Rev. 229 (2005). For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules", see 6 N.M.L. Rev. 331 (1976). 32A-2-4. Detention facilities; standards; reports; appeals. A. The department shall promulgate updated standards for all detention facilities, including standards for site, design, construction, equipment, care, program, personnel and clinical services. The department shall certify as approved all detention facilities in the state meeting the standards promulgated. The department may establish by rule appropriate procedures for provisional certification and the waiving of any of its standards for facilities in existence at the time of the adoption of the standards, except that it shall not allow waiver of any standard pertaining to adequate health and safety protection of the residents and staff of the facility. No child shall be detained in a detention facility unless it is certified as approved by the department, except as otherwise provided in Chapter 32A, Article 2 NMSA 1978. B. The department shall inspect all detention facilities in the state at least once each twelve months and shall require those reports it deems necessary from detention facilities in a form and containing the information determined by the department. If as the result of an inspection a certified detention facility is determined as failing to meet the required standards, its certification is subject to revocation or refusal for renewal by the department. C. The department shall promulgate rules establishing procedures that provide for prior notice and public hearings on detention facilities' standards adoption and changes. The department shall also promulgate rules establishing procedures for facility certification, renewal of certification, refusal to renew certification and revocation of certification. The procedures adopted on these matters shall provide for adequate prior notice of intended action by the department, opportunity for the aggrieved person to have an administrative hearing and written notification of the administrative decision. Rules promulgated under this subsection shall not be effective unless filed in accordance with the State Rules Act [Chapter 14, Article 4 NMSA 1978]. D. Any person aggrieved by an administrative decision of the department rendered under the provisions of this section may petition for the review of the administrative decision by appealing to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978. E. After January 1, 1994, no state or county detention facility shall hold juveniles sentenced by a federal court, unless the facility meets state standards promulgated by the department. F. A juvenile detention facility certified by the department shall comply with the daily reporting requirement for children in detention, including reports on the length of stay for each child. This information shall be reported as required by the department. History: 1978 Comp., § 32A-2-4, enacted by Laws 1993, ch. 77, § 33; 1998, ch. 55, § 42; 1999, ch. 265, § 44; 2009, ch. 239, § 11. ANNOTATIONS The 2009 amendment, effective July 1, 2009, added Subsection F. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 1999 amendment, effective July 1, 1999, substituted "Section 39-3-1.1" for "Section 12-8A-1" in Subsection D. The 1998 amendment, effective September 1, 1998, in the section heading, inserted "; appeals"; in Subsection A, substituted "Chapter 32A, Article 2 NMSA 1978" for "this article"; in Subsection C, substituted "facilities'" for "facilities"; and rewrote Subsection D. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-6 NMSA 1978 have been included in the annotations to this section. Legislative intent. — The provisions are clear - no child shall be detained in a detention facility unless it has met all standards and is certified as approved by the youth authority (now children, youth and families department). To be so certified and approved, a detention facility must provide detained children with complete sight and sound segregation from adult inmates. A waiver of these requirements by the child and his parents would not relieve the youth authority (now children, youth and families department) of its statutory duty to enforce its certification standards as required by law. 1990 Op. Att'y Gen. No. 90-16. Child in need of supervision may not be held in jail. — A child alleged to be delinquent or in need of supervision, and the child's parents, cannot sign a waiver which would allow the child to be detained pending final adjudication in a local jail facility with total sight and only partial sound segregation from adult jail detainees. 1990 Op. Att'y Gen. No. 90-16. Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 58 et seq. 32A-2-4.1. Adult jails and lockups used as temporary holding facilities; reports. A. A child arrested and detained for an alleged delinquent act may be temporarily held in an adult jail or lockup for no longer than six hours. A child who is detained in an adult jail or lockup shall be placed in a setting that is physically segregated by sight and sound from adult offenders. After six hours, the child may be placed or detained pursuant to the provisions of Section 32A-2-12 NMSA 1978. B. An adult jail or lockup used as a temporary holding facility for alleged delinquent offenders shall file an annual report regarding its compliance with federal requirements. The juvenile justice advisory committee and the department shall determine the format of the annual reports. History: 1978 Comp., § 32A-2-4.1, as enacted by Laws 2009, ch. 239, § 12. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made this section effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-2-5. Juvenile probation and parole services; establishment; juvenile probation and parole officers; powers and duties. A. Juvenile probation and parole services shall be provided by the department. B. To carry out the objectives and provisions of the Delinquency Act, but subject to its limitations, the department has the power and duty to: (1) receive and examine complaints and allegations that a child is a delinquent child for the purpose of considering beginning a proceeding pursuant to the provisions of the Delinquency Act; (2) make case referrals for services as appear appropriate or desirable; (3) make predisposition studies and assessments and submit reports and recommendations to the court; (4) supervise and assist a child placed on probation or supervised release or under supervision by court order or by the department; (5) give notice to any individual who has been the subject of a petition filed pursuant to the provisions of the Delinquency Act of the sealing of that individual's records in accordance with that act; (6) informally dispose of up to three misdemeanor charges brought against a child within two years; (7) give notice to the children's court attorney of the receipt of any felony complaint and of any recommended adjustment of such felony complaint; (8) identify an Indian child for the purpose of contacting the Indian child's tribe in delinquency cases; and (9) upon receipt of a referral, contact an Indian child's tribe to consult and exchange information for the purpose of collaborating on appropriate referrals for services along with case planning throughout the period of involvement with juvenile justice services. C. A juvenile probation and parole officer does not have the powers of a law enforcement officer. A juvenile probation and parole officer may take into physical custody and place in detention, subject to application of a detention risk assessment instrument, a child who is under supervision as a delinquent child or as a youthful offender when there is reasonable cause to believe that the child has violated the conditions of the child's probation or that the child may leave the jurisdiction of the court. Taking a child into custody under this subsection is subject to and shall proceed in accordance with the provisions of the Delinquency Act relating to custody and detention procedures and criteria. History: 1978 Comp., § 32A-2-5, enacted by Laws 1993, ch. 77, § 34; 1995, ch. 206, § 11; 2003, ch. 225, § 4; 2009, ch. 239, § 13; 2019, ch. 125, § 2. ANNOTATIONS The 2019 amendment, effective June 14, 2019, required the children, youth and families department, upon receipt of a referral, to consult and exchange information with an Indian child's tribe throughout the minor's involvement with juvenile justice services; and in Subsection B, deleted former Paragraph B(9) and added a new Paragraph B(9). The 2009 amendment, effective July 1, 2009, in Subsection B, Paragraph (4), deleted "parole" and added " supervised release", and deleted "juvenile parole board" and added "department". Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2003 amendment, effective July 1, 2003, in Subsection C, inserted "subject to application of a detention risk assessment instrument" following "place in detention", and inserted "or as a youthful offender" following "a delinquent child". The 1995 amendment, effective July 1, 1995, in Subsection B, substituted "informally dispose of" for "expunge" in Paragraph (6) and inserted "Indian" preceding "child's" in Paragraph (8), and in Subsection C, deleted "or parole" following "conditions of his probation" in the second sentence. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-7 NMSA 1978 have been included in the annotations to this section. Authority to petition for parole extension. — Probation officer has authority to petition the court for extension of the period of parole supervision of a child where such action is necessary to safeguard the welfare of the child or the public interest. State v. Doe, 1979-NMCA-024, 92 N.M. 589, 592 P.2d 189. Juvenile may be taken into custody when a police officer or probation officer believes that the juvenile's surroundings are such as to endanger his (the juvenile's) welfare. 1962 Op. Att'y Gen. No. 62-107 (rendered under prior law). Police may not "pick up" juvenile probation violators on orders of probation officers. — Municipal police officers may not pick up delinquent children for suspected probation violations pursuant to "pick up" orders issued by juvenile probation officers since such orders are not warrants, directives of a law enforcement official or valid process of the court. 1984 Op. Att'y Gen. No. 84-1. Not considered policeman for social security coverage. — The primary duties of a probation officer, as evidenced by the enumeration in the statute, are to supervise and attempt to rehabilitate both minor and adult offenders when placed on probation by the court. This is not normally thought to be the duty of a policeman, therefore, a probation officer is not to be considered a policeman for purposes of social security coverage. 1960 Op. Att'y Gen. No. 60-223. Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 54 et seq. 43 C.J.S. Infants § 34. 32A-2-6. Transfer of jurisdiction over child from other tribunals to court. A. If it appears to a tribunal in a criminal matter that the defendant was under the age of eighteen years at the time the offense charged was alleged to have been committed and the offense charged is a delinquent act pursuant to the provisions of the Delinquency Act, the tribunal shall promptly transfer jurisdiction of the matter and the defendant to the court together with a copy of the accusatory pleading and other papers, documents and transcripts of testimony relating to the case. The tribunal shall not transfer a serious youthful offender. B. Upon transfer the court shall have exclusive jurisdiction over the proceedings and the defendant. The transferring tribunal shall order that the defendant promptly be taken to the court, or taken to a place of detention designated by the court, or released to the custody of a parent, guardian, custodian or other person legally responsible for the defendant to be brought before the court at a time designated by the court. Upon transfer to the court a petition shall be prepared and filed in the court in accordance with the provisions of the Delinquency Act. If the defendant is not a child at the time of transfer the court retains jurisdiction over the matter only until disposition is made by the court. History: 1978 Comp., § 32A-2-6, enacted by Laws 1993, ch. 77, § 35. ANNOTATIONS Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-11 NMSA 1978 have been included in the annotations to this section. Intent of section. — The legislature in enacting former Sections 32-1-11 and 32-1-30 NMSA 1978 intended to create a mechanism which would allow both the children's court and the district court to exercise full subject matter jurisdiction in criminal matters. State v. Garcia, 1979-NMSC-049, 93 N.M. 51, 596 P.2d 264 (decided under prior law). Section requires district court to send matter to children's court if defendant was not adult when the offense charged allegedly was committed. State v. Doe, 1980- NMCA-147, 95 N.M. 88, 619 P.2d 192. Remand from state district court to children's court. — On habeas corpus petitions by state prisoners, the federal courts are concerned only with basic constitutional questions, and whether a juvenile under New Mexico law is entitled to a remand from the state district court to the juvenile (now children's) court because of defects in the waiver of jurisdiction presents a procedural question ordinarily to be determined by the New Mexico courts. Salazar v. Rodriguez, 371 F.2d 726 (10th Cir. 1967). Traffic offenses not deemed delinquent acts. — It appears that municipal and magistrate courts can exercise jurisdiction over children for traffic offenses which are not designated delinquent acts under the Children's Code. 1972 Op. Att'y Gen. No. 72- 34. Extradition of juveniles from another state. 1973 Op. Att'y Gen. No. 73-14. (now Section 32A-10-1 NMSA 1978.) Am. Jur. 2d, A.L.R. and C.J.S. references. — Jurisdiction of another court over child as affected by assumption of jurisdiction by juvenile court, 11 A.L.R. 147, 78 A.L.R. 317, 146 A.L.R. 1153. Authority of court to order juvenile delinquent incarcerated in adult penal institution, 95 A.L.R.3d 568. Juvenile's guilty or no contest plea in adult court as waiver of defects in transfer or certification proceedings, 74 A.L.R.5th 453. 32A-2-7. Complaints; referral; preliminary inquiry; notice; time waiver. A. Complaints alleging delinquency shall be referred to probation services, which shall conduct a preliminary inquiry to determine the best interests of the child and of the public with regard to any action to be taken. B. During the preliminary inquiry on a delinquency complaint, the matter may be referred to another appropriate agency and conferences may be conducted for the purpose of effecting adjustments or agreements that will obviate the necessity for filing a petition. At the commencement of the preliminary inquiry, the parties shall be advised of their basic rights pursuant to Section 32A-2-14 NMSA 1978, and no party may be compelled to appear at any conference, to produce any papers or to visit any place. The child shall be informed of the child's right to remain silent. The preliminary inquiry shall be completed within the time limits set forth in the Children's Court Rules. C. Prior to a preliminary inquiry being conducted with a child who is detained, the child's parent, guardian or custodian or the child's attorney shall be given reasonable notice by the juvenile probation and parole officer and an opportunity to be present at the preliminary inquiry. If a child is not detained, the preliminary inquiry shall be conducted within thirty days of receipt of the referral from law enforcement. The thirty- day time period may be extended upon a determination by the department that an extension is necessary to conduct a thorough preliminary inquiry and that the extension is not prejudicial to the best interests of the child. D. When a child is in detention or custody and the children's court attorney does not file a petition within the time limits authorized by the Children's Court Rules, the child shall be released immediately. If a child is not detained and a determination is made to file a petition, the petition shall be filed within sixty days of completion of the preliminary inquiry, unless a motion is granted to extend the time limit for good cause shown. If a child is not in custody or detention, a petition shall not be dismissed for failure to comply with the time limit set forth in this subsection unless there is a showing of prejudice to the child. E. After completion of the preliminary inquiry on a delinquency complaint involving a misdemeanor, probation services may notify the children's court attorney and recommend an appropriate disposition for the case. If the child has been referred for three or more prior misdemeanors within two years of the instant offense, probation services shall notify the children's court attorney and recommend an appropriate disposition for the case. F. Probation services shall notify the children's court attorney of the receipt of any complaint involving an act that constitutes a felony under the applicable criminal law. Probation services shall also recommend a disposition to the children's court attorney. G. The child, through counsel, and the children's court attorney may agree, without judicial approval, to a waiver of time limitations imposed after a petition is filed. A time waiver defers adjudication of the charges. The children's court attorney may place restrictions on a child's behavior as a condition of a time waiver. If the child completes the agreed upon conditions and no new charges are filed against the child, the pending petition shall be dismissed. If the children's court attorney files a new petition against the child, the children's court attorney may proceed on both the original petition and the new charges. The department shall become a party if probation services are requested as a condition of the time waiver. History: 1978 Comp., § 32A-2-7, enacted by Laws 1993, ch. 77, § 36; 2005, ch. 189, § 12. ANNOTATIONS The 2005 amendment, effective June 17, 2005, in Subsection B, provided that in a preliminary inquiry the child shall be informed of the child's right to remain silent; added Subsection C, which provided that prior to a preliminary inquiry concerning a child who is detained, the child's parent, guardian or custodian or attorney shall be given notice by the juvenile probation and parole officer and an opportunity to be present; that if the child is not detained, the inquiry shall be conducted within thirty days after receipt of referral from law enforcement; and that the thirty day period may be extended if the extension is necessary to conduct a thorough inquiry and the extension is not prejudicial to the child; and in Subsection D, provided that if a child is not detained and a determination is made to file a petition, the petition shall be filed within sixty days after completion of the preliminary inquiry, unless a motion is granted to extend the time and that if a child is not in custody or detention, a petition shall not be dismissed for failure to comply with the time limit unless the child is prejudiced. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-14 NMSA 1978 have been included in the annotations to this section. Legislative intent. — The legislature intended that there be prompt adjudication of cases under the Children's Code. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248. Purpose of preliminary inquiry is not to determine guilt or innocence, but to afford probation services insight into the need for filing a petition. State v. Doe, 1977-NMCA- 124, 91 N.M. 232, 572 P.2d 960, cert. denied, 91 N.M. 249, 572 P.2d 1257. There can be valid preliminary inquiry without conference, and therefore without an initial conference involving the child, the parents and probation services. State v. Doe, 1977-NMCA-124, 91 N.M. 232, 572 P.2d 960, cert. denied, 91 N.M. 249, 572 P.2d 1257. Best interests determination involves exercise of discretion. — A best interest determination, whether by probation services, the children's court attorney, or both, involves the exercise of discretion. State v. Doe, 1982-NMCA-065, 97 N.M. 792, 643 P.2d 1244. Social determination, not a legal one. — The best interests determination as to the filing of a delinquency petition is a social determination, not a legal determination. State v. Doe, 1982-NMCA-065, 97 N.M. 792, 643 P.2d 1244. Habeas corpus writ additional means of bringing child before court. — The statutory remedy for bringing dependent and neglected children before the district court was not exclusive and the court could issue a writ of habeas corpus upon application by state department of public welfare (now health care authority department) to obtain custody of an alleged dependent and neglected child. New Mexico Dep't of Pub. Welfare v. Cromer, 1948-NMSC-046, 52 N.M. 331, 197 P.2d 902 (decided under prior law). Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 62 et seq. Truancy as indicative of delinquency or incorrigibility, justifying commitment of infant or juvenile, 5 A.L.R.4th 1211. Defense of infancy in juvenile delinquency proceedings, 83 A.L.R.4th 1135. 43 C.J.S. Infants §§ 93, 99. 32A-2-8. Petition; authorization to file. A petition alleging delinquency shall not be filed in delinquency proceedings unless the children's court attorney, after consulting with probation services, has determined and endorsed upon the petition that the filing of the petition is in the best interest of the public and the child. The children's court attorney shall furnish legal services in connection with the authorization and preparation of the petition. History: 1978 Comp., § 32A-2-8, enacted by Laws 1993, ch. 77, § 37. ANNOTATIONS Cross references. — For the filing of petitions in delinquency proceedings, see Rule 10-211 NMRA. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-17 NMSA 1978 have been included in the annotations to this section. Filing of petition sufficiently vests jurisdiction in children's court over persons alleged to have committed delinquent acts while under the age of 18, regardless of their ages at the time the charges are filed. State v. Doe, 1980-NMCA-147, 95 N.M. 88, 619 P.2d 192. Petition complies. — A petition, signed by the children's court attorney stating that probation services has determined that the best interest of the child and the public requires that a petition, as authorized by former Section 32-1-14 NMSA 1978, be filed, complied with former Section 32-1-17 NMSA 1978 and was sufficient to satisfy the requirement of a "finding" in Rule 22(a), N.M.R. Child. Ct. (now Rule 10-203(a)). State v. Doe, 1978-NMCA-099, 92 N.M. 198, 585 P.2d 342. Noncompliance of petition. — The district court erred in applying the provisions of the probate court to appellees' application for guardianship and in adjudicating the child to be neglected under procedural provisions outside the provisions of the Children's Code, because the petition alleging neglect, seeking removal of the child from the mother's custody and the appointment of guardians did not comply with the provisions of former Section 32-1-18 NMSA 1978 (now Section 32A-1-10 NMSA 1978) and Section 32-1- 17B NMSA 1978 (now Section 32A-2-8 NMSA 1978). In re Guardianship of Lupe C., 1991-NMCA-050, 112 N.M. 116, 812 P.2d 365. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 52 et seq. 43 C.J.S. Infants §§ 93, 99. 32A-2-9. Taking into custody. A child may be taken into custody: A. pursuant to the order of the court issued because a parent, guardian or custodian fails when requested to bring the child before the court after having promised to do so when the child was delivered upon release from custody; B. pursuant to the laws of arrest for commission of a delinquent act; or C. by a juvenile probation and parole officer proceeding pursuant to the provisions of Section 32-2-5 [32A-2-5] NMSA 1978. History: 1978 Comp., § 32A-2-9, enacted by Laws 1993, ch. 77, § 38. ANNOTATIONS Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-22 NMSA 1978 have been included in the annotations to this section. Taking juvenile into custody is not to be termed an arrest. 1960 Op. Att'y Gen. No. 60-166. Filing of petition necessary before detention. — A juvenile may not be picked up or detained without some person first having caused to be filed a petition alleging the facts causing the juvenile to come within the purview of the Juvenile (now Children's) Code, and then only upon order of the court. 1962 Op. Att'y Gen. No. 62-32. Police not prevented from taking juvenile while upon school premises. — The statutes governing the duties of teachers, county boards of education, county school superintendents and the state board of education [public education department] do not impose the obligation or grant the power to prevent the police taking juveniles into custody while upon school premises. 1960 Op. Att'y Gen. No. 60-166 (see 1964 Op. Att'y Gen. No 64-56). Officers of the police, sheriff's department or juvenile (now children's) court have authority to take children into custody while they are on school grounds for the purpose of questioning. 1960 Op. Att'y Gen. No. 60-166 (see 1964 Op. Att'y Gen. No 64-56). Circumstances where officer cannot detain juvenile. — A law enforcement officer cannot detain or pick up a juvenile while on school grounds or any where else for the purpose, for instance, of questioning concerning an offense in which the juvenile may be implicated in the absence of a warrant or circumstances or surroundings which indicate that the juvenile's welfare is endangered, or in the absence of the juvenile being found violating some statute or ordinance. 1964 Op. Att'y Gen. No. 64-56. Police may not "pick up" juvenile probation violators on orders of probation officers. — Municipal police officers may not pick up delinquent children for suspected probation violations pursuant to "pick up" orders issued by juvenile probation officers since such orders are not warrants, directives of a law enforcement official or valid process of the court. 1984 Op. Att'y Gen. No. 84-01. Detention until bond posted violates provisions. — The action of the police, acting unilaterally in detaining a child in jail for violating a city's curfew ordinance until his parents post bond, is contrary to the Children's Code. 1975 Op. Att'y Gen. No. 75-58. Extradition of juveniles from another state. 1973 Op. Att'y Gen. No. 73-14 (see now Section 32A-10-1 NMSA 1978). Law reviews. — For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 62 et seq. Power of court or other public agency to order medical treatment for child over parental objections not based on religious grounds, 97 A.L.R.3d 421. 32A-2-10. Release or delivery from custody. A. A person taking a child into custody shall, with all reasonable speed: (1) release the child to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian and issue verbal counsel or warning as may be appropriate; (2) release the child to the child's parent, guardian or custodian or an adult authorized to sign on behalf of the child's parent, guardian or custodian upon written promise to bring the child before the court when requested by the court. If the parent, guardian or custodian or an adult authorized to sign on behalf of the child's parent, guardian or custodian fails, when requested, to bring the child before the court as promised, the court may order the child taken into custody and brought before the court; (3) deliver the child to a place of detention as provided in Section 32A-2-12 NMSA 1978; (4) deliver the child to a medical facility, if available, if the child is believed to be suffering from a serious illness that requires prompt treatment or prompt diagnosis; (5) deliver the child to an evaluation facility, if available, if the person taking the child into custody has reasonable grounds to believe the child presents a likelihood of serious harm to the child's self or others or is suffering from some other serious mental condition or illness that requires prompt treatment or prompt diagnosis; or (6) deliver the child to a center or organization that the court or the department recognizes as an alternative to secure detention. B. When an alleged delinquent child is delivered to a place of detention or a center or organization recognized as an alternative to secure detention as provided in Section 32A-2-12 NMSA 1978, only a department employee or a trained county detention professional designated by the department may place the child in detention or with a center or organization recognized as an alternative to secure detention in accordance with the criteria for detention set forth in Section 32A-2-11 NMSA 1978. If the criteria for detention of an alleged delinquent child are not met, the child shall be released from custody. C. A child under the age of twelve shall not be held in detention. If a child under the age of twelve poses a substantial risk of harm to the child's self or others, a peace officer may detain and transport that child for emergency mental health evaluation and care in accordance with Section 32A-6A-19 NMSA 1978. D. If a child is taken into custody and is not released to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian, the person taking the child into custody shall give written notice thereof as soon as possible, and in no case later than twenty-four hours, to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian and to the court, together with a statement of the reason for taking the child into custody. E. In all cases when a child is taken into custody, the child shall be released to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian in accordance with the conditions and time limits set forth in the Children's Court Rules. History: 1978 Comp., § 32A-2-10, enacted by Laws 1993, ch. 77, § 39; 2003, ch. 225, § 5; 2005, ch. 189, § 13.; 2009, ch. 239, § 14; 2023, ch. 125, § 1. ANNOTATIONS The 2023 amendment, effective June 16, 2023, raised the age limit at which a child may be held in custody to twelve years of age or older; and in Subsection C, after each occurrence of "age of", changed "eleven" to "twelve". The 2009 amendment, effective July 1, 2009, in Paragraph (1) of Subsection A, after "guardian or custodian", added "or an adult authorized by the child’s parent, guardian or custodian"; in Paragraph (2) of Subsection A, after "guardian or custodian", added "or an adult authorized to sign on behalf of the child’s parent, guardian or custodian"; added Paragraph (6) of Subsection A; in Subsection B, after "a place of detention" added "or a center or organization recognized as an alternative to secure detention" and after "place the child in detention", added "or with a center or organization recognized as an alternative to secure detention"; in Subsection C, changed the reference from Section 32A-6-11 NMSA 1978 to Section 32A-6A-19 NMSA 1978; in Subsection D, in two places, after "guardian or custodian", added "or an adult authorized by the child’s parent, guardian or custodian"; and in Subsection E, after "guardian or custodian", added "or an adult authorized by the child’s parent, guardian or custodian". Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, added Subsection D to provide that a child under the age of eleven shall not be held in detention and that if a child under eleven poses a risk or harm to himself or others, a peace officer may detain and transport the child for emergency mental health evaluation and care. The 2003 amendment, effective July 1, 2003, substituted "Section 32A-2-12" for "Section 32-2-11" in Paragraph A(3); rewrote Subsection B; and deleted "and Forms" at the end of Subsection D. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-23 NMSA 1978 have been included in the annotations to this section. Scope of custody. — While there appears to be no doubt that juveniles may be taken into custody for the purpose of questioning, care must be exercised as to what is done with them after the taking of custody, particularly in view of the provision of the law that a juvenile is not to be unduly detained in a prison or jail. Furthermore, in most cases, the juvenile should be released to the custody of his parent or other responsible adult until his case is to be disposed of. 1960 Op. Att'y Gen. No. 60-166 (see 1964 Op. Att'y Gen. No. 64-56). No detention in absence of court order or probation determination. — In the absence of a court order, detention was not permitted by statute in the absence of the juvenile probation office's determination that it is warranted. Thus the city police, acting on their own, may not detain a child. 1975 Op. Att'y Gen. No. 75-58. No bail or bond as of right. — Under the Juvenile (now Children's) Code, a juvenile is not entitled to bail nor is he entitled, as a matter of right, to bond on supersedeas after a determination has been made that he is a juvenile delinquent and a sentence of detention has been passed against him. Of course, so far as the question of supersedeas bond is concerned, the matter would be under the rules of the court and discretionary with the court. 1957 Op. Att'y Gen. No. 57-215. Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — Bail: right of bail in proceedings in juvenile courts, 53 A.L.R.3d 848. 32A-2-11. Criteria for detention of children. A. Unless ordered by the court pursuant to the provisions of the Delinquency Act, a child taken into custody for an alleged delinquent act shall not be placed in detention unless a detention risk assessment instrument is completed and a determination is made that the child: (1) poses a substantial risk of harm to himself; (2) poses a substantial risk of harm to others; or (3) has demonstrated that he may leave the jurisdiction of the court. B. The criteria for detention in this section shall govern the decisions of all persons responsible for determining whether detention is appropriate prior to a detention hearing, based upon review of the detention risk assessment instrument. C. The department shall develop and implement a detention risk assessment instrument. The department shall collect and analyze data regarding the application of the detention risk assessment instrument. On January 1, 2004, the department shall provide the legislature with a written report with respect to its collection and analysis of data regarding the application of the detention risk assessment instrument. History: 1978 Comp., § 32A-2-11, enacted by Laws 1993, ch. 77, § 40; 2003, ch. 225, § 6. ANNOTATIONS The 2003 amendment, effective July 1, 2003, rewrote the section. Detention at boys' school. — This statute does not preclude detention of a child at a boys' school pending an adjudicatory hearing on a delinquency petition; the purpose of the confinement determines whether a child is in detention or commitment at the school. State v. Anthony M., 1998-NMCA-065, 125 N.M. 149, 958 P.2d 107, cert. denied, 125 N.M. 145, 958 P.2d 103. School resource officer did not place child in "detention". — Where plaintiff, a middle-school student who was diagnosed with attention deficit hyperactivity disorder, was arrested and charged with interference with members of staff, public officials or general public pursuant to § 30-20-13(D) NMSA 1978 after going to his regularly scheduled class when he was scheduled for an in-school suspension, and where plaintiff claimed that defendant, the school resource officer violated this section, which dictates that a child taken into custody for an alleged delinquent act shall not be placed in detention unless a detention risk assessment instrument is completed and certain determinations are made, plaintiff's claims failed as a matter of law because defendant placed plaintiff into custody and was not responsible for deciding whether plaintiff would be placed into detention. Defendant, acting within the scope of his duties could not have violated any of plaintiff's rights under the Children's Code regarding detention. Castaneda v. City of Albuquerque, 276 F.Supp.3d 1152 (D.N.M 2016). Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — Authority of court to order juvenile delinquent incarcerated in adult penal institution, 95 A.L.R.3d 568. Truancy as indicative of delinquency or incorrigibility, justifying commitment of infant or juvenile, 5 A.L.R.4th 1211. Defense of infancy in juvenile delinquency proceedings, 83 A.L.R.4th 1135. 32A-2-12. Placement or detention. A. A child alleged to be a delinquent child may be placed or detained, pending a court hearing, in any of the following places: (1) a licensed foster home or a home otherwise authorized under the law to provide foster or group care; (2) a facility operated by a licensed child welfare services agency; (3) a shelter-care facility provided for in the Children's Shelter Care Act [32A- 9-1 to 32A-9-7 NMSA 1978] that is in compliance with all standards, conditions and regulatory requirements and that shall be considered a temporary placement subject to judicial review within thirty days of placement; (4) a detention facility certified by the department for children alleged to be delinquent children; (5) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court and that meets the standards for detention facilities pursuant to the Children's Code and federal law; or (6) the child's home or place of residence, under conditions and restrictions approved by the court. B. A child alleged to be a youthful offender may be detained, pending a court hearing, in any of the following places: (1) a detention facility, licensed by the department, for children alleged to be delinquent children; or (2) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent children may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court and that meets the standards for detention facilities pursuant to the Children's Code and federal law. C. A child adjudicated as a youthful offender who is violent toward staff or other residents in a detention facility may be transferred and detained, pending a court hearing, in a county jail. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of the child's age, and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult. D. A child who has previously been incarcerated as an adult or a person eighteen years of age or older shall not be detained in a juvenile detention facility or a facility for the long-term care and rehabilitation of delinquent children, but may be detained in a county jail. A child shall not be transferred to a county jail solely on the basis of attaining the age of eighteen while detained in a juvenile detention facility. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of the child's age, and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult. E. A child alleged to be a serious youthful offender may be detained pending a court hearing in any of the following places, prior to arraignment in metropolitan, magistrate or district court: (1) a detention facility, licensed by the department, for children alleged to be delinquent children; (2) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent children may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court that meets the standards for detention facilities pursuant to the Children's Code and federal law; or (3) a county jail, if a facility in Paragraph (1) or (2) of this subsection is not appropriate. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of the child's age and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult. F. When a person who is eighteen years of age or older is taken into custody and transported to an adult facility on a juvenile warrant or an adult warrant or other adult charges and an outstanding juvenile warrant exists, notice shall be given to the children's court attorney and the juvenile probation and parole office in the jurisdiction where the juvenile warrant was issued within one day of the person being taken into custody. The juvenile probation and parole office shall give notice that the person has been taken into custody to the children's court judge and the attorney who represented the person in the juvenile proceeding. G. In addition to the judicial review required by Paragraph (3) of Subsection A of this section, a child detained in an out-of-home placement pursuant to this section may request judicial review of the appropriateness of the placement. History: 1978 Comp., § 32A-2-12, enacted by Laws 1993, ch. 77, § 41; 2003, ch. 225, § 7; 2005, ch. 189, § 14; 2009, ch. 239, § 15. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Paragraph (3) of Subsection A, after "Children’s Shelter Care Act", deleted "or a detention facility certified by the department for children alleged to be delinquent children" and added the remainder of the sentence; added Paragraph (4) of Subsection A; in Subsection D, added the second sentence; and added Subsection G. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, added Subsection F, which provided that when a person who is eighteen years of age or older is taken into custody and transported to an adult facility and an outstanding warranty exists, notice shall be given to the children’s court attorney and the juvenile probation and parole officer in the jurisdiction where the warrant was issued within one day after the person is taken into custody and that the juvenile probation and parole officer shall give notice to the children's court judge and the person's attorney. The 2003 amendment, effective July 1, 2003, in Paragraphs A(4) and E(2), substituted "pursuant to Section 32A-2-19" for "under Section 32-2-19" following "may be confined", substituted "pursuant to" for "under" following "for detention facilities"; added Paragraph A(5); added present Subsections B to D and redesignated former Subsection B as Subsection E; in Paragraph E(3), substituted "jail" for "facility" following "director of the", substituted "inmates" for "detainees" following "to victimization by", and substituted "provision of protective measures shall not" for "no such protective measure should" following "However". Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-25 NMSA 1978 have been included in the annotations to this section. Child in need of supervision may not be held in jail. — Under no circumstances may a child in need of supervision be held in a jail or other facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged to be delinquent children. This prohibition includes jail lock-up, drunk tanks or county jails. Every effort should be made to expedite transfer of physical custody of the child in need of supervision to a suitable shelter-care facility. 1979 Op. Att'y Gen. No. 79-08. Effect of waiver. — A child alleged to be delinquent or in need of supervision, and the child's parents, cannot sign a waiver which would allow the child to be detained pending final adjudication in a local jail facility with total sight and only partial sound segregation from adult jail detainees. 1990 Op. Att'y Gen. No. 90-16. Detention of child until bond posted not permitted. — City police acting unilaterally may not detain a child in jail until his parents post bond. In the absence of a court order or a determination by the juvenile probation office, no detention is permitted. 1975 Op. Att'y Gen. No. 75-58. Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — Authority of court to order juvenile delinquent incarcerated in adult penal institution, 95 A.L.R.3d 568. 32A-2-13. Detention hearing required on detained children; probable cause determination; court determination; disposition. A. When a child who has been taken into custody is not released but is detained: (1) a judicial determination of probable cause shall be made by a judge or special master or magistrate within forty-eight hours, including Saturdays, Sundays and legal holidays, except for children taken into custody under an arrest warrant pursuant to the Children's Court Rules [10-101 NMRA]. A statement by a law enforcement officer, which shall include the charges, may be the basis of a probable cause determination. The probable cause determination shall be nonadversarial, may be held in the absence of the child and counsel and may be conducted by telephone. If the court finds no probable cause to believe the child committed an offense, the child shall be released; (2) a petition shall be filed within twenty-four hours from the time the child is taken into custody, excluding Saturdays, Sundays and legal holidays, and if not filed within the stated time, the child shall be released; and (3) a detention hearing shall be held within twenty-four hours, excluding Saturdays, Sundays and legal holidays, from the time of filing the petition to determine whether continued detention is required pursuant to the criteria established by the Children's Code. At the request of any party, the court may permit a detention hearing to be conducted by appropriate means of electronic communication; provided that all hearings conducted by electronic means shall be recorded and preserved as part of the record, the child shall have legal representation present with the child, no plea shall be allowed to be taken via electronic communication and the court finds: (a) that undue hardship will result from conducting the hearing with all parties, including the child, present in the courtroom; and (b) that the hardship substantially outweighs any prejudice or harm to the child that is likely to result from the hearing being conducted by electronic means. B. The judge may appoint one or more persons to serve as special master on a full- or part-time basis for the purpose of holding detention hearings. A juvenile probation and parole officer shall not be appointed as a special master. The judge shall approve all contracts with special masters and shall fix their hourly compensation, subject to the approval of the director of the administrative office of the courts. C. Notice of the detention hearing, either oral or written, stating the time, place and purpose of the hearing shall be given by the person designated by the court to the child's parents, guardian or custodian, if they can be found, and to the child. The department shall be provided with reasonable oral or written notification and an opportunity to be heard. At any hearing held pursuant to this subsection, the department may appear as a party. D. At the commencement of the detention hearing, the judge or special master shall advise the parties of their basic rights provided in the Children's Code and shall appoint counsel, guardians and custodians, if appropriate. E. If the judge or special master finds that the child's detention is appropriate under the criteria established by the Children's Code, the judge or special master shall order detention in an appropriate facility in accordance with the Children's Code. F. If the judge or special master finds that detention of the child is not appropriate under the criteria established by the Children's Code, the judge or special master shall order the release of the child, but, in so doing, may order one or more of the following conditions to meet the individual needs of the child: (1) place the child in the custody of a parent, guardian or custodian or under the supervision of an agency agreeing to supervise the child; (2) place restrictions on the child's travel, association with other persons or place of abode during the period of the child's release; or (3) impose any other condition deemed reasonably necessary and consistent with the criteria for detaining children established by the Children's Code, including a condition requiring that the child return to custody as required. G. An order releasing a child on any conditions specified in this section may at any time be amended to impose additional or different conditions of release or to return the child to custody or detention for failure to conform to the conditions originally imposed. H. At the detention hearing, all relevant and material evidence helpful in determining the need for detention may be admitted by the judge or special master even though it would not be admissible in a hearing on the petition. I. If the child is not released at the detention hearing and a parent, guardian or custodian was not notified of the hearing and did not appear or waive appearance at the detention hearing, the judge or special master shall rehear the detention matter without unnecessary delay upon the filing of an affidavit stating the facts and a motion for rehearing. J. If a child is not released at the detention hearing, the child's detention may be subsequently reviewed by the court or the court may review the child's detention in conjunction with a pretrial conference. K. If a child is not placed within ten days after a disposition hearing, the child may be released and placed under appropriate supervision, so long as the child does not pose a flight risk or substantial risk of harm to the child's self or others. History: 1978 Comp., § 32A-2-13, enacted by Laws 1993, ch. 77, § 42; 2003, ch. 225, § 8; 2009, ch. 239, § 16. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Paragraph (3) of Subsection A, added the last sentence; and added Subparagraphs (a) and (b) of Paragraph (3) of Subsection A. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2003 amendment, effective July 1, 2003, deleted "and Forms" following "Children's Court Rules" in Paragraph A(1); substituted "twenty-four" for "forty-eight" following "be filed within" in Paragraph A(2); inserted "to meet the individual needs of the child" at the end of Subsection F; and added Subsections J and K. Grade court. — Where the grade court program conditions were laid out in the grade court order child signed and the detention sanction set out in the grade court order, by its terms, applied to violations of conditions of probation and not to conditions of release, once child accepted the conditions of release, the court had authority to order detention, based on his failure to comply with those conditions. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164. Subsection F(3) of this section must be read in correlation with Subsections 32A- 2-16 F and H NMSA 1978. To ignore it would leave children adjudicated but awaiting disposition without statutory protection as to what conditions may be imposed upon their release and the legislature had not intended such a result. State v. Steven B., 2004- NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164. Children’s court has authority to detain children who have been released while awaiting sentencing under this section. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164. Restriction on child’s travel or residence. — Although the disposition was not ordered pursuant to this section, this section does support the notion that placing restrictions on a child’s travel or place of residence is consistent with the Children’s Code. State v. Wacey C., 2004-NMCA-029, 135 N.M. 186, 86 P.3d 611. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980). 32A-2-14. Basic rights. A. A child subject to the provisions of the Delinquency Act is entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code, including rights provided by the Delinquency Act, except as otherwise provided in the Children's Code [32A-1-1 NMSA 1978]. B. If after due notice to the parent, guardian or custodian and after a hearing determining indigency, the parent, guardian or custodian is declared indigent by the court, the public defender shall represent the child. If the court finds that the parent, guardian or custodian is financially able to pay for an attorney but is unwilling to do so, the court shall order the parent, guardian or custodian to reimburse the state for public defender representation. C. No person subject to the provisions of the Delinquency Act who is alleged or suspected of being a delinquent child shall be interrogated or questioned without first advising the child of the child's constitutional rights and securing a knowing, intelligent and voluntary waiver. D. Before any statement or confession may be introduced at a trial or hearing when a child is alleged to be a delinquent child, the state shall prove that the statement or confession offered in evidence was elicited only after a knowing, intelligent and voluntary waiver of the child's constitutional rights was obtained. E. In determining whether the child knowingly, intelligently and voluntarily waived the child's rights, the court shall consider the following factors: (1) the age and education of the respondent; (2) whether the respondent is in custody; (3) the manner in which the respondent was advised of the respondent's rights; (4) the length of questioning and circumstances under which the respondent was questioned; (5) the condition of the quarters where the respondent was being kept at the time of being questioned; (6) the time of day and the treatment of the respondent at the time of being questioned; (7) the mental and physical condition of the respondent at the time of being questioned; and (8) whether the respondent had the counsel of an attorney, friends or relatives at the time of being questioned. F. Notwithstanding any other provision to the contrary, no confessions, statements or admissions may be introduced against a child under the age of thirteen years on the allegations of the petition. There is a rebuttable presumption that any confessions, statements or admissions made by a child thirteen or fourteen years old to a person in a position of authority are inadmissible. G. An extrajudicial admission or confession made by the child out of court is insufficient to support a finding that the child committed the delinquent acts alleged in the petition unless it is corroborated by other evidence. H. The child and the parent, guardian or custodian of the child shall be advised by the court or its representative that the child shall be represented by counsel at all stages of the proceedings on a delinquency petition, including all post-dispositional court proceedings. If counsel is not retained for the child or if it does not appear that counsel will be retained, counsel shall be appointed for the child. I. A child under the age of thirteen alleged or adjudicated to be a delinquent child shall not be fingerprinted or photographed for identification purposes without obtaining a court order. J. The court, at any stage of the proceeding on a petition under the Children's Code, may appoint a guardian ad litem for a child who is a party if the child has no parent, guardian or custodian appearing on behalf of the child or if the parent's, guardian's or custodian's interests conflict with those of the child. A party to the proceeding or an employee or representative of a party shall not be appointed as guardian ad litem. K. The court shall appoint a guardian for a child if the court determines that the child does not have a parent or a legally appointed guardian in a position to exercise effective guardianship. No officer or employee of an agency that is vested with the legal custody of the child shall be appointed guardian of the child except when parental rights have been terminated and the agency is authorized to place the child for adoption. L. A person afforded rights under the Delinquency Act shall be advised of those rights at that person's first appearance before the court on a petition under that act. M. A serious youthful offender who is detained prior to trial in an adult facility has a right to bail as provided under SCRA 1986, Rule 5-401. A child held in a juvenile facility designated as a place of detention prior to adjudication does not have a right to bail but may be released pursuant to the provisions of the Delinquency Act. N. The provisions of the Delinquency Act shall not be interpreted to limit the right of a child to petition a court for a writ of habeas corpus. History: 1978 Comp., § 32A-2-14, enacted by Laws 1993, ch. 77, § 43; 2003, ch. 225, § 9; 2009, ch. 239, § 17. ANNOTATIONS Cross references. — For general provisions, basic rights, see 32A-1-16 NMSA 1978. For explanation of basic rights in the Children's Court, see Rule 10-224 NMRA. The 2009 amendment, effective July 1, 2009, in Subsection A, after "Children’s Code", added the remainder of the sentence; and in Subsection H, in the first sentence, after "delinquency petition", added the remainder of the sentence. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2003 amendment, effective July 1, 2003, deleted "or not" near the beginning of Paragraphs E(2) and (8) and added Subsection N. Confession found voluntary. — Where a child, who was almost seventeen years of age, confessed to murder while the child was held in a detention center; at the officer’s request, the child agreed to visit with the officers; the officers read the child the child’s Miranda rights, told the child that the interview would stop if the child wanted it to stop, and informed the child about the possible consequences of a conviction of murder; the child acknowledged by a nod of the head the reading of each Miranda right and after the rights were read, stated that the child understood the child’s Miranda rights; the officers, at the child’s request, brought the child’s mother into the interview room before they began questioning the child; during the interview, the child asked if the child could visit with the child’s mother alone; the officers refused the request and the child then asked the child’s mother to leave the room; the officers asked child to explain what happened; the child then confessed to the murder; the interview lasted less than one hour; the child had a lengthy juvenile arrest record, had been read Miranda rights on previous occasions, and on one occasion had refused to speak to authorities without a lawyer; and although a clinical psychologist testified that the child suffered from ADHD, that the child’s primary language was Spanish, that the child was raised in a traditional Latino household that made the child deferential to authority figures which would enable the officers to convince the child to confess, the child spoke fluent English, never claimed not to understand the questions, and gave detailed, narrative responses to the questions; the officers told the child that the officers could not promise the child anything about a possible sentence or disposition, and after confessing to the murder, the child asked the officers what they thought might happen, the child knowingly and intelligently waived the child’s Miranda rights, voluntarily consented to the interrogation, and voluntarily confessed. State v. Gutierrez, 2011-NMSC-024, 150 N.M. 232, 258 P.3d 1024. Right to speedy trial. — Constitutional speedy-trial requirements guaranteed under the sixth amendment of the United States constitution also apply in children's court proceedings in New Mexico. In re Darcy S., 1997-NMCA-026, 123 N.M. 206, 936 P.2d 888. Admissibility of statements of a child under thirteen. — The confessions, statements, or admissions of individuals under thirteen years of age regardless of the context in which, or to whom, they were made are not admissible in a delinquency proceeding. State v. Jade G., 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Admissibility of fingerprints of a child under thirteen. — Where the fingerprints of a child under the age of thirteen are taken pursuant to a search warrant, before a formal petition of delinquency is filed, the protections of this section do not apply and cannot be used as the basis to exclude the child’s fingerprints from evidence at the delinquency hearing. State v. Jade G., 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Results of field sobriety tests are not statements. — Evidence of a child’s lack of muscular coordination during field sobriety tests and the child’s response to an officer’s request that the child count during the one-leg-stand test are not statements that are subject to suppression under Subsection D of Section 32A-2-14 NMSA 1978. State v. Randy J., 2011-NMCA-105, 150 N.M. 683, 265 P.3d 734, cert. denied, 2011-NMCERT- 009, 269 P.3d 903. Consent to blood test is not a statement. — A child’s consent to take a blood test pursuant to the Implied Consent Act is not a statement under Subsection D of Section 32A-2-14 NMSA 1978, because the child’s consent is implied as a matter of law under Section 66-8-107 NMSA 1978. State v. Randy J., 2011-NMCA-105, 150 N.M. 683, 265 P.3d 734, cert. denied, 2011-NMCERT-009, 269 P.3d 903. Results of a blood test are not statements. — A child’s blood test results is not a statement under Subsection D of Section 32A-2-14 NMSA 1978. State v. Randy J., 2011-NMCA-105, 150 N.M. 683, 265 P.3d 734, cert. denied, 2011-NMCERT-009, 269 P.3d 903. Physical evidence of DUI. — Where a child, who was sixteen years of age, was subject to investigatory detention for DUI; the police officer failed to inform the child of the child’s constitutional rights as required by Section 32A-2-14 NMSA 1978; the officer had the child perform the horizontal gaze nystagmus (HGN), walk-and-turn, and one- leg-stand field sobriety tests; and after the officer read the Implied Consent Act to the child, the child consented to a blood test, the results of the field sobriety tests, the child’s consent to a blood test, and the results of the blood test were not statements subject to suppression under Subsection D of Section 32A-2-14 NMSA 1978. State v. Randy J., 2011-NMCA-105, 150 N.M. 683, 265 P.3d 734, cert. denied, 2011-NMCERT- 009, 269 P.3d 903. Constitutionality of Subsection F. — The rebuttable presumption that the statements and confessions of a child under 13 years are inadmissible is in accord with the legislative purpose of providing extra protection for the very young, and the provision was not unconstitutional as applied to a 16-year-old defendant. State v. Setser, 1997- NMSC-004, 122 N.M. 794, 932 P.2d 484. Presumption in Subsection F. — The term "rebuttable presumption," in Subsection F, is not used in exclusive reference to the factors of Subsection E; rather, it relates to admissibility, and it precludes the children's court from treating a 13 or 14-year-old child in the same manner as a child over the age of 14 or an adult. In re Francesca L., 2000- NMCA-019, 128 N.M. 673, 997 P.2d 147, cert. quashed, 132 N.M. 194, 46 P.3d 101, holding limited by State v. Adam J., 2003-NMCA-080, 133 N.M. 815, 70 P.3d 805, cert. denied, 2003-NMCERT-006, 133 N.M. 771, 70 P.3d 761.. If the court is not satisfied that the rebuttable presumption of Subsection F of this section has been overcome based on the personal traits of the child, the court’s inquiry is complete and the confession, statement, or admission in question is inadmissible. To the extent that In re Francesca L., 2000-NMCA-019, 128 N.M. 673, 997 P.2d 147, cert. quashed, 132 N.M. 194, 46 P.3d 101, states to the contrary, it is overruled, State v. Adam J., 2003-NMCA-080, 133 N.M. 815, 70 P.3d 805, cert. denied, 2003-NMCERT- 006, 133 N.M. 771, 70 P.3d 761. Subsection F is construed to eliminate application of Subsection G of this section, which permits corroborated extrajudicial admissions and confessions. State v. Jade G., 2005-NMCA-019, 137 N.M. 128, 108 P.3d 534, aff'd, 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Child’s statements inadmissible. — Subsection F of this section plainly forbids admission of the statements child made to relatives and neighbors regarding the shooting of her father by the child. State v. Jade G., 2005-NMCA-019, 137 N.M. 128, 108 P.3d 534, aff'd, 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Thirteen-year-old child's incriminating statement made to an assistant principal was presumptively inadmissible. — Where child, a thirteen-year-old student, was charged with the delinquent act of unlawful carrying of a deadly weapon on school premises, and where child moved to suppress incriminating statements he made to an assistant principal and to the school resource officer, and where the district court entered an order granting the suppression of child's statement to the school resource officer, but otherwise denied the motion, the district court erred in partially denying child's motion to suppress, because the assistant principal was a person in a position of authority, and as such, the district court erred by not concluding that child's statement to the assistant principal was presumptively inadmissible under Subsection F of this section. State v. Cesar B., 2020-NMCA-048. State’s burden of proof in rebutting the presumption of inadmissibility in Subsection F. — To overcome the presumption of inadmissibility in Subsection F of this section, the state must prove by clear and convincing evidence that at the time the thirteen or fourteen-year-old child made his or her statement to a person in a position of authority, the child had the maturity to understand his or her constitutional and statutory rights and the force of will to invoke such rights. In order to obtain the clear and convincing evidence needed to rebut the presumption of inadmissibility, the interrogator who is in a position of authority must first adequately advise the thirteen or fourteen- year-old child of his or her Miranda and statutory rights and then invite the child to explain, on the record, his or her actual comprehension and appreciation of each Miranda warning. State v. DeAngelo M., 2015-NMSC-033, aff’g on other grounds 2015- NMCA-019. Where thirteen-year-old child, charged with murder, residential burglary, tampering with evidence, and larceny, was subjected to a custodial interrogation by three law enforcement officers, during which child made inculpatory statements regarding a burglary that connected child to a murder, the trial court erred in denying child’s motion to suppress the statements where the officers failed to advise child of his Miranda and statutory rights in a clear and intelligible manner and where it was not clear from the record that child fully comprehended and appreciated his constitutional and statutory rights. Moreover, the fact that child continued to answer questions after unambiguously asserting his right to remain silent provided additional evidence that child did not possess either the maturity to understand his rights or the force of will to assert those rights. The state did not meet its burden of rebutting the presumption of inadmissibility under 32A-2-14F NMSA 1978. State v. DeAngelo M., 2015-NMSC-033, aff’g on other grounds 2015-NMCA-019. Rebutting the presumption in Subsection F. — Rebutting the presumption in Subsection F of this section requires the state to present clear and convincing evidence that, in the totality of the circumstances, the child’s personal traits give him an above- average ability to knowingly, intelligently, and voluntarily waive his rights in the way the statute presumes a fifteen-year-old child can. State v. DeAngelo M., 2015-NMCA-019, cert. granted, 2015-NMCERT-002. Where thirteen-year-old child accused of murder, burglary, larceny and tampering with evidence, was on the lowest end of the age range at which his statements could be used, and where lay witnesses did not present evidence of the child’s actual grades or test scores from his regular school or present evidence of any school records concerning the child, but based their opinion that the child had above average intelligence solely on a single interaction with the child during the interrogation, the state did not present clear and convincing evidence that the child had the capacity to understand his rights and understand the consequences of waiving those rights in the way a fifteen-year-old child would. State v. DeAngelo M., 2015-NMCA-019, cert. granted, 2015-NMCERT-002. Construction. — Subsection C is an exception to the general rule in Subsection A that children are entitled to the same basic rights as adults; therefore, this section is not a mere codification of Miranda, but was intended instead to provide children with greater statutory protection than constitutionally mandated. State v. Javier M., 2001-NMSC-030, 131 N.M. 1, 33 P.3d 1. Waiver of Miranda rights. — Even though the 16-year-old defendant suffered from certain conditions and disorders that affected her cognitive abilities, there was no evidence that she lacked sufficient intelligence to understand her rights; therefore, her confession, given voluntarily after a valid waiver of her Miranda rights, was admissible. State v. Setser, 1997-NMSC-004, 122 N.M. 794, 932 P.2d 484. Motion to suppress 17-year-old defendant's statement was properly denied, because, although the interrogation took place at a police station while he was in handcuffs and without a parent present, he had previous experience with the court system and had been questioned by police officers and represented by attorneys in the past, there was no evidence that he needed to be provided with a special form in order to understand his rights or knowingly waive them, and, in view of his age and eleventh-grade education, his alert condition at the time of the interrogation, and the manner in which his rights were explained to him, he was more likely than not to understand and knowingly waive them, even without his parent present. State v. Lasner, 2000-NMSC- 038, 129 N.M. 806, 14 P.3d 1282. In evaluating the trial court's determination that 17-year-old defendant knowingly, intelligently, and voluntarily waived his constitutional rights, it is necessary to look at the totality of circumstances, giving particular emphasis to the factors listed in Subsection E. State v. Martinez, 1999-NMSC-018, 127 N.M. 207, 979 P.2d 718. Expanded protections in Children’s Code. — The Children’s Code protections apply more broadly than the constitutional protections recognized in Miranda; the Children’s Code protections apply in any scenario after a child has been subject to formal charges, in any scenario in which a child is subject to an investigative detention, and in any scenario at all in which a child is suspected of being a delinquent child. State v. Rivas, 2017-NMSC-022. Waiver of Miranda rights by juvenile defendant. — Where fifteen-year-old defendant, charged with first-degree murder, aggravated burglary, tampering with evidence, and unlawful taking of a motor vehicle, agreed to be interviewed by a police detective after having been advised of his rights, after being given an opportunity to read, and read aloud from, a standard advice of rights form before signing the form and indicating a desire to speak to the detective, where nothing in the record indicated that defendant lacked sufficient intelligence to understand his rights or the repercussions of waiving those rights or that defendant suffered from any impairment of mental or physical condition, and where there was no coercive or manipulative conduct by law enforcement, the totality of the circumstances indicated that defendant knowingly, intelligently, and voluntarily waived his right against self-incrimination. State v. Rivas, 2017-NMSC-022. Miranda warning not required. — Police officers may ask questions about needles or weapons prior to pat-down search to assure safety of officers without giving the individual Miranda warning. State v. Gerald B., 2006-NMCA-022, 139 N.M. 113, 129 P.3d 149. Unwarned statements to probation officers are inadmissible in a subsequent prosecution. — Where defendant, a juvenile probationer, arrived at his probation office with his parents and voluntarily stated that he wanted to turn himself in for shooting and killing two people, and where his probation officer escorted defendant to a supervisor’s office and talked to defendant until police arrived, but failed to advise defendant of his Miranda rights or his right to remain silent under 32A-2-14 NMSA 1978, the statements made in the supervisor's office were inadmissible in a subsequent prosecution, because after defendant made his initial voluntary statement in the lobby of the probation office, defendant was suspected of committing a new delinquent act, was not free to leave the probation office and was thus subject to an investigatory detention, and this section requires a child to be warned of the statutory right against self-incrimination when subject to an investigatory detention. State v. Filemon V., 2018-NMSC-011. Midstream Miranda warnings are ineffective in informing a suspect of his or her constitutional rights. — Where defendant, a juvenile probationer, arrived at his probation office with his parents and voluntarily stated that he wanted to turn himself in for shooting and killing two people, and where his probation officer escorted defendant to a supervisor's office and talked to defendant until police arrived, but failed to advise defendant of his Miranda rights or his right to remain silent under 32A-2-14 NMSA 1978, and where police transported defendant to the Silver City police department where defendant proceeded to give a full statement regarding the murders without being advised of his constitutional rights, and where defendant was subsequently taken to an interview room where he was read his Miranda warnings by the case agent assigned to the murder investigation and was instructed to sign a written waiver of rights, which defendant and his mother signed, and where defendant proceeded to give a second statement to police which included the same content as the first statement he gave to the police, the district court did not err in suppressing the post-Miranda statement, because the midstream Miranda warning was ineffective in informing defendant of his Miranda rights while he was in custodial interrogation; the first and second police interviews were effectively continuous and the officer did not remedy the initial failure to warn by informing defendant that his first statement could not be used against him at trial. State v. Filemon V., 2018-NMSC-011. Federal Miranda warnings not required prior to interview with probation officer. — Where a juvenile probationer admitted to his juvenile probation officer (JPO) that he had used drugs, the district court, in the ensuing probation revocation hearing, erred in granting the child’s motion to suppress inculpatory statements based on the JPO’s failure to give Miranda warnings to the child before questioning him, because Miranda’s requirements do not apply to a probationer’s statements made during an interview with his probation officer since the probationer is not in custody for purposes of receiving Miranda protection and there is no formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. State v. Taylor E., 2016-NMCA-100, cert. denied. Warning of statutory rights not required prior to interview with probation officer. — Where a juvenile probationer admitted to his juvenile probation officer that he had used drugs, the district court, in the ensuing probation revocation hearing, erred in granting the child’s motion to suppress inculpatory statements based on the JPO’s failure to advise the juvenile of his constitutional rights before questioning him, because the protections set forth in 32A-2-14(C) NMSA 1978 are triggered, not by a JPO’s suspicion that a probationer may have violated a condition of probation or where the child is alleged in a revocation petition to have done so, but only when a child is subject to an investigatory detention and where a law enforcement officer questions a child based on a suspicion that the child has committed a delinquent act or where the child is alleged to have done so in a delinquency petition. State v. Taylor E., 2016-NMCA-100, cert. denied. Warning of right to withhold consent to field sobriety tests is not required. — A police officer is not required to advise a minor of a right to refuse to perform field sobriety tests. State v. Candace S., 2012-NMCA-030, 274 P.3d 774, cert. denied, 2012- NMCERT-002. The failure of a police officer to advise a minor of a right to remain silent does not render field sobriety tests inadmissible, because the performance of field sobriety tests does not constitute statements subject to suppression. State v. Candace S., 2012-NMCA- 030, 274 P.3d 774, cert. denied, 2012-NMCERT-002. Failure to advise minor of a right to remain silent and of a right to withhold consent to field sobriety tests. — Where a police officer had reasonable suspicion to administer field sobriety tests and breath alcohol tests to defendant who was a minor, the officer’s failure to advise defendant of a right to remain silent and of a right to withhold consent to the tests did not render the tests inadmissible. State v. Candace S., 2012-NMCA-030, 274 P.3d 774, cert. denied, 2012-NMCERT-002. Rights of a child during an investigatory detention. — Under this section, a child who is suspected or alleged of having committed a delinquent act cannot be interrogated or questioned during an investigatory detention unless the child is first advised of his or her statutory right to remain silent and the child knowingly, intelligently, and voluntarily waives his or her rights. The state bears the burden of proving that the child knowingly, intelligently, and voluntarily waived the statutory right to remain silent. The remedy for violating this section is to preclude the admission, in court proceedings, of any statement or confession elicited from the child. State v. Antonio T., 2015-NMSC- 019, rev’g 2013-NMCA-035, 298 P.3d 484. Waiver of statutory right. — Where sixteen-year-old child made incriminatory statements during an investigatory detention after being suspected of committing the delinquent act of driving while intoxicated (DWI), evidence that officers conducted the DWI investigation in the public parking lot of a convenience store in plain view of store employees, traffic, and other members of the public entering and exiting the store, that the length of time between child’s initial contact with police and his arrest for DWI lasted only twelve minutes, that the officer’s demeanor toward child was professional and courteous and that there was no indication that child felt in fear of the interaction, and that the officer informed child of his right to remain silent, established that child understood his statutory right and the consequences of waiving that right. Under the totality of the circumstances, the evidence was consistent with a determination that child knowingly, intelligently, and voluntarily waived his right to remain silent. State v. Wyatt B., 2015-NMCA-110, cert. denied, 2015-NMCERT-010. Questioning a child suspected of delinquent behavior by a school administrator in the presence of a law enforcement officer constitutes an investigatory detention. — When a child suspected of delinquent behavior is questioned in the presence of a law enforcement officer, that child is subjected to an investigatory detention, triggering the protections of 32A-2-14 NMSA 1978. State v. Antonio T., 2015- NMSC-019, rev’g 2013-NMCA-035, 298 P.3d 484. Where the assistant principal of a high school suspected a seventeen-year-old student of being intoxicated and questioned the child in the presence of the student resource officer, a certified law enforcement officer, the questioning of the child constituted an investigatory detention triggering the protections of 32A-2-14 NMSA 1978. The statements made by the child in response to the assistant principal’s questions were inadmissible because the child was not advised of his statutory right to remain silent and the state failed to prove that the child knowingly, intelligently, and voluntarily waived his statutory right to remain silent. State v. Antonio T., 2015-NMSC-019, rev’g 2013- NMCA-035, 298 P.3d 484. Interrogation of a student by a school administrator in the presence of a police officer. — Where a vice principal interrogated a high school student, who was suspected of being intoxicated, in the vice principal’s office in the presence of a uniformed police officer; the purpose of the vice principal’s investigation was to ensure the safety of defendant and other students; the vice principal called the officer to administer a breath test and to protect the vice principal; the officer administered the breath test on defendant and searched a bathroom where defendant said defendant had disposed of a bottle of alcohol; defendant admitted to drinking; and defendant’s statements were used in a defendant’s juvenile case, defendant was not entitled to Miranda warnings from the vice principal despite the presence of the police officer because the interrogation constituted an investigatory detention, not a custodial detention, and the vice principal was acting to serve the school’s interests in a safe environment, not on behalf of law enforcement. State v. Antonio T., 2013-NMCA-035, 298 P.3d 484, cert. granted, 2013-NMCERT-003. Suppression not required. — When child volunteered that he possessed marijuana, in response to police officer's inquiry about needles during a pat-down search, child was not entitled under this section to the suppression of the statements or marijuana. State v. Gerald B., 2006-NMCA-022, 139 N.M. 113, 129 P.3d 149. State to prove voluntariness of confession. — Whether a juvenile knowingly and voluntarily waives his constitutional rights before giving a confession is an issue distinct from the competency of the juvenile, requires the consideration of different factors, and is an issue as to which the state carries the burden of proof; if the children's court fails to make the state prove by the preponderance of the evidence that a juvenile knowingly and voluntarily waived his or her rights, a delinquency determination may be reversed. State v. Jason F., 1998-NMSC-010, 125 N.M. 111, 957 P.2d 1145. Investigatory detention triggers statute. — A child need not be under custodial interrogation in order to trigger the protections of this section. The protections are triggered when a child is subject to an investigatory detention and therefore, prior to questioning, a child who is detained or seized and suspected of wrongdoing must be advised that he or she has the right to remain silent and that anything said can be used in any delinquency hearing. State v. Javier M., 2001-NMSC-030, 131 N.M. 1, 33 P.3d 1. Objective standard of determining wrongdoing. — In the context of investigatory stops, determining whether a child is "suspected" of wrongdoing should be measured by an objective standard. State v. Javier M., 2001-NMSC-030, 131 N.M. 1, 33 P.3d 1. Administrative questioning does not trigger statute. — This section does not require that officers give children constitutional warnings prior to: (1) questions pertaining to a child's age or identity; (2) general on-the-scene questioning; or (3) volunteered statements made by a child. State v. Javier M., 2001-NMSC-030, 131 N.M. 1, 33 P.3d 1. Remedy for violation. — If during an investigatory detention, a child is not advised of the right to remain silent and warned of the consequence of waiving that right, any statement or confession obtained as a result of the detention or seizure is inadmissible in any delinquency proceeding. State v. Javier M., 2001-NMSC-030, 131 N.M. 1, 33 P.3d 1. Dismissal not a remedy. — There is no statutory provision for the dismissal of a delinquency petition based on a violation of any of the statutory rights granted under this section. In re Jade G., 2001-NMCA-058, 130 N.M. 687, 30 P.3d 376, cert. quashed, 132 N.M. 484, 51 P.3d 527 (2002), aff'd in part, rev'd in part on other grounds, State v. Jade G., 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Purpose of Subsection I of this section is to afford greater protection for children under 13 than to older children and adults in regard to fingerprinting. State v. Jade G., 2005- NMCA-019, 137 N.M. 128, 108 P.3d 534, aff'd, 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Fingerprints. — An obvious purpose of Subsection I of this section is to require at some stage a judge’s independent review of a request for a juvenile’s fingerprints, to balance the accountability and protective purposes of the Delinquency Act with the protection to be afforded children under 13. State v. Jade G., 2005-NMCA-019, 137 N.M. 128, 108 P.3d 534, aff'd, 2007-NMSC-010, 141 N.M. 284, 154 P.3d 659. Special master's refusal to rule on a juvenile's motion to suppress does not violate this rule if the children's court reviews the matter both before and after the adjudicatory hearing conducted by the special master. State v. Jason F., 1998-NMSC-010, 125 N.M. 111, 957 P.2d 1145. Validity of waiver. — Although Subsection E(8) of this section directs courts to consider the presence or absence of an attorney, friend, or relative at the questioning, that is merely one of the factors relevant in determining the validity of a waiver of rights, and there is no statutory requirement that parents be notified about a custodial interrogation of their juvenile child. State v. Martinez, 1999-NMSC-018, 127 N.M. 207, 979 P.2d 718. The state was not required to prove that 17-year-old defendant expressly waived his rights in order to demonstrate a constitutionally valid waiver. State v. Martinez, 1999- NMSC-018, 127 N.M. 207, 979 P.2d 718. Consent of minor to vehicle search. — A police officer need not advise a minor of the right to refuse to consent in order to obtain the valid consent of the minor to search the minor’s vehicle. State v. Carlos A., 2012-NMCA-069, 284 P.3d 384, cert. denied, 2012- NMCERT-006. Where the minor, who was seventeen years of age, was stopped by a police officer for a traffic violation; the officer smelled the odor of marijuana; the minor consented to the search of the minor’s vehicle; the officer did not advise the minor and the minor did not know that the minor had a right to refuse to consent; the contact between the minor and the officer was low-key, polite, cooperative, and not hostile; the officer did not exert any unusual pressure on the minor; and the encounter lasted about ten minutes from the time of the stop to the end of the vehicle search, there was substantial evidence that the minor voluntarily consented to the search of the vehicle. State v. Carlos A., 2012- NMCA-069, 284 P.3d 384, cert. denied, 2012-NMCERT-006. Law reviews. — For note, "Children's Law: Investigatory Detention of Juveniles in New Mexico: Providing Greater Protection than Miranda Rights for Children in the Area of Police Questioning - State of New Mexico v. Javier M.," see 32 N.M.L. Rev. 393 (2002). 32A-2-15. Time limitations on delinquency adjudicatory hearing. The adjudicatory hearing in a delinquency proceeding shall be held in accordance with the time limits set forth in the Children's Court Rules and Forms [10-101 NMRA]. History: 1978 Comp., § 32A-2-15, enacted by Laws 1993, ch. 77, § 44. ANNOTATIONS Cross references. — For adjudicatory time limits in delinquency proceedings, see Rule 10-243 NMRA. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-28 NMSA 1978 have been included in the annotations to this section. Commencement of period for adjudicatory hearing in delinquency proceedings. — The time limit set forth in 10-226 NMRA (now 10-243 NMRA) for commencing an adjudicatory hearing in a delinquency proceeding if the child is not held in custody begins to run when the summons and a copy of the petition are personally served on the child, not when a copy is given to the child's attorney. State v. Jody C., 1991-NMCA- 097, 113 N.M. 80, 823 P.2d 322, cert denied, 113 N.M. 23, 821 P.2d 1060. Granting of continuance within trial court's discretion. — The granting of a motion for continuance is within the sound discretion of the trial court and such action will not be disturbed on review unless there is a showing of abuse of that discretion. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248. Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For article, "The New Mexico Children's Code: Some Remaining Problems," see 10 N.M.L. Rev. 341 (1980). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 62 et seq. 32A-2-16. Conduct of hearings; findings; dismissal; dispositional matters; penalty. A. Hearings on petitions shall be conducted by the court separate from other proceedings. A jury trial on the issues of alleged delinquent acts may be demanded by the child, parent, guardian, custodian or counsel in proceedings on petitions alleging delinquency when the offense alleged would be triable by jury if committed by an adult. If a jury is demanded and the child is entitled to a jury trial, the jury's function is limited to that of trier of the factual issue of whether the child committed the alleged delinquent acts. If no jury is demanded, the hearing shall be by the court without a jury. Jury trials shall be conducted in accordance with rules promulgated under the provisions of Subsection B of Section 32A-1-5 NMSA 1978. A delinquent child facing a juvenile disposition shall be entitled to a six-member jury. If the children's court attorney has filed a motion to invoke an adult sentence, the child is entitled to a twelve-member jury. A unanimous verdict is required for all jury trials. The proceedings shall be recorded by stenographic notes or by electronic, mechanical or other appropriate means. B. All hearings to declare a person in contempt of court and all hearings on petitions pursuant to the provisions of the Delinquency Act shall be open to the general public, except where the court in its discretion, after a finding of exceptional circumstances, deems it appropriate to conduct a closed delinquency hearing. Only the parties, their counsel, witnesses and other persons approved by the court may be present at a closed hearing. Those other persons the court finds to have a proper interest in the case or in the work of the court may be admitted by the court to closed hearings on the condition that they refrain from divulging any information concerning the exceptional circumstances that resulted in the need for a closed hearing. Accredited representatives of the news media shall be allowed to be present at closed hearings subject to the conditions that they refrain from divulging information concerning the exceptional circumstances that resulted in the need for a closed hearing and subject to such enabling regulations as the court finds necessary for the maintenance of order and decorum and for the furtherance of the purposes of the Delinquency Act. C. Those persons or parties granted admission to a closed hearing who intentionally divulge information in violation of Subsection B of this section are guilty of a petty misdemeanor. D. The court shall determine if the allegations of the petition are admitted or denied. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court after hearing all of the evidence bearing on the allegations of delinquency shall make and record its findings on whether the delinquent acts subscribed to the child were committed by the child. If the court finds that the allegations of delinquency have not been established, it shall dismiss the petition and order the child released from any detention or legal custody imposed in connection with the proceedings. E. The court shall make a finding of delinquency based on a valid admission of the allegations of the petition or on the basis of proof beyond a reasonable doubt. F. If the court finds on the basis of a valid admission of the allegations of the petition or on the basis of proof beyond a reasonable doubt that the child is a delinquent, the court may proceed immediately or at a postponed hearing to make disposition of the case. G. In that part of the hearings held under the Delinquency Act on dispositional issues, all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value even though not competent had it been offered during the part of the hearings on adjudicatory issues. H. On the court's motion or that of a party, the court may continue the hearing on the petition for a reasonable time to receive reports and other evidence in connection with disposition. The court may continue the hearing pending the receipt of the predisposition study and report if that document has not been prepared and received. During any continuances under this subsection, the court shall make an appropriate order for detention or legal custody. History: 1978 Comp., § 32A-2-16, enacted by Laws 1993, ch. 77, § 45; 2009, ch. 239, § 18. ANNOTATIONS Cross references. — For sentencing for petty misdemeanors, see 31-19-1 NMSA 1978. The 2009 amendment, effective July 1, 2009, in Subsection A, in the fifth sentence, changed the reference from Section 32-1-4 NMSA 1978 to Section 32A-1-5 NMSA 1978. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-31 NMSA 1978 have been included in the annotations to this section. Purpose of proceeding to determine "delinquency" is to decide whether the accused is responsible for prohibited conduct and, when criminal, the consequences may be the same as in the case of an adult. Indeed, it is even possible that ultimately this could result in the juvenile being incarcerated in the penitentiary with adult offenders. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716. Criteria for detention. — This section does not require the court to consider criteria for detention before entering such an order. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164. Subsections F and H of this section do not permit the children’s court to wholly bypass the criteria for detention. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164. No conflict with 10-229B NMRA. — There is no conflict between the time limit within which a dispositional hearing must be held under 10-229B NMRA (now 10-246 NMRA) and Section 32-1-31H NMSA 1978 (now Subsection H of this section) granting discretion to the children's court in a wide variety of circumstances; the rule simply states that in one specific circumstance that discretion should not be exercised to delay a hearing. In re Paul T., 1994-NMCA-123, 118 N.M. 538, 882 P.2d 1051. Acceptance of admission by child involves accepting that the child has committed a delinquent act and accepting that the child is a delinquent child. State v. Doe, 1978- NMCA-025, 91 N.M. 506, 576 P.2d 1137. Obligation to advise of rights. — Although the court has a statutory obligation to advise children before it of their rights under the Children's Code and other laws at each separate appearance, that obligation must be read in light of the legislative purposes expressed in the code, and since the child did not claim any prejudice nor claim that he was not otherwise advised by his attorney of his constitutional or other legal rights, the appellate court would not reverse a commitment order for failure of the trial court to advise the child of his rights. In re Doe, 1975-NMCA-124, 88 N.M. 481, 542 P.2d 61. Demand requirement for jury trial is ineffective to change constitutional right to a jury trial. State v. Doe, 1980-NMCA-091, 94 N.M. 637, 614 P.2d 1086 (decided under prior law). Failure to make jury demand — The children's court erred in concluding that a child was not entitled to a jury trial when he failed to make a timely jury demand as provided in 10-228A NMRA (now 10-245 NMRA); the rule can do no more than encourage a counseled decision at an early stage of the proceedings. State v. Eric M., 1996-NMSC- 056, 122 N.M. 436, 925 P.2d 1198. Child's right to waive jury trial. — The state has no right grounded in either state statute, court rule, or the state constitution to impose a right of concurrence on the right of a child to waive his jury trial. In re Christopher K., 1999-NMCA-157, 128 N.M. 406, 993 P.2d 120. Waiver of right must be done knowingly. — Waiver of a right created by the constitution, a statute or a court-promulgated rule must be done intelligently and knowingly if the right is to be denied the one claiming it. State ex rel. Dep't of Human Servs. v. Perlman, 1981-NMCA-076, 96 N.M. 779, 635 P.2d 588. Express waiver of right to jury trial required. — Where a child has a right to a trial by jury, such right may be waived, but only by an express waiver. State v. Doe, 1980- NMCA-091, 94 N.M. 637, 614 P.2d 1086, cert. denied, 94 N.M. 675, 615 P.2d 992. Phrase "when the offense alleged would be triable by jury if committed by an adult" means a district court offense. A child charged with a petty misdemeanor which would have been triable by jury in the magistrate court if committed by an adult was not entitled to jury trial. State v. Doe, 1977-NMCA-092, 90 N.M. 776, 568 P.2d 612, cert. denied, 91 N.M. 3, 569 P.2d 413. Same treatment as adult. — Prior to the adoption of the state's first juvenile law in 1917, a minor charged with having committed a criminal offense was handled no differently than an adult. Under the provisions of N.M. Const., art. II, § 12, which reads in part, "the right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate," he would have been entitled to have his guilt determined by a jury before he could have been imprisoned. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716. No imprisonment without jury. — At the time of the adoption of the state constitution, a juvenile could not have been imprisoned without a trial by jury. This being true, no change in terminology or procedure may be invoked whereby incarceration could be accomplished in a manner which involved denial of the right to jury trial. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716. Driving under the influence and violating Liquor Control Act. — Child who was charged with driving under the influence and violation of the Liquor Control Act was entitled to a jury trial, since an adult would have been entitled to a jury trial if facing two charges with the same penalties as the offenses on which the child was tried, and since the maximum possible aggregate sentence exceeded six months. State v. Benjamin C., 1989-NMCA-075, 109 N.M. 67, 781 P.2d 795, cert denied, 109 N.M. 54, 781 P.2d 782. State’s burden of proof in rebutting the presumption of inadmissibility in 32A-2- 14F NMSA 1978. — To overcome the presumption of inadmissibility in 32A-2-14F NMSA 1978, the state must prove by clear and convincing evidence that at the time the thirteen or fourteen-year-old child made his or her statement to a person in a position of authority, the child had the maturity to understand his or her constitutional and statutory rights and the force of will to invoke such rights. In order to obtain the clear and convincing evidence needed to rebut the presumption of inadmissibility, the interrogator who is in a position of authority must first adequately advise the thirteen or fourteen- year-old child of his or her Miranda and statutory rights and then invite the child to explain, on the record, his or her actual comprehension and appreciation of each Miranda warning. State v. DeAngelo M., 2015-NMSC-033, aff’g on other grounds 2015- NMCA-019. Where thirteen-year-old child, charged with murder, residential burglary, tampering with evidence, and larceny, was subjected to a custodial interrogation by three law enforcement officers, during which child made inculpatory statements regarding a burglary that connected child to a murder, the trial court erred in denying child’s motion to suppress the statements where the officers failed to advise child of his Miranda and statutory rights in a clear and intelligible manner and where it was not clear from the record that child fully comprehended and appreciated his constitutional and statutory rights. Moreover, the fact that child continued to answer questions after unambiguously asserting his right to remain silent provided additional evidence that child did not possess either the maturity to understand his rights or the force of will to assert those rights. The state did not meet its burden of rebutting the presumption of inadmissibility under 32A-2-14F NMSA 1978. State v. DeAngelo M., 2015-NMSC-033, aff’g on other grounds 2015-NMCA-019. Jury size for juvenile disposition. — Whether the child is entitled to a twelve-member jury is not determined by the charges, but by the state’s decision to invoke an adult sentence; a child is entitled to a six-member jury unless subject to an adult sentence. State v. DeAngelo M., 2015-NMCA-019, cert. granted, 2015-NMCERT-002. Where the state’s petition for delinquency terms the child as a "delinquent child" and describes the offenses as "delinquent acts", and where the state did not seek an adult sentence, the child was not entitled to a twelve-member jury. State v. DeAngelo M., 2015-NMCA-019, cert. granted, 2015-NMCERT-002. Felony evidence not charged in petition sustains finding. — Evidence of "an act" constituting a felony, in the absence of contrary evidence, sustains a finding that a child is in need of care or rehabilitation, whether or not the felony act was charged in the petition. State v. Doe, 1979-NMCA-021, 93 N.M. 206, 598 P.2d 1166. Conviction of crime prerequisite to determination of delinquency. — It is a fundamental right of a party to be convicted of a crime, which is a necessary prerequisite to a determination of delinquency, based upon evidence of the elements of the crime, and in a prosecution for a violation of Section 30-31-23 NMSA 1978, the state must prove that the respondents had knowledge of the presence and character of the item possessed; a degree of furtiveness on the parts of juvenile respondents, in doing their smoking and passing a pipe around between buildings while changing classes, in light of a school regulation prohibiting the smoking of tobacco, was not conduct sufficient to infer that the smokers knew the character of the substance they were using. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248. Certified statement on appeal supports conclusion of delinquency. — Since the children's court judge's original findings did not support delinquency, but a certified statement by him on appeal did contain findings that supported the judgment, the findings were sufficient to support the conclusion that the child was a delinquent. State v. Doe, 1977-NMCA-078, 91 N.M. 92, 570 P.2d 923. Two aspects to determination of delinquency. — There are two aspects to the determination that a child is a delinquent child - the act which he committed and the need for care or rehabilitation. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948 (decided under prior law). On a petition alleging delinquency, the adjudicatory proceedings involve two aspects: (1) whether the child committed the delinquent act, and (2) whether the child is in need of care or rehabilitation. State v. Doe, 1979-NMCA-021, 93 N.M. 206, 598 P.2d 1166 (decided under prior law). Standard for admissibility of evidence in adjudicatory phases of hearing is clearly different from that in the dispositional phase of the hearing. Doe v. State, 1978-NMSC- 068, 92 N.M. 74, 582 P.2d 1287. Use of predisposition report held constitutionally impermissible. — When a predisposition report received by a judge in a juvenile delinquency case is composed primarily of hearsay evidence which would be clearly incompetent in either of the adjudicatory phases of the proceedings, and it was not shown to be "competent, material and relevant in nature," then to use such hearsay and untested evidence to determine delinquency is constitutionally impermissible as a denial of the child's constitutional right to confront and cross-examine the witnesses against him. Doe v. State, 1978-NMSC-068, 92 N.M. 74, 582 P.2d 1287. Evidence supporting need for rehabilitation. — Since the evidence showed that a child made an unauthorized entry of the residence of a victim at night with the intent to commit the offense of criminal sexual penetration (which is the third-degree felony of burglary) and that after entering he attempted to commit, at the least, the crime of criminal sexual penetration in the third degree (a fourth-degree felony), and there was no evidence to the contrary, the evidence of either of the felonies sustains the finding that the child is in need of care and rehabilitation. State v. Doe, 1979-NMCA-021, 93 N.M. 206, 598 P.2d 1166 (decided under prior law). No abuse of discretion in order for committal. — Court did not abuse its discretion in ordering that a child convicted of involuntary manslaughter be committed to the custody of the youth authority (now children, youth and families departments) as there was evidence in the record to support the determination that the child had committed a delinquent act and that the child was in need of care and rehabilitation. State v. Cody R., 1991-NMCA-127, 113 N.M. 140, 823 P.2d 940, cert. denied, 113 N.M. 23, 821 P.2d 1060 (decided under prior law). No authority to order evaluation although child committed delinquent acts. — Although a child was found to have committed delinquent acts, there was no finding that the child was in need of care or rehabilitation, or a finding that the child was a delinquent child, and thus the children's court lacked authority to order a diagnostic evaluation. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948 (decided under prior law). Child's right to address court prior to sentencing. — A child has the right to address the children's court before disposition; the children's court should offer a child the opportunity to address the court before pronouncing sentence. State v. Ricky G., 1990- NMCA-101, 110 N.M. 646, 798 P.2d 596. Conditions necessary to place child on probation. — The children's court can place a delinquent child on probation without finding that the child is in need of care and rehabilitation. Further, the court has discretion regarding whether to dismiss a case or place a child on probation when it has specifically found that the child is not in need of care and rehabilitation. State v. Michael R., 1988-NMCA-087, 107 N.M. 794, 765 P.2d 767 (decided under prior law). Erroneous findings held not to require reversal. — Since there were findings that supported the judgment and findings that did not support the judgment, the erroneous findings did not require a reversal; they were unnecessary for a decision in this case. State v. Doe, 1977-NMCA-078, 91 N.M. 92, 570 P.2d 923. Traffic offenses not public hearings. — Hearings for those traffic offenses which are delinquent acts, which come exclusively under the jurisdiction of the children's court, are expressly not public hearings. 1972 Op. Att'y Gen. No. 72-34 (rendered under prior law). Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For comment, "Poteet v. Roswell Daily Record, Inc.: Balancing First Amendment Free Press Rights Against a Juvenile Victim's Right to Privacy," see 10 N.M.L. Rev. 185 (1979-1980). For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980). For comment, "The Right to Be Present: Should It Apply to the Involuntary Civil Commitment Hearing," see 17 N.M.L. Rev. 165 (1987). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 82 et seq. Power of juvenile court to require children to testify, 151 A.L.R. 1229. Applicability of rules of evidence in juvenile delinquency proceedings, 43 A.L.R.2d 1128. Jury trial: right to jury trial in juvenile court delinquency proceedings, 100 A.L.R.2d 1241. Defense of infancy in juvenile delinquency proceedings, 83 A.L.R.4th 1135. Application of Dorszynski v. United States requiring that sentencing court make express finding of "no benefit" from treatment under Youth Corrections Act (18 USCS § 5005 et seq.), 54 A.L.R. Fed. 382. 43 C.J.S. Infants §§ 93, 96. 32A-2-17. Predisposition studies; reports and examinations. A. After a petition has been filed and either a finding with respect to the allegations of the petition has been made or a notice of intent to admit the allegations of the petition has been filed, the court may direct that a predisposition study and report to the court be made in writing by the department or an appropriate agency designated by the court concerning the child, the family of the child, the environment of the child and any other matters relevant to the need for treatment or to appropriate disposition of the case. The following predisposition reports shall be provided to the parties and the court five days before actual disposition or sentencing: (1) the adult probation and parole division of the corrections department shall prepare a predisposition report for a serious youthful offender; (2) the department shall prepare a predisposition report for a serious youthful offender who is convicted of an offense other than first degree murder; (3) the department shall prepare a predisposition report for a youthful offender concerning the youthful offender's amenability to treatment and if: (a) the court determines that a juvenile disposition is appropriate, the department shall prepare a subsequent predisposition report; or (b) the court makes the findings necessary to impose an adult sentence pursuant to Section 32A-2-20 NMSA 1978, the adult probation and parole division of the corrections department shall prepare a subsequent predisposition report; and (4) the department shall prepare a predisposition report for a delinquent offender, upon the court's request. B. Where there are indications that the child may have a mental disorder or developmental disability, the court, on motion by the children's court attorney or that of counsel for the child, may order the child to be examined at a suitable place by a physician or psychiatrist, a licensed psychologist, a licensed professional clinical counselor or a licensed independent social worker prior to a hearing on the merits of the petition. An examination made prior to the hearing or as a part of the predisposition study and report shall be conducted on an outpatient basis, unless the court finds that placement in a hospital or other appropriate facility is necessary. C. The court, after a hearing, may order examination by a physician or psychiatrist, a licensed psychologist or a licensed professional clinical counselor or a licensed independent social worker of a parent or custodian whose ability to care for or supervise a child is an issue before the court. D. The court may order that a child adjudicated as a delinquent child be administered a predispositional evaluation by a professional designated by the department for purposes of diagnosis, with direction that the court be given a report indicating what disposition appears most suitable when the interests of the child and the public are considered. The evaluation shall be completed within fifteen days of the court's order and the preference shall be for performing the evaluation in the child's community. E. If a child is detained for purposes of performing a predispositional evaluation, it shall be completed within fifteen days and in no event shall a child be detained for more than fifteen days within a three-hundred-sixty-five-day period for a predispositional evaluation, unless for good cause shown. History: 1978 Comp., § 32A-2-17, enacted by Laws 1993, ch. 77, § 46; 1995, ch. 206, § 12; 2005, ch. 189, § 15; 2009, ch. 239, § 19. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection B, after "place by a physician", added "or psychiatrist" and after "licensed psychologist", added "a license professional clinical counselor"; in Subsection C, after "examination by a physician", added "or psychiatrist"; and after "psychologist or a licensed", added "professional clinical counselor or a licensed"; in Subsection D, after "delinquent child be", deleted "transferred to the facility designated by the secretary of the department for a period of not more than fifteen days within a three hundred sixty-five day time period"; added "administered a predispositional evaluation by a professional designated by the department"; and added the last sentence; deleted former Subsection E, which provided for a determination of the time when a child who was committed was to be released; and added Subsection E. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, changed "offenders" to the singular case in Subsection A and changed mental disorder and development disability from a state of being to a condition in Subsection B. The 1995 amendment, effective July 1, 1995, inserted "concerning the youthful offender's amenability to treatment and if" in Paragraph (3) of Subsection A and added Subparagraphs A(3)(a) and A(3)(b). Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-32 NMSA 1978 have been included in the annotations to this section. Procedure to determine amenability to treatment. — The trial court is required to request a report from the children, youth and families department on a youthful offender’s amenability to treatment and if the youthful offender is found not to be amenable to treatment, the trial court is required to request a subsequent predisposition report from the department of corrections and conduct a separate sentencing hearing. State v. Jose S., 2007-NMCA-146, 142 N.M. 829, 171 P.3d 768, cert. quashed, 2008- NMCERT-004, 144 N.M. 47, 183 P.3d 932. Relevancy of predisposition reports. — The court may properly call for information in deciding whether to accept or reject a consent decree or provide for a more favorable disposition of the child, as predisposition reports are relevant in deciding an appropriate disposition of the case, and calling for information on the child's background is consistent with the legislative purpose of providing a "program of supervision, care and rehabilitation." State v. Doe, 1978-NMCA-124, 92 N.M. 354, 588 P.2d 555, cert. denied, 92 N.M. 353, 588 P.2d 554. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). 32A-2-18. Judgment; noncriminal nature; nonadmissibility. A. The court shall enter a judgment setting forth the court's findings and disposition in the proceeding. A judgment in proceedings on a petition under the Delinquency Act resulting in a juvenile disposition shall not be deemed a conviction of crime nor shall it impose any civil disabilities ordinarily resulting from conviction of a crime nor shall it operate to disqualify the child in any civil service application or appointment. The juvenile disposition of a child and any evidence given in a hearing in court shall not be admissible as evidence against the child in any case or proceeding in any other tribunal whether before or after reaching the age of majority, except in sentencing proceedings after conviction of a felony and then only for the purpose of a presentence study and report. B. If a judgment resulting from a youthful offender or serious youthful offender proceeding under the Delinquency Act results in an adult sentence, a record of the judgment shall be admissible in any other case or proceeding in any other court involving the youthful offender or serious youthful offender. C. If a judgment on a proceeding under the Delinquency Act results in an adult sentence, the determination of guilt at trial becomes a conviction for purposes of the Criminal Code [30-1-1 NMSA 1978]. History: 1978 Comp., § 32A-2-18, enacted by Laws 1993, ch. 77, § 47; 1996, ch. 85, § 3. ANNOTATIONS The 1996 amendment, effective July 1, 1996, designated the existing language as Subsections A and C, and added Subsection B. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-33 NMSA 1978 have been included in the annotations to this section. Applicability of criminal appellate procedure does not make children's court matters criminal proceedings. — The applicability of appellate procedure for criminal cases to appeals from judgments of the children's court, where the child was alleged to be delinquent or in need of supervision, does not change the fact that children's court matters are not criminal proceedings. Health & Soc. Servs. Dep't v. Doe, 1978-NMCA- 045, 91 N.M. 675, 579 P.2d 801. Time before transfer and filing of information does not count. — A judgment in any proceedings on a petition under the Children's Code shall not be deemed to be a conviction of a crime. The period of time spent prior to the actual transfer and the filing of the criminal information does not count. State v. Howell, 1976-NMCA-020, 89 N.M. 10, 546 P.2d 858. Child not to be charged with crime. — A judgment in proceedings on a petition under the Children's Code shall not be deemed a conviction of a crime. Since the Children's Code refers to an act which would be a crime if committed by an adult, it is apparent that a child is not to be charged with a crime but rather with a delinquent act. 1973 Op. Att'y Gen. No. 73-14. Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 106 et seq. What constitutes delinquency or incorrigibility justifying commitment of infant, 45 A.L.R. 1533, 85 A.L.R. 1099. Sentence: consideration of accused's juvenile record in sentencing for offense committed as adult, 64 A.L.R.3d 1291. 43 C.J.S. Infants §§ 96 to 102. 32A-2-19. Disposition of an adjudicated delinquent offender. A. At the conclusion of the dispositional hearing, the court may make and include in the dispositional judgment its findings on the following: (1) the interaction and interrelationship of the child with the child's parents and siblings and any other person who may significantly affect the child's best interests; (2) the child's adjustment to the child's home, school and community; (3) the mental and physical health of all individuals involved, including consideration of such factors as the child's brain development, maturity, trauma history and disability; (4) the wishes of the child as to the child's custodian; (5) the wishes of the child's parents as to the child's custody; (6) whether there exists a relative of the child or other individual who, after study by the department, is found to be qualified to receive and care for the child; (7) the availability of services recommended in the predisposition report; and (8) the ability of the parents to care for the child in the home. B. If a child is found to be delinquent, the court may enter its judgment making any of the following dispositions for the supervision, care and rehabilitation of the child: (1) transfer legal custody to the department, an agency responsible for the care and rehabilitation of delinquent children, which shall receive the child at a facility designated by the secretary of the department as a juvenile reception facility. The department shall thereafter determine the appropriate placement, supervision and rehabilitation program for the child. The judge may include recommendations for placement of the child. Commitments are subject to limitations and modifications set forth in Section 32A-2-23 NMSA 1978. The types of commitments include: (a) a short-term commitment of one year in a facility for the care and rehabilitation of adjudicated delinquent children. No more than nine months shall be served at the facility and no less than ninety days shall be served on supervised release, unless: 1) a petition to extend the commitment has been filed prior to the commencement of supervised release; 2) the commitment has been extended pursuant to Section 32A-2-23 NMSA 1978; or 3) supervised release is revoked pursuant to Section 32A-2-25 NMSA 1978; (b) a long-term commitment for no more than two years in a facility for the care and rehabilitation of adjudicated delinquent children. No more than twenty-one months shall be served at the facility and no less than ninety days shall be served on supervised release, unless: 1) supervised release is revoked pursuant to Section 32A- 2-25 NMSA 1978; or 2) the commitment is extended pursuant to Section 32A-2-23 NMSA 1978; (c) if the child is a delinquent offender who committed one of the criminal offenses set forth in Subsection J of Section 32A-2-3 NMSA 1978, a commitment to age twenty-one, unless sooner discharged; or (d) if the child is a youthful offender, a commitment to age twenty-one, unless sooner discharged; (2) place the child on probation under those conditions and limitations as the court may prescribe; (3) place the child in a local detention facility that has been certified in accordance with the provisions of Section 32A-2-4 NMSA 1978 for a period not to exceed fifteen days within a three hundred sixty-five day time period; or if a child is found to be delinquent solely on the basis of Paragraph (3) of Subsection A of Section 32A-2-3 NMSA 1978, the court shall only enter a judgment placing the child on probation or ordering restitution or both; or (4) if a child is found to be delinquent solely on the basis of Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978, the court may make any disposition provided by this section and may enter its judgment placing the child on probation and, as a condition of probation, transfer custody of the child to the department for a period not to exceed six months without further order of the court; provided that this transfer shall not be made unless the court first determines that the department is able to provide or contract for adequate and appropriate treatment for the child and that the treatment is likely to be beneficial. C. When the child is an Indian child, the Indian child's cultural needs shall be considered in the dispositional judgment and reasonable access to cultural practices and traditional treatment shall be provided. D. A child found to be delinquent shall not be committed or transferred to a penal institution or other facility used for the execution of sentences of persons convicted of crimes. E. Whenever the court vests legal custody in an agency, institution or department, it shall transmit with the dispositional judgment copies of the clinical reports, predisposition study and report and other information it has pertinent to the care and treatment of the child. F. Prior to any child being placed in the custody of the department, the department shall be provided with reasonable oral or written notification and an opportunity to be heard. G. In addition to any other disposition pursuant to Subsection B of this section, the court may make an abuse or neglect report for investigation and proceedings as provided for in the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978]. The report may be made to a local law enforcement agency, the department or a tribal law enforcement or social service agency for an Indian child residing in Indian country. H. In addition to any other disposition pursuant to this section or any other penalty provided by law, if a child who is fifteen years of age or older is adjudicated delinquent on the basis of Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978, the child's driving privileges may be denied or the child's driver's license may be revoked for a period of ninety days. For a second or a subsequent adjudication, the child's driving privileges may be denied or the child's driver's license revoked for a period of one year. Within twenty-four hours of the dispositional judgment, the court may send to the motor vehicle division of the taxation and revenue department the order adjudicating delinquency. Upon receipt of an order from the court adjudicating delinquency, the director of the motor vehicle division of the taxation and revenue department may revoke or deny the delinquent's driver's license or driving privileges. Nothing in this section may prohibit the delinquent from applying for a limited driving privilege pursuant to Section 66-5-35 NMSA 1978 or an ignition interlock license pursuant to the Ignition Interlock Licensing Act [66-5-501 to 66-5-504 NMSA 1978], and nothing in this section precludes the delinquent's participation in an appropriate educational, counseling or rehabilitation program. I. In addition to any other disposition pursuant to this section or any other penalty provided by law, when a child is adjudicated delinquent on the basis of Paragraph (6) of Subsection A of Section 32A-2-3 NMSA 1978, the child shall perform the mandatory community service set forth in Section 30-15-1.1 NMSA 1978. When a child fails to completely perform the mandatory community service, the name and address of the child's parent or legal guardian shall be published in a newspaper of general circulation, accompanied by a notice that the parent or legal guardian is the parent or legal guardian of a child adjudicated delinquent for committing graffiti. History: 1978 Comp., § 32A-2-19, enacted by Laws 1993, ch. 77, § 48; 1995, ch. 204, § 3; 1995, ch. 206, § 13; 1996, ch. 85, § 4; 2003, ch. 225, § 10; 2003, ch. 239, § 5; 2005, ch. 189, § 16; 2009, ch. 239, § 20; 2021, ch. 15, § 4. ANNOTATIONS Cross references. — For the procedure governing disciplinary hearings, see Rule 10- 246 NMRA. For escape from custody of the children, youth and families department, see 30-22-11.1 NMSA 1978. For aggravated escape from the custody of the children, youth and families department, see 30-22-11.2 NMSA 1978. Compiler's note. — Laws 2005, ch. 189 both amended and repealed Laws 2003, ch. 225, § 10. Laws 2005, ch. 189, § 77 repealed Laws 2003, ch. 225, § 10, effective June 17, 2005. Laws 2005, ch. 189, § 16 amended Laws 2003, ch. 225, § 10. The 2021 amendment, effective June 18, 2021, eliminated the imposition of fines for children found to be delinquent; and in Subsection B, after "the court may", deleted "impose a fine not to exceed the fine that could be imposed if the child were an adult and may", and in Paragraph B(3), after "ordering restitution or", deleted "imposing a fine not to exceed the fine that could be imposed if the child were an adult or any combination of these dispositions". The 2009 amendment, effective July 1, 2009, in Paragraph (3) of Subsection A, after "individuals involved", added the remainder of the sentence; and in Subparagraphs (a) and (b) of Paragraph (1) of Subsection B, changed "parole" to "supervised release". The 2005 amendment, effective June 17, 2005, in Subsection B(1), deleted the former provision that the court could enter a judgment making any disposition that is authorized for the disposition of a neglected or abused child; in Subsection B(1)(a). provided that a commitment may include a short term commitment in a facility for the care and rehabilitation of adjudicated delinquent children, that not more than nine months shall be served at the facility and not less than ninety days on parole unless a petition has been filed to extend the commitment, the commitment has been extended pursuant to a consent decree, or parole is revoked; Subsection B(1)(b), provided that with respect to a long term commitment may not be more than twenty one months at a facility for the care and rehabilitation of adjudicated delinquent children and not less than ninety days on parole unless the commitment has been extended pursuant to a consent decree or parole is revoked; and added Subsection G, which provided that the court may make an abuse or neglect report for investigation and proceedings to a local law enforcement agency, the children, youth and families department, or a tribal law enforcement or social service agency for an Indian child residing in Indian country. The 2003 amendment, effective April 6, 2003, — added "or an ignition interlock license pursuant to the Ignition Interlock Licensing Act" following "Section 66-5-35 NMSA 1978" in the last sentence of Subsection G. Laws 2003, ch. 225, § 10, effective July 1, 2003, also amended this section. The section was set out as amended by Laws 2003, ch. 239, § 5. See 12-1-8 NMSA 1978. The 1996 amendment, effective July 1, 1996, substituted "parents" for "parent" in Paragraphs A(1) and (5); added Subparagraph B(1)(c) and redesignated the following subparagraph accordingly; and added Subsection H. The 1995 amendment, effective July 1, 1995, deleted a provision regarding commitments of six months or less in long-term care facilities from Paragraph B(2)(a), and added Paragraph B(2)(c). Laws 1995, ch. 204, § 3, effective July 1, 1995, also amended this section. The section was set out as amended by Laws 1995, ch. 206, § 13. See 12-1-8 NMSA 1978. Commitment to age 21. — Subsection B(1)(c) of this section does not say that commitment to age 21 is authorized only for children who fit the definition of youthful offenders as set forth in Subsection I of Section 32A-2-3 NMSA 1978. State v. Indie C., 2006-NMCA-014, 139 N.M. 80, 128 P.3d 508, cert. denied, 2006-NMCERT-001, 139 N.M. 273, 131 P.3d 660. Children’s Code does not place limitations on type of probation conditions the court may order. State v. Wacey C., 2004-NMCA-029, 135 N.M. 186, 86 P.3d 611. Geographical and temporal limitations of probation condition do not bring it in the realm of banishment. State v. Wacey C., 2004-NMCA-029, 135 N.M. 186, 86 P.3d 611. Probation condition does not amount to banishment where child’s probation condition does not require him to leave the state or country entirely and does not trigger concerns about interstate or international relations, child’s restriction is limited to the period of his probation, not to exceed two years, and the probation condition was fashioned in response to concerns for both the child’s welfare, as residents talked about arming themselves against the child, and the welfare of the area, as child had plans for more serious regional criminal activity. State v. Wacey C., 2004-NMCA-029, 135 N.M. 186, 86 P.3d 611. Finding required for adjudication as delinquent. — A finding that a child is in need of care or rehabilitation is required in order to adjudicate the child to be a delinquent. State v. Doe, 1980-NMCA-148, 95 N.M. 90, 619 P.2d 194, superseded by statute, State v. Michael R., 1988-NMCA-087, 107 N.M. 794, 765 P.2d 767. Amenability to treatment. — Section 31-18-15.3F NMSA 1978 gives the district court the discretion to impose an adult sentence as indicated in Section 32A-2-20 NMSA 1978 based on a finding that a child is not amenable to treatment. If the district court finds the child is amenable to treatment, then the district court should impose a juvenile disposition in accordance with this section. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474. Consecutive commitments. — The children's court is not authorized to order consecutive commitments from one dispositional hearing, regardless of the number of petitions filed by the state. State v. Adam M., 2000-NMCA-049, 129 N.M. 146, 2 P.3d 883, cert. denied, 129 N.M. 249, 4 P.3d 1240. Non-consecutive commitments. — The imposition of two non-consecutive commitments based on separate petitions stemming from different underlying behavior during one dispositional hearing is authorized by Subsection B(2)(b) (now B(1)(b))of this section. State v. Jose S., 2005-NMCA-094, 138 N.M. 44, 116 P.3d 115, cert. denied, 2005-NMCERT-007, 138 N.M. 145, 117 P.3d 951. Indeterminate commitment unauthorized. — The children's court has no authority, pursuant to a plea agreement, to commit a child who has been adjudicated delinquent to the legal custody of the children, youth and families department for an indeterminate period up to the age of eighteen. State ex rel. Children, Youth & Families Dep't v. Paul G., 2006-NMCA-038, 139 N.M. 258, 131 P.3d 108. Authority to order detentions. — The children’s court had authority under its contempt power to order detentions. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164. Children’s court may use its contempt power as an alternative to probation revocation when the court places a child in detention for violation of grade court program, a condition of probation. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164. The children’s court sentence of two weekends of detention, one for each of two violations, was not an abuse of discretion. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164. Placement in a local detention facility is an alternative disposition available to the court and is not a limitation on the conditions of probation the court may prescribe. State v. Henry L., 1990-NMCA-030, 109 N.M. 792, 791 P.2d 67, cert. denied, 109 N.M. 704, 789 P.2d 1271. Without adjudication of delinquency child may not be transferred to custody of boys' school, because the school is an institution for the care and rehabilitation of delinquent children. State v. Doe, 1980-NMCA-148, 95 N.M. 90, 619 P.2d 194. Limited detention as condition of probation. — The language "place child on probation under those conditions and limitations as the court may prescribe" is sufficiently expansive to contemplate the imposition of limited detention as a condition of probation. State v. Henry L., 1990-NMCA-030, 109 N.M. 792, 791 P.2d 67, cert. denied, 109 N.M. 704, 789 P.2d 1271. Revocation of probation to punish for contempt. — The inherent power of the courts to punish for contempt does not validate a children's court order incarcerating a child found in need of supervision for contempt in violating probation, where such order contravenes the purpose of a reasonable Children's Code provision authorizing incarceration only after three occasions of probation violations have been found by the court. State v. Julia S., 1986-NMCA-039, 104 N.M. 222, 719 P.2d 449. Child is not entitled to precommitment credit for time served while on probation. State v. Dennis F., 1986-NMCA-081, 104 N.M. 619, 725 P.2d 595. First-degree murder. — The Delinquency Act authorizes an initial commitment to the age of 21 of a child who has been adjudicated delinquent for first-degree murder when the child was under 14 years of age. State v. Indie C., 2006-NMCA-014, 139 N.M. 80, 128 P.3d 508, cert. denied, 2006-NMCERT-001, 139 N.M. 273, 131 P.3d 660. Time limitation on custody transfer void. — While the court possesses the power to transfer legal custody of delinquent children to an agency responsible for their care and rehabilitation, any attempt by the court to impose a time limitation on the transfer of custody, even if well within the time limitations already authorized by statute, is void as being in excess of the court's jurisdiction. 1979 Op. Att'y Gen. No. 79-37. Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For note, "State v. Muniz: Authorizing Adult Sentences of Juveniles Absent a Conviction that Authorizes an Adult Sentence", see 35 N.M.L. Rev. 229 (2005) Am. Jur. 2d, A.L.R. and C.J.S. references.— 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 82 et seq. Discrimination in punishment for same offense between juveniles and mature offenders, 3 A.L.R. 1614, 8 A.L.R. 854. Constitutionality of statute committing child to reformatory without parents' consent, 60 A.L.R. 1342. Notice and hearing to parent before commitment of delinquent children, 76 A.L.R. 247. Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203. Defense of infancy in juvenile delinquency proceedings, 83 A.L.R.4th 1135. 32A-2-20. Disposition of a youthful offender. A. The court has the discretion to invoke either an adult sentence or juvenile sanctions on a youthful offender. The children's court attorney shall file a notice of intent to invoke an adult sentence within ten working days of the filing of the petition; provided that the court may extend the time for filing of the notice of intent to invoke an adult sentence, for good cause shown, prior to the adjudicatory hearing. A preliminary hearing by the court or a hearing before a grand jury shall be held, within ten days after the filing of the intent to invoke an adult sentence, to determine whether probable cause exists to support the allegations contained in the petition. B. If the children's court attorney has filed a notice of intent to invoke an adult sentence and the child is adjudicated as a youthful offender, the court shall make the following findings in order to invoke an adult sentence: (1) the child is not amenable to treatment or rehabilitation as a child in available facilities; and (2) the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders. C. In making the findings set forth in Subsection B of this section, the judge shall consider the following factors: (1) the seriousness of the alleged offense; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether a firearm was used to commit the alleged offense; (4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (5) the maturity of the child as determined by consideration of the child's home, environmental situation, social and emotional health, pattern of living, brain development, trauma history and disability; (6) the record and previous history of the child; (7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available; and (8) any other relevant factor, provided that factor is stated on the record. D. If a child has previously been sentenced as an adult pursuant to the provisions of this section, there shall be a rebuttable presumption that the child is not amenable to treatment or rehabilitation as a child in available facilities. E. If the court invokes an adult sentence, the court may sentence the child to less than, but shall not exceed, the mandatory adult sentence. A youthful offender given an adult sentence shall be treated as an adult offender and shall be transferred to the legal custody of an agency responsible for incarceration of persons sentenced to adult sentences. This transfer terminates the jurisdiction of the court over the child with respect to the delinquent acts alleged in the petition. A child given an adult sentence shall not be sentenced to life imprisonment without the possibility of release or parole. F. If a juvenile disposition is appropriate, the court shall follow the provisions set forth in Section 32A-2-19 NMSA 1978. A youthful offender may be subject to extended commitment in the care of the department until the age of twenty-one, pursuant to the provisions of Section 32A-2-23 NMSA 1978. G. A child fourteen years of age or older, charged with first degree murder, but not convicted of first degree murder and found to have committed a youthful offender offense as set forth in Subsection J of Section 32A-2-3 NMSA 1978, is subject to the dispositions set forth in this section. H. A child fourteen years of age or older charged with first degree murder, but found to have committed a delinquent act that is neither first degree murder nor a youthful offender offense as set forth in Subsection J of Section 32A-2-3 NMSA 1978, shall be adjudicated as a delinquent subject to the dispositions set forth in Section 32A-2-19 NMSA 1978. History: 1978 Comp., § 32A-2-20, enacted by Laws 1993, ch. 77, § 49; 1995, ch. 206, § 14; 1996, ch. 85, § 5; 2003, ch. 225, § 11; 2005, ch. 189, § 17; 2009, ch. 239, § 21; 2023, ch. 24, § 4. ANNOTATIONS Cross references. — For escape from custody of the children, youth and families department, see 30-22-11.1 NMSA 1978. For aggravated escape from the custody of the children, youth and families department, see 30-22-11.2 NMSA 1978. The 2023 amendment, effective June 16, 2023, prohibited the imposition of a sentence of life without the possibility of release or parole on a child given an adult sentence; and in Subsection E, after "delinquent acts alleged in the petition", added "A child given an adult sentence shall not be sentenced to life imprisonment without the possibility of release or parole.". Applicability. — Laws 2023, ch. 24, § 5 provided that the provisions of Laws 2023, ch. 24 apply retroactively to all offenders currently serving an adult sentence for an offense committed as a child. The 2009 amendment, effective July 1, 2009, in Paragraph (5) of Subsection C, at the beginning of the sentence, before "maturity", deleted "sophistication and"; after "environmental situation", deleted "emotional attitude and" and added "social and emotional health"; and after "pattern of living", added "brain development, trauma history and disability". The 2005 amendment, effective June 17, 2005, in Subsection G, provided that a child fourteen years of age or older, charged with first degree murder, but not convicted of first degree murder and found to have committed a youthful offender offence is subject to the dispositions of this section; and added Subsection H, which provided that a child fourteen years of age or older charged with first degree murder, but found to have committed a delinquent act that is not first degree murder or a youthful offender offence shall be adjudicated as a delinquent subject to the dispositions of Section 32A-2-19 NMSA 1978. The 2003 amendment, effective July 1, 2003, added present Subsection D and redesignated Subsections D to F as Subsections E to G. The 1996 amendment, effective July 1, 1996, added Paragraph C(3) and redesignated the following paragraphs accordingly, and substituted "fourteen to eighteen" for "sixteen or seventeen" in Subsection F. The 1995 amendment, effective July 1, 1995, in Subsection A, substituted "court" for "children's court judge", substituted "shall" for "must" preceding "file a notice", and deleted "children's" preceding "court" in the last sentence; in Paragraph (5) of Subsection C, substituted "child" for "juvenile"; in Subsection D, substituted "court" for "judge" and made a related change; and in Subsection E, substituted "court" for "judge" and "32A-2-19" for "32-2-19" in the first sentence and "32A-2-23" for "32-2-23" at the end. Untimely preliminary hearing. — Where a preliminary hearing was held twenty-four days after the state filed notice of intent to charge the child as a youthful offender, the court did not commit reversible error in denying the child’s motion to dismiss, because neither Rule 10-213 NMRA nor Section 32A-2-20 NMSA 1978 provides a remedy for a violation of the time limits for holding a preliminary hearing. State v. Leticia T., 2012- NMCA-050, 278 P.3d 553, rev’d, 2014-NMSC-020. Jury determination not required. — Federal law does not require that a juvenile’s amenability to treatment and eligibility for mental health commitment be determined by a jury. Gonzales v. Tafoya, 515 F.3d 1097 (10th Cir. 2008), cert. denied, 555 U.S. 890, 129 S. Ct. 211, 172 L. Ed . 2d 156 (2008). Standard of proof of amenability. — Federal law does not clearly require the beyond- a-reasonable-doubt standard of proof at the amenability hearing, and the court may apply the less exacting (but still substantial) clear-and-convincing standard of proof in assessing the evidence of amenability to treatment or rehabilitation. Gonzales v. Tafoya, 515 F.3d 1097 (10th Cir. 2008), cert. denied, 555 U.S. 890, 129 S. Ct. 211, 172 L. Ed. 2d 156 (2008). Accessory to criminal sexual penetration — The legislature intended that juveniles adjudicated to be accessories to criminal sexual penetration be punished in the same way as juveniles adjudicated to have committed CSP. Juveniles who are accessories to criminal sexual penetration are youthful offenders. Section 32A-2-20 NMSA 1978 gives the court discretion whether to impose a juvenile sanction or, if certain requirements are met, an adult sentence. State v. Perez, 2002-NMCA-040, 132 N.M. 84, 44 P.3d 530, cert. denied, 132 N.M. 83, 44 P.3d 529. Amenability hearing is a condition precedent for exercising adult sentencing authority in youthful offender cases. — Only serious youthful offenders charged with first-degree murder can be tried in district court and automatically sentenced as adults if convicted. All others remain in the juvenile system until after adjudication and may be sentenced as adults only after an amenability hearing. State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474. The right to an amenability hearing cannot be waived. State v. Jones, 2010-NMSC- 012, 148 N.M. 1, 229 P.3d 474. First-degree murder charges voluntarily dismissed by the state. — If the state voluntarily dismisses a first-degree murder charge against defendant and substitutes a youthful offender offense, then from the moment the state drops the first-degree murder charge, defendant is a child who is entitled to the full range of protections afforded by the Delinquency Act and the court lacks authority to sentence defendant as an adult without first determining defendant’s amenability to treatment or rehabilitation as a juvenile. State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474. Where defendant, who was age 17, was originally charged as a serious youthful offender with first-degree murder of an infant child; the state subsequently voluntarily dismissed the first-degree murder charge against defendant after recognizing that the state lacked the evidence to prove the crime and substituted the charge of child abuse resulting in death; defendant pled guilty to child abuse resulting in death, agreed to an adult disposition, and received an adult sentence of 18 years imprisonment; and in sentencing defendant, the district court did not first determine whether defendant was amenable to treatment or rehabilitation as a juvenile, defendant was a youthful offender when defendant entered into the plea agreement and the court erred in sentencing defendant as a adult without first determining defendant’s amenability to treatment or rehabilitation as a juvenile. State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474. Appeal of an amenability determination is nonwaivable. — A challenge to an amenability determination presents a challenge to the jurisdiction of the district court to impose an adult sentence, and it may be raised on appeal notwithstanding the entry of a valid guilty plea and appellate waiver. State v. Rodriguez, 2023-NMSC-004, rev'g A-1- CA-37324, mem. op. (N.M. Ct. App. Nov. 27, 2019) (nonprecedential). Youthful offender may appeal amenability determination, notwithstanding guilty plea and appellate waiver. — Where defendant pleaded guilty to felony offenses committed when he was sixteen years old under a plea and disposition agreement, and following an amenability hearing, the district court imposed an adult sentence, and where defendant appealed the amenability determination, and on its own motion, the Court of Appeals held that under the plea and disposition agreement, defendant waived his right to appeal, the Court of Appeals erred in its determination that defendant waived his right to appeal, because a challenge to an amenability determination presents a jurisdictional argument that may be raised on appeal notwithstanding the entry of a valid guilty plea and appellate waiver. A juvenile’s guilty plea may neither waive the right to an amenability determination, nor can a juvenile waive the right to appeal the outcome of an amenability determination. State v. Rodriguez, 2023-NMSC-004, rev'g A-1-CA- 37324, mem. op. (N.M. Ct. App. Nov. 27, 2019) (nonprecedential). Right to jury trial does not apply to amenability determinations. — A determination of amenability to treatment or rehabilitation of a youthful offender pursuant to Section 32A-2-20 NMSA 1978 is not within the scope of the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.2d 435 (2000), and the sixth amendment’s guarantee of a jury trial does not apply to amenability proceedings. State v. Rudy B., 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726, overruling 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810. Subsections B and C of Section 32A-2-20 NMSA 1978 are facially unconstitutional under the due process clause of the fourteenth amendment, because they require the trial court, not a jury, to find the additional facts necessary to impose an adult sentence. State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810, cert. granted, 2009-NMCERT-009, overruling State v. Gonzales, 2001-NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726. Amenability to treatment. — Where defendant, who was a child offender under the juvenile system, pled guilty to second degree murder; defendant admitted that after a fight between the victim and defendant’s cousin had ended, defendant went to defendant’s car, opened the trunk, removed a sawed-off shotgun, loaded the shotgun and fired the shotgun at the victim; at the time the victim was shot, the victim was facing defendant with the victim’s hands in the air; defendant’s prior criminal history involved a firearm; defendant was married subsequent to the shooting; and defendant suffered from post-traumatic stress disorder because of the incident, the evidence was sufficient to support the court’s determination that defendant was not amenable to treatment. State v. Trujillo, 2009-NMCA-128, 147 N.M. 334, 222 P.3d 1040, cert. quashed, 2010- NMCERT-011, 150 N.M. 490, 262 P.3d 1143. Amenability determination not supported by substantial evidence. — Where child pleaded guilty to two counts of second-degree murder and three counts of intentional child abuse resulting in death for shooting and killing his father, mother, and three younger siblings, and where the district court found that the state failed to prove by clear and convincing evidence that child is not amenable to treatment or rehabilitation as a child in available facilities, the district court abused its discretion in committing child to the custody of the New Mexico children, youth and families department until child's twenty-first birthday, because the district court failed to consider and make findings on all the statutorily required factors of 32A-2-20(C) NMSA 1978, based its findings in the amendability order on a misapprehension of the law, and misunderstood, and then arbitrarily disregarded, the uncontradicted testimony of the experts who testified specifically about child's prospects for rehabilitation by the age of twenty-one. State v. Nehemiah G., 2018-NMCA-034, cert. denied. Amenability to treatment is a jury question. — The due process clause of the fourteenth amendment requires that the determination of whether an offender is amenable to treatment or rehabilitation or is eligible for commitment to an institution as a condition to imposing an adult sentence be made by a jury beyond a reasonable doubt. State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810, cert. granted, 2009-NMCERT-009, overruling State v. Gonzales, 2001-NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726. Constitutionality. — This section is not arbitrary or discriminatory and adequately provides for the elemental due process rights of a child under the constitution. State v. Ernesto M., 1996-NMCA-039, 121 N.M. 562, 915 P.2d 318, cert denied, 121 N.M. 444, 913 P.2d 251. Entitlement to dispositional hearing. — No matter what kind of youthful offender category a child falls under, that child is entitled to a dispositional hearing to determine whether he or she will be subject to juvenile sanctions or an adult sentence. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, aff'd in part, rev'd in part, 2006-NMSC-030, 140 N.M. 24, 139 P.3d 184. Meaning of "offense less than first-degree murder." — Had the legislature intended to limit the scope of Subsection G of this section to lesser-included offenses of first- degree murder, it could have expressed that intent by using the phrase "lesser-included offense". Instead, the legislature meant Subsection G to apply to all crimes other than first-degree murder, which are "lesser crimes" in the sense that they carry lesser penalties than life imprisonment or death. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474. Sentencing as adult for unlisted crime. — A juvenile who is adjudicated for any of the offenses listed under Section 32A-2-3I NMSA 1978 (now Section 32A-2-3J NMSA) may be subject to adult sanctions under this section for any other offense in the same case. State v. Montano, 1995-NMCA-065, 120 N.M. 218, 900 P.2d 967, cert. denied, 120 N.M. 68, 898 P.2d 120. District court had authority to impose an adult sentence on a juvenile who was originally charged as a serious youthful offender, but who subsequently pled guilty only to offenses that would not qualify for an adult sentence if brought independently. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474. Serious youthful offender not to be treated as delinquent child. — A serious youthful offender, upon conviction for a lesser crime than first-degree murder, should always be treated as a youthful offender, even when convicted of a crime that would otherwise categorize the child as a delinquent child. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474. Disposition of a youthful offender. — Children who are not convicted of first-degree murder and who appear to be amenable to rehabilitation have a basic and essential right not to be sentenced as adults unless the trial court fulfills the requirements of Subsections B and C of this section. State v. Hunter, 2001-NMCA-078, 131 N.M. 76, 33 P.3d 296. Sentencing for non-capital felonies. — The basic sentences prescribed by Section 31-18-15 NMSA 1978 are "mandatory" within the meaning of Subsection D of this section, while the alterations in the basic sentences allowed by Section 31-18-15.1 NMSA 1978 are discretionary and, therefore, circumscribed by the Children's Code (Section 32A-1-1 NMSA 1978 et seq.); thus, the maximum sentence that may be imposed upon a youthful offender convicted of a non-capital felony is the basic sentence, plus, if applicable, the enhancements prescribed by Sections 31-18-16 and 31-18-16.1 NMSA 1978 (now repealed). State v. Guerra, 2001-NMCA-031, 130 N.M. 302, 24 P.3d 334, cert. denied, sub nom. State v. Ruby G., 130 N.M. 459, 26 P.3d 103. Standard of proof applied to findings. — Neither the due process clause of the fourteenth amendment to the United States Constitution nor N.M. const. art. 11, § 4 require that findings under Subsection B be made by a jury beyond a reasonable doubt. State v. Gonzales, 2001-NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810. Weighing of factors. — Determination of the children's court judge that the order of enumeration of the factors set forth in this section were to be read in descending order of importance, and the application by the court of such methodology in his findings, did not prejudice the defendant child. State v. Ernesto M., 1996-NMCA-039, 121 N.M. 562, 915 P.2d 318, cert. denied, 121 N.M. 444, 913 P.2d 251. Amenability to treatment. — Even though the testimony of the experts was conflicting, the decision of the children's court judge that the defendant child was not amenable to treatment was supported by substantial evidence. State v. Ernesto M., 1996-NMCA- 039, 121 N.M. 562, 915 P.2d 318, cert. denied, 121 N.M. 444, 913 P.2d 251. Every factor listed in Subsection C provides important information about the child and the child's prospects for rehabilitation. State v. Gonzales, 2001-NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810. Section 31-18-15.3(F) NMSA 1978 gives the district court the discretion to impose an adult sentence as indicated in this section based on a finding that a child is not amenable to treatment. If the district court finds the child is amenable to treatment, then the district court should impose a juvenile disposition in accordance with Section 32A-2- 19 NMSA 1978. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute as stated in State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.. Eligibility for commitment. — In deciding whether defendant was eligible for commitment, the trial court was required to consider the seven factors listed in Subsection C. The court was not required to find eligibility based on facts that an expert deemed the child eligible for commitment under Section 32A-6-13I NMSA 1978, or that a treatment facility was willing and able to accept the child. State v. Gonzales, 2001- NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2009-NMCA- 104, 147 N.M. 45, 216 P.3d 810. The district court did not abuse its discretion in finding that defendant "is not amenable to treatment or rehabilitation as a child in available facilities," and that he is not likely to be rehabilitated in "facilities currently available." State v. Todisco, 2000-NMCA-064, 129 N.M. 310, 6 P.3d 1032, cert. quashed, 132 N.M. 484, 51 P.3d 527 (2002). Offense against person or property. — Sentencing of 17-year-old defendant as an adult upon conviction for shooting into a vehicle causing great bodily harm and aggravated assault with a deadly weapon was warranted based on consideration of the factors listed in this section. State v. Sosa, 1997-NMSC-032, 123 N.M. 564, 943 P.2d 1017 abrogated by State v. Porter, 2020-NMSC-020. Sentence not cruel and unusual punishment. — Sentencing a 17-year-old child as an adult to a 30-year term for rape and other crimes he admitted to committing was not cruel and unusual punishment. State v. Ernesto M., 1996-NMCA-039, 121 N.M. 562, 915 P.2d 318, cert. denied, 121 N.M. 444, 913 P.2d 251. Standard of review. — Because the trial court used the clear and convincing standard in its finding that defendant was not amenable to treatment as a juvenile or eligible for commitment, the court of appeals evaluated whether, viewing the evidence in the light most favorable to the state, the trial court could have found that the clear and convincing standard was met. State v. Gonzales, 2001-NMCA-025, 130 N.M. 341, 24 P.3d 776, overruled by State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810. Law reviews. — For note, "State v. Muniz: Authorizing Adult Sentencing of Juveniles Absent a Conviction That Authorizes an Adult Sentence", see 35 N.M.L. Rev. 229 (2005). 32A-2-21. Disposition of a child with a mental disorder or developmental disability in a delinquency proceeding. A. If in a hearing at any stage of a proceeding on a delinquency petition the evidence indicates that the child has or may have a mental disorder or developmental disability, the court may: (1) order the child detained if appropriate under the criteria established pursuant to the provisions of the Delinquency Act; and (2) initiate proceedings for the involuntary placement of the child as a minor with a mental disorder or developmental disability pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act [32A-6A-1 to 32A-6A-30 NMSA 1978]. B. If the child is placed for residential treatment or habilitation pursuant to the Children's Mental Health and Developmental Disabilities Act, the department shall retain legal custody during the period of involuntary placement or until further order of the court. C. If a child is committed to a psychiatric hospital for treatment or habilitation and in the event that the department should be required to pay more than four hundred dollars ($400) per day because of the individualized treatment plan, the annual costs over four hundred dollars ($400) per child per day will be reported annually by the department to the legislative finance committee. D. The child may remain in the residential treatment or habilitation facility pending the disposition of the delinquency petition. E. When a child in departmental custody needs involuntary placement for residential mental health or developmental disability services as a result of a mental disorder or developmental disability, the department shall request the children's court attorney to petition for that child's placement pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. F. A child subject to the provisions of the Delinquency Act who receives treatment in a residential treatment or habilitation program shall enjoy all the substantive and procedural rights set forth in the Children's Mental Health and Developmental Disabilities Act. G. A child's competency to stand trial or participate in his own defense may be raised by a party at any time during a proceeding. If the child has been accused of an act that would be considered a misdemeanor if the child were an adult and the child is found to be incompetent to stand trial, the court shall dismiss the petition with prejudice and may recommend that the children's court attorney initiate proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. In all other cases, the court shall stay the proceedings until the child is competent to stand trial; provided that a petition shall not be stayed for more than one year. The court may order treatment to enable the child to attain competency to stand trial and may amend the conditions of release pursuant to Sections 32A-2-11 and 32A-2-13 NMSA 1978. The child's competency to stand trial shall be reviewed every ninety days for up to one year. The court shall dismiss the petition without prejudice if, at any time during the year, the court finds that a child cannot be treated to competency or if, after one year, the court determines that a child is incompetent to stand trial or participate in his own defense. Upon dismissal, the court may recommend that the children's court attorney initiate proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. H. Involuntary residential treatment shall only occur pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. History: 1978 Comp., § 32A-2-21, enacted by Laws 1993, ch. 77, § 50; 1995, ch. 206, § 15; 2005, ch. 189, § 18. ANNOTATIONS The 2005 amendment, effective June 17, 2005, in Subsection G, provided that if a child has been accused of an act that is a misdemeanor if the child were an adult and the child is found to be incompetent to stand trial, the court shall dismiss the petition and recommend that the children's court attorney proceed under the Children's Mental Health and Development Disabilities Act; that in all other cases, the court shall stay the proceedings until the child is competent to stand trial, but not longer than one year; that the court may order treatment to enable the child to be competent to stand trail; that the child's competency shall be reviewed every ninety days for up to one year and that the court shall dismiss the petition during the year if the child cannot be treated to competency; and added Subsection H, which provided that involuntary residential treatment shall occur pursuant to the Children's Mental Health and Development Disabilities Act. The 1995 amendment, effective July 1, 1995, inserted "delinquency" following "child in a" in the section heading; substituted "Children's Mental Health and Developmental Disabilities Act" for "Children's Code" and made minor stylistic changes throughout the section; deleted former Subsections B, C, F, and G, related to involuntary placement and residential treatment facilities, and redesignated the remaining subsections accordingly; in Subsection A, deleted former Paragraph (2) relating to a stay of the petition and redesignated former Paragraph (3) as Paragraph (2); in Subsection B, deleted "or department of health" following "the department"; rewrote Subsection E; and added Subsections F and G. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-35 NMSA 1978 have been included in the annotations to this section. Disposition of petition regarding incompetent child. — Where the evidence persuades the court that a child cannot likely be treated to competency, the court may, in the sound exercise of its discretion, dismiss a delinquency petition without prejudice. In re Daniel H., 2003-NMCA-063, 133 N.M. 630, 68 P.3d 176. A trial court is not required to dismiss a petition in every case where the child is found incompetent to stand trial and not amenable to treatment; rather, the court has the discretion to proceed consistent with 10-221(D) NMRA (now 10-242(D) NMRA), stay the proceedings on the petition, and order conditions of release or treatment. Dismissal without prejudice is an additional option for the trial court under such circumstances. In re Daniel H., 2003-NMCA-063, 133 N.M. 630, 68 P.3d 176. Commitment to boys' school of mentally ill and delinquent child. — The children's court did not err in committing mentally ill, delinquent children to state boys' school and in ordering that psychiatric care be provided them at the school. State v. Doe, 1977- NMCA-066, 90 N.M. 572, 566 P.2d 121. Section confers legislative grant of jurisdiction to the courts. — Children's court had jurisdiction to transfer child to the custody of state health and social services (now human services) department for further study and a report on the child's condition. In re Doe, 1975-NMCA-152, 88 N.M. 632, 545 P.2d 491. Availability of accommodations controlling factor in determining admission. — Juvenile (now children's) courts do not have the power to commit juveniles to state institutions regardless of available accommodations. Availability of accommodations is made the controlling factor in determining admissions, and this question rests solely with the relators and not with the court. Carter v. Montoya, 1966-NMSC-021, 75 N.M. 730, 410 P.2d 951. Court did not abuse its discretion in denying child's motion for transfer to more appropriate agency, where there was evidence that the only additional testing needed was an electroencephalogram and a neurological study which could be performed without the requested transfer. State v. Doe, 1978-NMCA-025, 91 N.M. 506, 576 P.2d 1137. Law reviews. — For article, "Treating Children Under the New Mexico Mental Health and Developmental Disabilities Code," see 10 N.M.L. Rev. 279 (1980). 32A-2-22. Continuance under supervision without judgment; consent decree; disposition. A. At any time after the filing of a delinquency petition and before the entry of a judgment, the court may, on motion of the children's court attorney or that of counsel for the child, suspend the proceedings and continue the child under supervision in the child's own home under terms and conditions negotiated with probation services and agreed to by all the parties affected. The court's order continuing the child under supervision under this section shall be known as a "consent decree". An admission of some or all of the allegations stated in the delinquency petition shall not be required for a consent decree order. B. If the child objects to a consent decree, the court shall proceed to findings, adjudication and disposition of the case. If the child does not object but an objection is made by the children's court attorney after consultation with probation services, the court shall, after considering the objections and the reasons given, proceed to determine whether it is appropriate to enter a consent decree and may, in its discretion, enter the consent decree. C. A consent decree shall remain in force for six months unless the child is discharged sooner by probation services. Prior to the expiration of the six-month period and upon the application of probation services or any other agency supervising the child under a consent decree, the court may extend the decree for an additional six months in the absence of objection to extension by the child. If the child objects to the extension, the court shall hold a hearing and make a determination on the issue of extension. D. If either prior to discharge by probation services or expiration of the consent decree the child allegedly fails to fulfill the terms of the decree, the children's court attorney may file a petition to revoke the consent decree. Proceedings on the petition shall be conducted in the same manner as proceedings on petitions to revoke probation. If the child is found to have violated the terms of the consent decree, the court may: (1) extend the period of the consent decree; or (2) make any other disposition that would have been appropriate in the original proceeding. E. A child who is discharged by probation services or who completes a period under supervision without reinstatement of the original delinquency petition shall not again be proceeded against in any court for the same offense alleged in the petition or an offense based upon the same conduct and the original petition shall be dismissed with prejudice. Nothing in this subsection precludes a civil suit against the child for damages arising from the child's conduct. F. A judge who pursuant to this section elicits or examines information or material about a child that would be inadmissible in a hearing on the allegations of the petition shall not, over the objection of the child, participate in any subsequent proceedings on the delinquency if: (1) a consent decree is denied and the allegations in the petition remain to be decided in a hearing where the child denies the allegations; or (2) a consent decree is granted but the delinquency petition is subsequently reinstated. G. If a consent decree has been entered pursuant to the filing of a delinquency petition based on Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978 for a child who is fifteen years of age or older, a condition of the consent decree agreement may be the denial of the child's driving privileges or the revocation of the child's driver's license for a period of ninety days. For the second or subsequent adjudication, the child's driving privileges may be denied or the child's driver's license revoked for a period of one year. Within twenty-four hours of the entry by the court of a decree consenting to the revocation or denial of the child's driver's license or driving privileges, the court shall send the decree to the motor vehicle division of the taxation and revenue department. Upon receipt of the decree from the court consenting to the denial or revocation of the child's driving privileges or driver's license, the director of the motor vehicle division of the taxation and revenue department shall revoke or deny the delinquent child's driver's license or driving privileges. Nothing in this section shall prohibit the delinquent child from applying for a limited driving privilege pursuant to Section 66-5-35 NMSA 1978 or an ignition interlock license pursuant to the Ignition Interlock Licensing Act [66-5-501 to 66-5-504 NMSA 1978], and nothing in this section precludes the delinquent child's participation in an appropriate educational, counseling or rehabilitation program. History: 1978 Comp., § 32A-2-22, enacted by Laws 1993, ch. 77, § 51; 1995, ch. 206, § 16; 2003, ch. 239, § 6; 2005, ch. 189, § 19. ANNOTATIONS Cross references. — For consent decrees, see Rule 10-228 NMRA. The 2005 amendment, effective June 17, 2005, in Subsection A, provided that an admission of some or all of the allegation stated in the delinquency petition shall not be required for a consent decree order and deleted former Subsection H which provided that the court shall not order more than one consent decree for a child in a two year period. The 2003 amendment, effective April 6, 2003, added "or an ignition interlock license pursuant to the Ignition Interlock Licensing Act" following "Section 66-5-35 NMSA 1978" in the last sentence of Subsection G. The 1995 amendment, effective July 1, 1995, made a minor stylistic change in Paragraph (2) of Subsection D, substituted "32A-2-2" for "32-2-2" in Subsection G, and added Subsection H. Time to hear petitions to revoke consent decrees. — The Children’s Code explicitly mandates the use of Rule 10-226 NMRA (now 10-243 NMRA) for determining the applicable time limit within which the children’s court must hear a petition to revoke a consent decree. State v. Katrina G., 2007-NMCA-048, 141 N.M. 501, 157 P.3d 66. Appealability of consent decree. — Where there might be future consequences attendant upon a consent decree the consequences of the consent decree sufficiently aggrieve the child such that her appeal should be allowed. State v. Crystal B., 2001- NMCA-010, 130 N.M. 336, 24 P.3d 771. Discretion of court. — Accepting a consent decree is entirely within the discretion of the court. In re Crystal L., 2002-NMCA-063, 132 N.M. 349, 48 P.3d 87, cert. denied, 132 N.M. 397, 49 P.3d 76. Admission of guilt. — A consent decree may only be accepted by the court after the child has made an admission of guilt. In re Crystal L., 2002-NMCA-063, 132 N.M. 349, 48 P.3d 87 (decided under prior law). Timeliness of decree. — A child who goes to trial and is adjudicated to have committed delinquent acts cannot avail herself of a consent decree after the court or jury has entered a verdict. In re Crystal L., 2002-NMCA-063, 132 N.M. 349, 48 P.3d 87, cert. denied, 132 N.M. 397, 49 P.3d 76. Law reviews. — For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). 32A-2-23. Limitations on dispositional judgments; modification; termination or extension of court orders. A. A judgment transferring legal custody of an adjudicated delinquent child to an agency responsible for the care and rehabilitation of delinquent children divests the court of jurisdiction at the time of transfer of custody, unless the transfer of legal custody is for a commitment not exceeding fifteen days pursuant to the provisions of Section 32A-2-19 NMSA 1978, in which case the court retains jurisdiction. B. A judgment of probation or protective supervision shall remain in force for an indeterminate period not to exceed the term of commitment from the date entered. C. A child shall be released by an agency and probation or supervision shall be terminated by juvenile probation and parole services or the agency providing supervision when it appears that the purpose of the order has been achieved before the expiration of the period of the judgment. A release or termination and the reasons therefor shall be reported promptly to the court in writing by the releasing authority. D. Prior to the expiration of a short-term commitment of one year, as provided for in Section 32A-2-19 NMSA 1978, the court may extend the judgment for up to one six- month period if the court finds that the extension is necessary to safeguard the welfare of the child or the public safety. If a short-term commitment is extended, the mandatory ninety-day supervised release, as required by Section 32A-2-19 NMSA 1978, shall be included in the extension. Notice and hearing are required for any extension of a juvenile's commitment. E. Prior to the expiration of a long-term commitment, as provided for in Section 32A- 2-19 NMSA 1978, the court may extend the judgment for additional periods of one year until the child reaches the age of twenty-one if the court finds that the extension is necessary to safeguard the welfare of the child or the public safety. If a long-term commitment is extended, the mandatory ninety-day supervised release, as required by Section 32A-2-19 NMSA 1978, shall be included in the extension. Notice and hearing are required for any extension of a juvenile's commitment. F. Prior to the expiration of a judgment of probation, the court may extend the judgment for an additional period of one year until the child reaches the age of twenty- one if the court finds that the extension is necessary to protect the community or to safeguard the welfare of the child. G. The court may dismiss a motion if it finds after preliminary investigation that the motion is without substance. If the court is of the opinion that the matter should be reviewed, it may, upon notice to all necessary parties, proceed to a hearing in the manner provided for hearings on petitions alleging delinquency. The court may terminate a judgment if it finds that the child is no longer in need of care, supervision or rehabilitation or it may enter a judgment extending or modifying the original judgment if it finds that action necessary to safeguard the child or the public interest. H. A child may make a motion to modify a children's court or adult disposition within thirty days of the judge's decision. If the court is of the opinion that the matter should be reviewed, it may, upon notice to all necessary parties, proceed to a hearing in the manner provided for hearings on petitions alleging delinquency. I. The department may seek a bench warrant from the court when the child absconds from supervised release. History: 1978 Comp., § 32A-2-23, enacted by Laws 1993, ch. 77, § 52; 1995, ch. 206, § 17; 2003, ch. 225, § 12; 2005, ch. 189, § 20; 2009, ch. 239, § 22. ANNOTATIONS The 2009 amendment, effective July 1, 2009, deleted Paragraph (1) of Subsection A, which provided that the juvenile parole board had exclusive power to parole or release the child; deleted Paragraph (2) of Subsection A, which provided that the supervision of a child after release shall be conducted by the department; deleted Paragraph (3) of Subsection A, which provided that the time a child absconds from parole or probation tolls all time limits for filing a petition to revoke probation or parole and the computation of the period of probation or parole; in Subsections D and E, changed "parole" to "supervised release"; and added Subsection I. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, deleted the former provision in Paragraph A(3), which provided that a child who completes a short term commitment of one year, upon release, shall be placed on parole and supervision for ninety days; added Subsection D, which provided that prior to the expiration of a short-term commitment of one year, the court may extend the judgment for up to one six-month period and if the short-term commitment is extended, the mandatory ninety-day parole shall be included in the extension; and added the provision in Subsection E that if a long-term commitment is extended, the mandatory ninety-day parole shall be included in the extension. The 2003 amendment, effective July 1, 2003, added "subject to the provisions of Section 32A-7-8 NMSA 1978" at the end of Paragraph A(1); rewrote Paragraph A(2); added present Paragraph A(3); redesignated former Paragraph A(3) as Paragraph A(4). The 1995 amendment, effective July 1, 1995, substituted "32A-2-19" for "32-2-19" in Subsections A and D, deleted former Subsection E, relating to extension of six-month commitments for juveniles, redesignated the remaining subsections accordingly, and made a minor stylistic change in Subsection E. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-38 NMSA 1978 have been included in the annotations to this section. Court’s jurisdiction to modify disposition. — The children’s court may modify a child’s disposition after transfer of custody to the children, youth and families department when the court invites reconsideration of the child’s disposition and finds the modification necessary to safeguard the child or the public interest. State v. Dylan A., 2007-NMCA-114, 142 N.M. 467, 166 P.3d 1121, cert. quashed 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180. There is no conflict between Subsection G [H] of this section and 10-230.1 B NMRA (now 10-252 NMRA). In re Michael L., 2002-NMCA-076, 132 N.M. 479, 50 P.3d 574, cert. denied, 132 N.M. 484, 51 P.3d 527. Subsections F and G [G and H] set out exceptions to the general rule spelled out in Subsection A of this section. In re Michael L., 2002-NMCA-076, 132 N.M. 479, 50 P.3d 574, cert. denied, 132 N.M. 484, 51 P.3d 527. Age confinement must end. — Under the 1981 Children's Code, the courts do not have jurisdiction to extend a child's confinement beyond the age of eighteen. State v. Adam M., 1998-NMCA-014, 124 N.M. 505, 953 P.2d 40. The constitutional prohibition against ex post facto laws prevents the courts from applying the Children's Code adopted in 1993, which permits the confinement of a child until he or she reaches the age of twenty-one where the delinquent acts and original adjudication occurred while the prior code was in effect. State v. Adam M., 1998-NMCA- 014, 124 N.M. 505, 953 P.2d 40. Length of commitments. — All commitments under Delinquency Act represent maximum time that a child may spend in custody. State v. Indie C., 2006-NMCA-014, 139 N.M. 80, 128 P.3d 508, cert. denied, 2006-NMCERT-001, 139 N.M. 273, 131 P.3d 660. Court's jurisdiction to extend commitment. — The court's jurisdiction to extend a delinquent child's commitment was not affected by the fact that the juvenile parole board had issued a certificate of discharge. In re Ruben D., 2001-NMCA-006, 130 N.M. 110, 18 P.3d 1063, cert. denied, 130 N.M. 154, 20 P.3d 811. Evidence sufficient to extend commitment. — Evidence that the child did not make any progress in his rehabilitation for the first 18 months of his two-year commitment and of his anger management problems, coupled with his escape and his failure to obtain his graduate equivalency diploma was sufficient to find that an extension of his commitment was necessary. In re Ruben D., 2001-NMCA-006, 130 N.M. 110, 18 P.3d 1063, cert. denied, 130 N.M. 154, 20 P.3d 811. Commitment to boys' school for two years was improper. State v. Doe, 1979- NMCA-021, 93 N.M. 206, 598 P.2d 1166. Motion for reconsideration filed after thirty-day period. — Children's court was without jurisdiction to modify a commitment to the children, youth and families department, where the child's motion for reconsideration on grounds of abuse was filed after the thirty-day period. Instead, the child's remedy for alleged abuses is under Section 32A-4-3 NMSA 1978. In re Zac McV., 1998-NMCA-114, 125 N.M. 583, 964 P.2d 144, cert. denied, 126 N.M. 107, 967 P.2d 447. Child is not entitled to precommitment credit for time served while on probation. State v. Dennis F., 1986-NMCA-081, 104 N.M. 619, 725 P.2d 595. Court's jurisdiction ends upon transferring child to human services department [health care authority department]. — Once the children's court transfers legal custody of a child to the health and social services department (now health care authority department), the court's jurisdiction ends, and so, having transferred legal custody to the department, the children's court had no authority to order the department to place the physical custody of the child with any particular organization. Health & Soc. Servs. Dep't v. Doe, 1978-NMCA-045, 91 N.M. 675, 579 P.2d 801. Authority to petition for parole extension. — Probation officer has authority to petition the court for extension of the period of parole supervision of a child where such action is necessary to safeguard the welfare of the child or the public interest. State v. Doe, 1979-NMCA-024, 92 N.M. 589, 592 P.2d 189. Jurisdiction in subsequent proceeding. — Children's court could adjudicate child as delinquent and commit him to an indeterminate sentence not to exceed two years, notwithstanding his prior adjudication in another case. Moreover, the disposition was not rendered invalid by its effect on the child's eligibility for an alternative placement. In re Augustine R., 1998-NMCA-139, 126 N.M. 122, 967 P.2d 462. Children's court had jurisdiction to modify child's sentence four months after sentencing him to the custody of the children, youth and families department. State v. Carlos A., 1996-NMCA-082, 122 N.M. 241, 923 P.2d 608. Recommitment standard. — An order of recommitment under Subsection D must review the child's progress during his term of initial commitment; the acts that justified the original commitment cannot provide the sole basis for extending the commitment. State v. Sergio B., 2002-NMCA-070, 132 N.M. 375, 48 P.3d 764. Written motion was not required to allow the children's' court to modify a child's sentence. State v. Carlos A., 1996-NMCA-082, 122 N.M. 241, 923 P.2d 608. Court-invited motions. — 10-230.1 B NMRA (now 10-252 NMRA) makes no reference to court-invited motions allowed under Subsection F of this section. In re Michael L., 2002-NMCA-076, 132 N.M. 479, 50 P.3d 574, cert. denied, 132 N.M. 484, 51 P.3d 527. Time limit on court ruling. — Where 10-230.1 NMRA (now 10-252 NMRA) required juvenile's motion to reconsider, filed pursuant to Subsection 32A-2-23G (now H) NMSA 1978, to be ruled upon within 90 (now 60) days after filing, children's court erred in ruling on motion after the 90 (now 60) day period elapsed and the motion should have been deemed denied. In re Christobal V., 2002-NMCA-077, 132 N.M. 474, 50 P.3d 569, cert. denied, 132 N.M. 484, 51 P.3d 527. Court's authority after child in custody of department. — Once legal custody is in the department of human services, the children's court has no authority to prohibit the department from placing physical custody of the child with any particular person. In re Jacinta M., 1988-NMCA-100, 107 N.M. 769, 764 P.2d 1327. Sexual orientation of proposed custodian, standing alone, is not enough to support a conclusion that the person cannot provide a proper environment. In re Jacinta M., 1988- NMCA-100, 107 N.M. 769, 764 P.2d 1327. Time limitation on custody transfer void. — While the court possesses the power to transfer legal custody of delinquent children to an agency responsible for their care and rehabilitation, any attempt by the court to impose a time limitation on the transfer of custody, even if well within the time limitations already authorized by statute, is void as being in excess of the court's jurisdiction. 1979 Op. Att'y Gen. No. 79-37. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). 32A-2-23.1. Release eligibility. A. The department shall have exclusive jurisdiction and authority to release an adjudicated delinquent child during the term of the child's commitment, consistent with the provisions of the Victims of Crime Act [Chapter 31, Article 26 NMSA 1978]. In determining whether to release a child, the department shall give due consideration to public safety, the extent to which the child has been rehabilitated, the adequacy and suitability of the proposed release plan and the needs and best interests of the child, including the child's need for behavioral health or medical services that are not available in facilities for adjudicated delinquent children. B. The decision to grant or deny release shall be made by the secretary of children, youth and families or the secretary's designee. The department may impose such conditions of release as it deems appropriate. C. A child is eligible for release any time after the entry of a judgment transferring legal custody to the department, and the department may consider a reasonable request for release from the child at any time sixty days after the child has been committed. D. In the event release for a child is denied by the department after release is recommended for the child by the juvenile public safety advisory board, or release is approved by the department after the board has recommended that the child not be released, within ten days, the board may request a review of the decision by the court of the judicial district from which legal custody of the child was transferred, and the department shall transmit the child's records to the court. The court shall have jurisdiction to review the matter without conducting a formal hearing and to issue an order that either denies or grants release to the child. If the board requests review under this section, the child shall not be released until such time as the court has issued a decision. If the board does not petition the district court for review of the department's decision to grant or deny release within ten days of the department's decision, the department's decision shall be final, and the department shall release the child or continue the commitment in accordance with the terms of its decision. E. The secretary of children, youth and families or the secretary's designee may review the case of any child upon the child's or the juvenile public safety advisory board's reasonable request at any time after release is denied. History: 1978 Comp., § 32A-2-23.1, as enacted by Laws 2009, ch. 239, § 23. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made this section effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-2-23.2. Release proceedings. A. When the department determines that a child is ready to be released, it shall provide a list of children to the juvenile public safety advisory board at least thirty-five days prior to the next regularly scheduled release consideration meeting. The department shall ensure that all other notifications of a pending release proceeding are accomplished consistent with the provisions of the Victims of Crime Act [Chapter 31, Article 26 NMSA 1978]. B. Release consideration meetings shall be held at least quarterly, are not open to the public and shall include the child, a quorum of the board and a representative of the department. The child's attorney shall receive notice and may be present at the release meeting. History: 1978 Comp., § 32A-2-23.2, as enacted by Laws 2009, ch. 239, § 24. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made this section effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-2-24. Probation revocation; disposition. A. A child on probation incident to an adjudication as a delinquent child who violates a term of the probation may be proceeded against in a probation revocation proceeding. A proceeding to revoke probation shall be begun by filing in the original proceeding a petition styled as a "petition to revoke probation". Petitions to revoke probation shall be screened, reviewed and prepared in the same manner and shall contain the same information as petitions alleging delinquency. Procedures of the Delinquency Act regarding taking into custody and detention shall apply. The petition shall state the terms of probation alleged to have been violated and the factual basis for these allegations. B. The standard of proof in probation revocation proceedings shall be evidence beyond a reasonable doubt and the hearings shall be before the court without a jury. In all other respects, proceedings to revoke probation shall be governed by the procedures, rights and duties applicable to proceedings on a delinquency petition. If a child is found to have violated a term of the child's probation, the court may extend the period of probation or make any other judgment or disposition that would have been appropriate in the original disposition of the case. History: 1978 Comp., § 32A-2-24, enacted by Laws 1993, ch. 77, § 53; 2009, ch. 239, § 25. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection B, after "violated a term of", deleted "his" and add "the child’s". Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-43 NMSA 1978 have been included in the annotations to this section. Rule 10-226 NMRA (now 10-243 NMRA) governs the time limits within which the children’s court must hear a petition to revoke probation. State v. Katrina G., 2007- NMCA-048, 141 N.M. 501, 157 P.3d 66. Probation revocation procedures not mandated. — This section does not mandate that in order for the children’s court to order detention for violation of probation, the court must follow probation revocation procedures in all instances. State v. Steven B., 2004- NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164. Valid probation order. — Since the order placing the child on probation was void, the situation was as if no probation order had been entered, and thus the order revoking probation was without legal effect despite the fact that the court attempted therein to supply the requisite finding that the child was in need of rehabilitation, absence of which had rendered the initial probation order void. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948. Governed by procedure applicable to delinquency petition. — Generally, proceedings to revoke probation are governed by the procedure applicable to proceedings on a delinquency petition. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948. Child to be informed of violated condition of probation. — Trial court violated child's right to due process by revoking his probation, absent competent evidence that respondent had been informed of the condition of probation which he allegedly violated. State v. Doe, 1986-NMCA-019, 104 N.M. 107, 717 P.2d 83. Juveniles entitled to confront witnesses during revocation proceedings. — A child whose probation is sought to be revoked shall be entitled to all the rights a child alleged to be delinquent is entitled to under the law, and since juveniles have the right to confront witnesses during delinquency proceedings, they must be accorded that right in probation revocation proceedings. State v. Trevor M., 2015-NMCA-009. Analysis of right to confrontation. — The right to confrontation provided by this section is the same right guaranteed by the Sixth Amendment to the United States Constitution, and consequently, the analysis of an alleged violation of this right is the same, and as in the analysis of the Sixth Amendment right, this right is not absolute, and deviation from live, face-to-face testimony may be permitted when an exception is necessary to further an important public policy, such exception being supported by a particularized showing of necessity by the district court. State v. Trevor M., 2015- NMCA-009. Child’s right to confront witnesses violated. — Where state’s witness, who could not attend the proceedings on the day of the hearing, testified by telephone over the child’s objections, and where the district court failed to make any findings on the necessity of telephonic testimony, the child’s right to confront witnesses against him was violated. State v. Trevor M., 2015-NMCA-009. New trial required only if violation of right is harmful. — A violation of the right to confrontation alone does not require a new trial, but only when a violation of the confrontation right is harmful to the defendant does the violation require a new trial, and the burden is on the state to show the violation was harmless. State v. Trevor M., 2015- NMCA-009. State failed to meet its burden. — Where state failed to address whether any violation of the child’s right to confrontation was harmless, the state failed to meet its burden, and therefore the child was entitled to a new probation revocation proceeding. State v. Trevor M., 2015-NMCA-009. Self-executing provision in a probation order, requiring automatic confinement in the juvenile detention center merely upon a reported absence from school, was invalid because it would circumvent the procedural requirements, but was separable from the remaining portion of the probation order. State v. Henry Don S., 1990-NMCA-029, 109 N.M. 777, 790 P.2d 1058, cert. denied, 109 N.M. 704, 780 P.2d 1271. Determination based on verified facts. — The determination of whether a juvenile violated the conditions of his probation must be based on verified facts. State v. Doe, 1986-NMCA-019, 104 N.M. 107, 717 P.2d 83. Proof of a probation violation. — To establish a violation of a probation agreement, the obligation is on the state to prove willful conduct on the part of the probationer. State v. Trevor M., 2015-NMCA-009. Insufficient evidence to support willful conduct. — Where child was discharged from an out-of-home placement, such placement being a condition of probation, and where all of the testimony by the juvenile probation officer and the social worker was improperly admitted in a juvenile probation revocation proceeding, the evidence was insufficient to support a finding of willful conduct on the part of the child. State v. Trevor M., 2015-NMCA-009. Revocation of juvenile parole for adult offenses. — The order of the children's court revoking the defendant's probation based on offenses committed by the defendant after he became an adult for which he was convicted and fined did not violate his constitutional rights guaranteeing protection against double jeopardy; since with respect to adult offenders any punishment resulting from revocation of a defendant's probation is punishment that relates to the person's original offense, an individual's subsequent prosecution for the same conduct in a new proceeding does not violate double jeopardy principles. In re Lucio F.T., 1994-NMCA-144, 119 N.M. 76, 888 P.2d 958. Applicability of Rules of Evidence. — The Rules of Evidence apply to the adjudicatory phase of juvenile probation revocation proceedings; however, they do not apply to the dispositional phase. State v. Erickson K., 2002-NMCA-058, 132 N.M. 258, 46 P.3d 1258, cert. quashed, 132 N.M. 732, 55 P.3d 428. Improper procedures. — If a special master lacks authority to hear a probation revocation petition, the court is without jurisdiction at the hearing on the petition. State v. Doe, 93 N.M. 621, 603 P.2d 731 (Ct. App. 1979). When the district judge disposes of the case more than 30 days after the petition is filed, the petition should be dismissed with prejudice. State v. Doe, 1979-NMCA-126, 93 N.M. 621, 603 P.2d 731. Revocation improper. — Revocation of the juvenile's probation was improper pursuant to this section where the juvenile did not willfully violate his probation agreement when he left the state because all evidence showed that the mother was responsible for making the decision to leave the state; further, the drug test result should not have been considered by the trial court because they did not meet the admissibility requirements. In re Bruno R., 2003-NMCA-057,133 N.M. 566, 66 P.3d 339, cert. denied, 133 N.M. 593, 66 P.3d 962. Extrajudicial admissions. — Without proof of drug testing, the admission of the juvenile could not stand as the sole evidence of the violation because extrajudicial admissions or confessions were not sufficient as evidence that a child committed delinquent acts absent other corroborating evidence. In re Bruno R., 2003-NMCA-057, 133 N.M. 566, 66 P.3d 339, cert. denied, 133 N.M. 593, 66 P.3d 962. Am. Jur. 2d, A.L.R. and C.J.S. references. — Right and sufficiency of allocation in probation revocation proceeding, 70 A.L.R.5th 533. 32A-2-25. Parole revocation; procedures. A. A child on parole from an agency that has legal custody who violates a term of parole may be proceeded against in a parole revocation proceeding conducted by the department or the supervising agency or by a hearing officer contracted by the department who is neutral to the child and the agency in accordance with procedures established by the department in cooperation with the juvenile parole board. A juvenile probation and parole officer may detain a child on parole status who is alleged to have violated a term or condition of parole until the completion and review of a preliminary parole revocation hearing. A child may waive the right to a preliminary parole revocation hearing after consultation with the child's attorney, parent, guardian or custodian. B. If a retake warrant is issued by the department upon the completion of the preliminary parole revocation hearing, the juvenile institution to which the warrant is issued shall promptly transport the child to that institution at the expense of the department. If a child absconds from parole supervision and is apprehended in another state after the issuance of a retake warrant by the department, the juvenile justice division of the department shall cause the return of the child to this state at the expense of the department. History: 1978 Comp., § 32A-2-25, enacted by Laws 1993, ch. 77, § 54; 2005, ch. 189, § 21. ANNOTATIONS The 2005 amendment, effective June 17, 2005, in Subsection A, provided that a child may be proceeded against by a hearing officer who is neutral to the child and the supervising agency and that a child may waive the right to a preliminary parole revocation hearing. 32A-2-26. Sealing of records. A. On motion by or on behalf of a person who has been the subject of a delinquency petition or on the court's own motion, the court shall vacate its findings, orders and judgments on the petition and order the legal and social files and records of the court, probation services, and any other agency in the case sealed. If requested in the motion, the court shall also order law enforcement files and records sealed. An order sealing records and files shall be entered if the court finds that: (1) two years have elapsed since the final release of the person from legal custody and supervision or two years have elapsed since the entry of any other judgment not involving legal custody or supervision; (2) the person has not, within the two years immediately prior to filing the motion, been convicted of a felony or of a misdemeanor involving moral turpitude or been found delinquent by a court and no proceeding is pending seeking such a conviction or finding; and (3) the person is eighteen years of age or older or the court finds that good cause exists to seal the records prior to the child's eighteenth birthday. B. Reasonable notice of the motion shall be given to: (1) the children's court attorney; (2) the authority granting the release; (3) the law enforcement officer, department and central depository having custody of the law enforcement files and records; and (4) any other agency having custody of records or files subject to the sealing order. C. Upon the entry of the sealing order, the proceedings in the case shall be treated as if they never occurred and all index references shall be deleted. The court, law enforcement officers and departments and agencies shall reply, and the person may reply, to an inquiry that no record exists with respect to the person. Copies of the sealing order shall be sent to each agency or official named in the order. D. Inspection of the files and records or the release of information in the records included in the sealing order may thereafter be permitted by the court only: (1) upon motion by the person who is the subject of the records and only to those persons named in the motion; and (2) in its discretion, in an individual case, to any clinic, hospital or agency that has the person under care or treatment or to other persons engaged in fact finding or research. E. Any finding of delinquency or need of services or conviction of a crime subsequent to the sealing order may at the court's discretion be used by the court as a basis to set aside the sealing order. F. A court may set aside a sealing order for the juvenile disposition of a youthful offender and any evidence given in a hearing in court for a youthful offender for the purpose of considering the setting of bail or other conditions of release of a person charged with a felony whether charged as an adult or a juvenile. G. A child who has been the subject of a petition filed pursuant to the provisions of the Delinquency Act shall be notified in writing by the department when the child reaches the age of eighteen or at the expiration of legal custody and supervision, whichever occurs later, that the department's records have been sealed and that the court, the children's court attorney, the child's attorney and the referring law enforcement agency have been notified that the child's records are subject to sealing. H. The department shall seal the child's files and records when the child reaches the age of eighteen or at the expiration of the disposition, whichever occurs later. The department shall notify the children's court attorney, the child's attorney and the referring law enforcement agency that the child's records are subject to sealing. I. Youthful offender records sealed pursuant to Subsection H of this section may be unsealed by the court along with any evidence given in a hearing in court for a youthful offender for the purpose of considering the setting of bail or other conditions of release of a person charged with a felony, whether charged as an adult or juvenile. J. A child who is determined by the court not to be a delinquent offender shall have the child's files and records in the instant proceeding automatically sealed by the court upon motion by the children's court attorney at the conclusion of the proceedings. K. After sealing, the department may store and use a person's records for research and reporting purposes, subject to the confidentiality provisions of Section 32A-2-32 NMSA 1978 and other applicable federal and state laws. History: 1978 Comp., § 32A-2-26, enacted by Laws 1993, ch. 77, § 55; 2003, ch. 225, § 13; 2009, ch. 239, § 26; 2016, ch. 9, § 2. ANNOTATIONS Cross references. — For right to inspect public records, see 14-2-1 NMSA 1978. For Arrest Record Information Act, seeChapter 29, Article 10 NMSA 1978. The 2016 amendment, effective May 18, 2016, allowed a court to set aside a sealing order for the juvenile disposition of a youthful offender, or unseal an already sealed record, and for any evidence given in a hearing in court for a youthful offender, for the purpose of considering the setting of bail or other conditions of release of a person charged with a felony; added a new Subsection F and redesignated former Subsections F and G as Subsections G and H, respectively; and added a new Subsection I and redesignated the succeeding subsections accordingly. The 2009 amendment, effective July 1, 2009, added Paragraph (3) of Subsection A; in Paragraph (3) of Subsection B, after "files and records", deleted "if those records are included in the motion"; in Subsection F, at the beginning of the sentence, after "A", changed "person" to "child"; deleted former Subsection G, which provided that the files of a person who is not the subject of a delinquency petition or who has not been determined to be a delinquent offender shall be sealed; deleted Subsection H, which provided that the files of a person who has not received new allegations of delinquency shall be sealed; and added Subsections G through I. The 2003 amendment, effective July 1, 2003, substituted "person" for "individual" throughout the section and added Subsections G and H. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-45 NMSA 1978 have been included in the annotations to this section. Record sealing discretionary when child commits felony following two "clean" years. — When an individual has been the subject of a petition filed under the Children's Code, has two subsequent "clean" years and then commits a series of felonies, the provisions of Subsection A of this section, relating to the sealing of children's courts records, are not mandatory but are discretionary, pursuant to Subsection E. State v. Doe, 1981-NMCA-097, 96 N.M. 648, 633 P.2d 1246. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980). Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 115 et seq. 32A-2-27. Injury to person or destruction of property; liability; costs and attorney fees; restitution. A. Any person may recover damages not to exceed four thousand dollars ($4,000) in a civil action in a court or tribunal of competent jurisdiction from the parent or guardian having custody and control of a child when the child has maliciously or willfully injured a person or damaged, destroyed or deprived use of property, real or personal, belonging to the person bringing the action. B. Recovery of damages under this section is limited to the actual damages proved in the action, not to exceed four thousand dollars ($4,000) taxable court costs and, in the discretion of the court, reasonable attorney fees to be fixed by the court or tribunal. C. Nothing contained in this section limits the discretion of the court to issue an order requiring damages or restitution to be paid by the child when the child has been found to be within the provisions of the Delinquency Act. D. Nothing contained in this section shall be construed so as to impute liability to any foster parent. History: 1978 Comp., § 32A-2-27, enacted by Laws 1993, ch. 77, § 56; 2005, ch. 189, § 22. ANNOTATIONS The 2005 amendment, effective June 17, 2005, deleted "or custodian" in Subsection A. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-46 NMSA 1978 have been included in the annotations to this section. Not violative of due process. — As the legislature can properly determine that a parental liability statute is reasonably necessary, such a statute does not deprive the parents of property without due process of law. Alber v. Nolle, 1982-NMCA-085, 98 N.M. 100, 645 P.2d 456. Equal protection. — A similar statute does not deprive parents of equal protection of the laws. Alber v. Nolle, 1982-NMCA-085, 98 N.M. 100, 645 P.2d 456. Legislative intent. — A similar statute constituted a legislative recognition of the moral duty owed by a parent to exercise reasonable care so as to control his minor child and prevent him from maliciously or willfully damaging the property of another. Potomac Ins. Co. v. Torres, 1965-NMSC-041, 75 N.M. 129, 401 P.2d 308. Definition of "willful" and "malicious" conduct. — There is very little, if any, difference between "willful" and "malicious" conduct, and an act done "willfully" or "maliciously" means the intentioned doing of a harmful act without just cause or excuse or an intentional act done in utter disregard for the consequences, and does not necessarily mean actual malice or ill will. Potomac Ins. Co. v. Torres, 1965-NMSC-041, 75 N.M. 129, 401 P.2d 308; Ortega v. Montoya, 1981-NMSC-135, 97 N.M. 159, 637 P.2d 841. Young child may be capable of willful and malicious conduct. — As a matter of law, a young child is not incapable of willful and malicious conduct in committing an intentional tort. It is for the trier of fact to determine, based upon the child's age, experience and mental capacity, whether the child acted in a willful and malicious manner. Ortega v. Montoya, 1981-NMSC-135, 97 N.M. 159, 637 P.2d 841. Statutory basis required for parental liability. — In the absence of statutory authority, there is no basis for holding the parents, qua parents, civilly liable for crimes of their minor child. Lamb v. Randall, 1980-NMCA-144, 95 N.M. 35, 618 P.2d 379. Requisite malice or willfulness may be readily inferred from defendant's act in driving at excessive speeds in a crowded business district, in attempting to evade police pursuit, and in striking a car which was stopped at a red traffic light. Potomac Ins. Co. v. Torres, 1965-NMSC-041, 75 N.M. 129, 401 P.2d 308. Child need not first be found liable. — There is no requirement, as a predicate for parental liability, that the child be first found liable. Alber v. Nolle, 1982-NMCA-085, 98 N.M. 100, 645 P.2d 456. Parents do not have property right in their child's teeth. — The court found no logical reason which would justify holding that either their child's teeth or the investment in orthodontic work on them should properly be considered as property of the parent, and for the damage or destruction of which recovery might be had. Ross v. Souter, 1970-NMCA-011, 81 N.M. 181, 464 P.2d 911. Pain and suffering is an actual damage recoverable under the parental liability statute. Alber v. Nolle, 1982-NMCA-085, 98 N.M. 100, 645 P.2d 456. Award of attorney fees on appeal requires statutory authority. Alber v. Nolle, 1982- NMCA-085, 98 N.M. 100, 645 P.2d 456. Seizure of money of inmate of boys' school. — The only legal way that the money of any boy in New Mexico boys' school can be taken or seized for damages to property caused by him is to institute a civil action, obtain a judgment and then levy execution on any money held by the institution. 1960 Op. Att'y Gen. No. 60-121. Am. Jur. 2d, A.L.R. and C.J.S. references. — Criminal responsibility of parent for act of child, 12 A.L.R.4th 673. Jurisdiction or power of juvenile court to order parent of juvenile to make restitution for juvenile's offense, 66 A.L.R.4th 985. Liability of adult assailant's family to third party for physical assault, 25 A.L.R.5th 1. 32A-2-28. Parental responsibility. A. In any complaint alleging delinquency, a parent of the child alleged to be delinquent may be made a party in the petition. If a parent is made a party and if a child is adjudicated a delinquent, the court may order the parent or parents to submit to counseling, participate in any probation or other treatment program ordered by the court and, if the child is committed for institutionalization, participate in any institutional treatment or counseling program including attendance at the site of the institution. The court shall order the parent to support the child committed for institutionalization by paying the reasonable costs of support, maintenance and treatment of the child that the parent is financially able to pay. The court may use the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonable payment. B. If a fine is imposed against a child by a court of this state, the parent of the child is not liable to pay the fine. C. The court may enforce any of its orders issued pursuant to this section by use of its contempt power. History: 1978 Comp., § 32A-2-28, enacted by Laws 1993, ch. 77, § 57. ANNOTATIONS Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of juvenile court defendant to be represented during court proceedings by parent, 11 A.L.R.4th 719. Criminal responsibility of parent for act of child, 12 A.L.R.4th 673. 32A-2-29. Motor Vehicle Code violations. A. The municipal, magistrate or metropolitan court shall have original exclusive jurisdiction over all Motor Vehicle Code [Chapter 66, Articles 1 through 8 NMSA 1978] or municipal traffic code violations when the person alleged to have committed the violation is a child, with the exception of those violations contained in Paragraph (1) of Subsection A of Section 32A-2-3 NMSA 1978 and all traffic offenses alleged to have been committed by the child arising out of the same occurrence pursuant to Subsection B of this section. B. If the court acquires jurisdiction over a child pursuant to Section 32A-2-3 NMSA 1978, it shall have exclusive jurisdiction over all traffic offenses alleged to have been committed by the child arising out of the same occurrence. C. Disposition as to any delinquent offenses shall be pursuant to the Delinquency Act. D. Disposition as to a Motor Vehicle Code or municipal traffic code violation in which jurisdiction is acquired as set forth in Subsection B of this section shall be pursuant to the respective Motor Vehicle Code or municipal traffic code in the children's court's discretion and to the extent that it neither conflicts with nor is inconsistent with the dispositional provisions of the Children's Code. E. All traffic offenses that the child is found to have committed by the municipal, magistrate or metropolitan court or for which the child is adjudicated delinquent by the children's court shall be subject to the reporting requirements and the suspension and revocation provisions of the Motor Vehicle Code and shall not be subject to the confidentiality provisions of the Delinquency Act. F. Only the children's court may incarcerate a child who has been found guilty of any Motor Vehicle Code or municipal traffic code violations. History: 1978 Comp., § 32A-2-29, enacted by Laws 1993, ch. 77, § 58; 2003, ch. 225, § 14; 2009, ch. 239, § 27. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection B, after "child pursuant to", deleted "any of those Motor Vehicle Code violations contained in Paragraph (1) of Subsection A of", and before "jurisdiction", added "exclusive"; and added Subsections C and D. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2003 amendment, effective July 1, 2003, substituted "Section 32A-2-3" for "Section 32-2-3" following "Subsection A of" in Subsections A and B; deleted "children's" near the beginning of Subsection B; in Subsection D, substituted "Only the children's court" for "No tribunal" at the beginning and deleted "without first securing the approval of the children's court" at the end. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-48 NMSA 1978 have been included in the annotations to this section. Failure of child-defendant to appear. — When a court has jurisdiction over violations of the Motor Vehicle Code by a child, that court also has authority to issue an arrest warrant pursuant to court rule when the child-defendant fails to appear as ordered. 1989 Op. Att'y Gen. No. 89-14. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). 32A-2-30. Indigency standard; fee schedule; reimbursement. A. The court shall use a standard adopted and information provided by the public defender department to determine indigency of children in proceedings on petitions alleging delinquency. B. The court shall use a fee schedule adopted by the public defender department when appointing attorneys to represent children in proceedings on petitions alleging delinquency. C. The court shall order reimbursement from the parents or guardians of a child who has received or desires to receive legal representation or another benefit under the Public Defender Act [Chapter 31, Article 15 NMSA 1978] after a determination is made that the child was not indigent according to the standard for indigency of children adopted by the public defender department. D. Any amounts recovered pursuant to this section shall be paid to the state treasurer for credit to the general fund. History: 1978 Comp., § 32A-2-30, enacted by Laws 1993, ch. 77, § 59; 2005, ch. 189, § 23. ANNOTATIONS Cross references. — For defense of indigents, see 31-16-1 to 31-16-10 NMSA 1978. For form for indigent defense services eligibility determination in children's court, see Rule 10-408 NMRA. The 2005 amendment, effective June 17, 2005, in Subsection C, deleted "or custodian". 32A-2-31. Child adjudicated delinquent; victim restitution; compensation; deductions. A. A delinquent child may be ordered by the court to pay restitution to the victim of the child's delinquent act. B. The department may provide compensation to a delinquent child engaged in a rehabilitative work program and shall promulgate necessary rules and regulations to provide deductions from that compensation for: (1) victim restitution ordered by the court and for transmitting those deductions to the clerk of that court; (2) the crime victims reparation fund and for transmitting those deductions to the state treasurer for credit to that fund; and (3) the reasonable costs incident to the confinement of the delinquent child. C. The deductions provided by Subsection B of this section shall not exceed fifty percent of the compensation earned by the child and shall not be less than five percent of that compensation. History: 1978 Comp., § 32A-2-31, enacted by Laws 1993, ch. 77, § 60. 32A-2-32. Confidentiality; records. A. All records pertaining to the child, including all related social records, behavioral health screenings, diagnostic evaluations, psychiatric reports, medical reports, social studies reports, records from local detention facilities, client-identifying records from facilities for the care and rehabilitation of delinquent children, pre-parole or supervised release reports and supervision histories obtained by the juvenile probation office, parole officers and the juvenile public safety advisory board or in possession of the department, are confidential and shall not be disclosed directly or indirectly to the public. B. The disclosure of all mental health and developmental disability records shall be made pursuant to the Children's Mental Health and Developmental Disabilities Act [32A- 6A-1 to 32A-6A-30 NMSA 1978]. C. The records described in Subsection A of this section, other than mental health and developmental disability records, shall be disclosed only to any of the following, provided that the agency, person or institution receiving information shall not re-release the information without proper consent or as otherwise provided by law: (1) court personnel; (2) the child's court appointed special advocates; (3) the child's attorney or guardian ad litem representing the child in any matter; (4) department personnel; (5) corrections department personnel; (6) law enforcement officials when the request is related to the investigation of a crime; (7) district attorneys or children's court attorneys; (8) a state government social services agency in any state; (9) those persons or entities of a child's Indian tribe specifically authorized to inspect such records pursuant to the federal Indian Child Welfare Act of 1978, the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978] or any regulations promulgated under those acts; (10) tribal juvenile justice system and social service representatives; (11) a foster parent, if the records are those of a child currently placed with that foster parent or of a child being considered for placement with that foster parent, when the disclosure of the information is necessary for the child's treatment or care and shall include only that information necessary to provide for treatment and care of the child; (12) school personnel involved with the child if the records concern the child's educational needs, but shall only include that information necessary to provide for the child's educational planning and needs; (13) a health care or mental health professional involved in the evaluation or treatment of the child, the child's parents, guardians or custodian or other family members; (14) representatives of the protection and advocacy system; (15) the child's parent, guardian or legal custodian when the disclosure of the information is necessary for the child's treatment or care and shall include only that information necessary to provide for the treatment or care of the child; (16) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court who agrees not to otherwise release the records; (17) the child, if fourteen years of age or older; and (18) the attorney general and the office of child advocate and its employees and contractors, pursuant to the requirements of the Office of Child Advocate Act [32A- 30-1 to 32A-30-15 NMSA 1978], if the records are needed for the purpose of implementing that act. D. If disclosure of otherwise confidential records is made to the child or any other person or entity pursuant to a valid release of information signed by the child, all victim or witness identifying information shall be redacted or otherwise deleted. E. Whoever intentionally and unlawfully releases any information or records closed to the public pursuant to this section or releases or makes other unlawful use of records in violation of this section is guilty of a petty misdemeanor. F. The department shall promulgate rules for implementing disclosure of records pursuant to this section and in compliance with state and federal law and the Children's Court Rules [Rule Set 10 NMRA]. History: 1978 Comp., § 32A-2-32, enacted by Laws 1993, ch. 77, § 61; 2003, ch. 225, § 15; 2005, ch. 189, § 24; 2009, ch. 239, § 28; 2025, ch. 13, § 16. ANNOTATIONS Cross references. — For the federal Developmental Disabilities Assistance and Bill of Rights Act, see 42 U.S.C. § 6000 et seq. For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901 et seq. For the federal Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991, see 42 U.S.C. § 10801 et seq. The 2025 amendment, effective July 1, 2025, provided additional purposes for which entities of a child's Indian tribe may access the child's confidential records, and included the attorney general and office of child advocate, and their employees and contractors, as entities that may have access to confidential records for the purpose of implementing the Office of Child Advocate Act; in Subsection C, Paragraph C(9), after "federal Indian Child Welfare Act of 1978" added "the Indian Family Protection Act," and added Paragraph C(18). The 2009 amendment, effective July 1, 2009, in Subsection A, after "All", deleted "social"; after "including all related", added "social records, behavioral health screenings"; after "pre-parole", added "or supervised release"; and after "parole officers and", deleted "parole" and added "the juvenile public safety advisory"; added Subsection B; in Subsection C, after "this section", added "other than mental health and developmental disability records"; and after "disclosed only to", added the remainder of the sentence to the colon; in Paragraph (2) of Subsection C, at the beginning of the sentence, added "this child’s"; in Paragraph (e) of Subsection C, after "guardian ad litem", added "representing the child in any matter"; deleted former Paragraph (5) of Subsection C, which listed a local substitute care review board or agency contracted to implement local substitute care review boards; in Paragraph (6) of Subsection C, after "officials", added the remainder of the sentence; in Paragraph (7) of Subsection C, after "attorneys", added the remainder of the sentence; deleted former Paragraph (9) of Subsection C, which listed state government social services agencies; deleted former Paragraph (10) of Subsection C, which listed persons or entities of a child’s Indian tribe; deleted former Paragraph (11) of Subsection C, which listed tribal juvenile justice system and social service representatives; deleted former Paragraph (12) of Subsection C, which listed a foster parent; deleted former Paragraph (13) of Subsection C, which listed school personnel; deleted former Paragraph (14) of Subsection C, which listed health care or mental health professionals involved in the treatment or evaluation of the child, or the child’s parents, guardians or custodian or other family members; deleted former Paragraph (15) of Subsection C, which listed representatives of the protection and advocacy system; deleted former Paragraph (16) of Subsection C, which listed the child’s parents, guardian or legal custodian; added Paragraphs (8) through (15) and (17) of Subsection C; in Paragraph (16) of Subsection C, after "work of the court", added "who agrees not to otherwise release the records"; and added Subsection D. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, in Subsection A, provided that all records pertaining to the child, including all related diagnostic evaluations and records from local detention facilities, client-identifying records from facilities for the care and rehabilitation of delinquent children, are confidential; in Subsection B, provided that records may be disclosed only to the listed persons or entities; in Subsection B(12), provided that records may be disclosed to a foster parent when the disclosure is necessary for the child's treatment or care; in Subsection B(13), provided that records may be disclosed to school personnel for the child’s educational planning; in Subsection B(15), deleted the former provision that records could be disclosed to representatives of the protection and advocacy system pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991; added Subsection B(16), which provided that records may be disclosed to the child's parent, guardian or legal custodian when necessary for the child's treatment or care; and added Subsection D to provide that the department shall promulgate rules for implementing the disclosure of records. The 2003 amendment, effective July 1, 2003, inserted "attorney or" in Paragraph B(3) and inserted "Amendments" following "Mentally Ill Individuals" in Paragraph B(15). 32A-2-32.1. Information not to be disclosed on a public access web site. A state agency or a political subdivision of the state, including a school district, county, municipality or home-rule municipality, shall not disclose on a public access web site maintained by it any information concerning the following: A. an arrest or detention of a child; B. delinquency proceedings for a child; C. an adjudication of a child; D. an adult sentence imposed on a child, except information required to be disclosed pursuant to the Sex Offender Registration and Notification Act [29-11A-1 NMSA 1978]; or E. social records pertaining to a child as provided in Section 32A-2-32 NMSA 1978. History: Laws 2007, ch. 96, § 1. ANNOTATIONS Effective dates. — Laws 2007, ch. 96, § 2 made the section effective July 1, 2007. 32A-2-33. Child in possession of a firearm on school premises; detention; hearing. A. If a public school administrator or employee has reasonable cause to believe that a child is in possession of or has been in possession of a firearm on school premises in violation of Section 30-7-2.1 NMSA 1978, the administrator or employee shall immediately report the child's actions to a law enforcement agency and the children, youth and families department. B. Upon receipt of a report pursuant to Subsection A of this section, the law enforcement agency may conduct an investigation to determine if there is probable cause to believe that the child possessed a firearm on school premises. C. If the law enforcement agency determines there is probable cause to believe that the child possessed a firearm on school premises, the law enforcement agency may take the child into custody and deliver the child to a detention facility licensed by the department. After the child is delivered to a detention facility, the department shall comply with the notification provisions set forth in Subsection C of Section 32A-2-10 NMSA 1978. The child shall be detained in the detention facility, pending a detention hearing pursuant to the provisions of Section 32A-2-13 NMSA 1978. D. As used in this section, "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosion; the frame or receiver of any such weapon; or any firearm muffler or firearm silencer. "Firearm" includes any handgun, rifle or shotgun. History: Laws 1999, ch. 216, § 1; 2003, ch. 225, § 16. ANNOTATIONS The 2003 amendment, effective July 1, 2003, deleted "the federal Gun-Free Schools Act of 1994 or" following "in violation of" in Subsection A; substituted "may" for "shall immediately" following "law enforcement agency" in Subsections B and C; and added "As used in this section" at the beginning of Subsection D. ARTICLE 3 Family in Need of Services (Repealed.) 32A-3-1. Repealed. History: 1978 Comp., § 32A-3-1, enacted by Laws 1993, ch. 77, § 62; repealed by Laws 2005, ch. 189, § 77. ANNOTATIONS Repeals. — Laws 2005, ch. 189, § 77 repealed 32A-3-1 NMSA 1978, as enacted by Laws 1993, ch. 77, § 62, the short title of the Family in Need of Services Act, effective June 17, 2005. Compiler's notes. — Section 32A-3-1 NMSA 1978 was originally enacted as 32-3-1 NMSA 1978 by Laws 1993, ch. 77, § 62, but were recompiled to Chapter 32A NMSA 1978, in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been included whenever possible. ARTICLE 3A Voluntary Placement and Family Services ANNOTATIONS Compiler's notes. — Sections 32A-3A-1 to 32A-3A-10 NMSA 1978 were originally enacted as 32-3A-1 to 32-3A-10 NMSA 1978 by Laws 1993, ch. 77, §§ 63 to 72, and were subsequently recompiled to this location in 1993 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. 32A-3A-1. Short title. Chapter 32A, Article 3A NMSA 1978 may be cited as the "Voluntary Placement and Family Services Act". History: 1978 Comp., § 32A-3A-1, enacted by Laws 1993, ch. 77, § 63; 2005, ch. 189, § 25; 2023, ch. 90, § 4. ANNOTATIONS The 2023 amendment, effective July 1, 2023, changed the name of the Family Services Act to the Voluntary Placement and Family Services Act, and removed provisions related to the purpose of the Family Services Act; in the section heading, deleted "purpose"; after "cited as the", added "Voluntary Placement and"; and deleted Subsection B. The 2005 amendment, effective June 17, 2005, stated the title of the act in Subsection A and provided in Subsection B that the purpose of the Family Services Act is to recognize that a child's behavior is symptomatic of a need for family services, to provide prevention, diversion and intervention services 32A-3A-2. Definitions. As used in the Voluntary Placement and Family Services Act: A. "child or family in need of family services" means a family: (1) whose child's behavior endangers the child's health, safety, education or well-being; (2) whose child is excessively absent from public school as defined in the Attendance for Success Act [22-12A-1 to 22-12A-14 NMSA 1978]; (3) whose child is absent from the child's place of residence for twenty-four hours or more without the consent of the parent, guardian or custodian; (4) in which the parent, guardian or custodian of a child refuses to permit the child to live with the parent, guardian or custodian; or (5) in which the child refuses to live with the child's parent, guardian or custodian; B. "family services" means services that address specific needs of the child or family; C. "guardian" means a person appointed as a guardian by a court or Indian tribal authority or a person authorized to care for a child by a parental power of attorney as permitted by law; D. "guardianship assistance agreement" means a written agreement entered into by the prospective guardian and the department or Indian tribe prior to the establishment of the guardianship by a court; E. "guardianship assistance payments" means payments made by the department to a kinship guardian or successor guardian on behalf of a child pursuant to the terms of a guardianship assistance agreement; F. "guardianship assistance program" means the financial subsidy program provided for in the Voluntary Placement and Family Services Act; G. "kinship" means the relationship that exists between a child and a relative of the child, a godparent, a member of the child's tribe or clan or an adult with whom the child has a significant bond; H. "managed care organization" means a person or entity eligible to enter into risk- based capitation agreements with the health care authority to provide health care and related services; I. "subsidized guardianship" means a guardianship that meets subsidy eligibility criteria pursuant to the Voluntary Placement and Family Services Act; and J. "voluntary placement agreement" means a written agreement between the department and the parent or guardian of a child. History: 1978 Comp., § 32A-3A-2, enacted by Laws 1993, ch. 77, § 64; 2005, ch. 189, § 26; 2019, ch. 223, § 15; 2023, ch. 90, § 5; 2025, ch. 156, § 4. ANNOTATIONS The 2025 amendment, effective June 20, 2025, defined the term "managed care organization" and revised the definition of "guardian" as used in the Voluntary Placement and Family Services Act; in Subsection C, after "Indian tribal authority" added "or a person authorized to care for a child by a parental power of attorney as permitted by law"; added new Subsection H and redesignated former Subsections H and I as Subsections I and J, respectively. The 2023 amendment, effective July 1, 2023, changed the name of the Family Services Act to the Voluntary Placement and Family Services Act, and defined "guardian," "guardianship assistance agreement," "guardianship assistance payments," "guardianship assistance program," "kinship," "subsidized guardianship," and "voluntary placement agreement"; after "As used in", added "Voluntary Placement and"; and added Subsections C through I. The 2019 amendment, effective June 14, 2019, revised the definition of "child or family in need of services" to include a family whose child is excessively absent from public school; and in Subsection A, added a new Paragraph A(2) and redesignated former Paragraphs A(2) through A(4) as Paragraphs A(3) through A(5). The 2005 amendment, effective June 17, 2005, in Subsection A(1), defined "child or family in need of family services" to mean a family whose child's behavior endangers the child's health, safety, education or well-being; deleted former Subsection B, which defined "family needs assessment"; in Subsection B, defined "family services" to mean services that address needs of the child or family; deleted former Subsection C(1) through (10), which listed service that where included in the former definition of "family services" and deleted former Subsection D, which defined "plan for family services" as an intervention plan based on the needs of the child and family. 32A-3A-3. Request for family services; withdrawal of request; presumption of good faith. A. Any child or family member who has a reasonable belief that the child or family is in need of family services may request family services from the department. B. Any person, including a public or private school principal, who has a reasonable belief that a child or family is in need of family services may submit a referral to the department. C. A family that requests or accepts family services may withdraw its request for or acceptance of family services at any time. D. A person who refers a child or family for family services is presumed to be acting in good faith and shall be immune from civil or criminal liability, unless the person acted in bad faith or with malicious purpose. History: 1978 Comp., § 32A-3A-3, enacted by Laws 1993, ch. 77, § 65; 2005, ch. 189, § 27; 2019, ch. 223, § 16. ANNOTATIONS The 2019 amendment, effective June 14, 2019, provided that public or private school principals may submit a referral to the department if they have a reasonable belief that a child or family is in need of family services; and in Subsection B, after "person", added "including a public or private school principal". The 2005 amendment, effective June 17, 2005, in Subsection A, provided that any child or family member who believes that a child is in need of family services may request family services from the department; in Subsection B, provided that any person who believes that a child is in need of family services may submit a referral to the department; and deleted former Subsection C, which authorized a representative of a school to submit a request for family services on behalf of a family to the department under listed certain circumstances. 32A-3A-4. Referral process. A. The department shall, subject to the availability of resources, design and implement a referral process to assist a child or family in accessing appropriate services. B. When the child involved in the referral process is an Indian child, the assessment and referral process shall include contact with the Indian child's tribe for the purpose of consulting and exchanging information. History: 1978 Comp., § 32A-3A-4, enacted by Laws 1993, ch. 77, § 66; 1995, ch. 206, § 18; 2005, ch. 189, § 28. ANNOTATIONS The 2005 amendment, effective June 17, 2005, in Subsection A, deleted the requirement that the state department of public education [public education department] and the department of health cooperate to design and implement an assessment and referral process for the purpose of assessing the needs of a family in need of services and making referrals; deleted former Subsections B and C, which provided for the elements of the assessment and referral process; and redesignated former Subsection D as Subsection B. The 1995 amendment, effective July 1, 1995, added "the department, the state department of public education [public education department], the local education agency and the department of health" following "child's family" in Subsection C. 32A-3A-5. Repealed. History: 1978 Comp., § 32A-3A-5, enacted by Laws 1993, ch. 77, § 67; repealed by Laws 2005, ch. 189, § 77. ANNOTATIONS Repeals. — Laws 2005, Chapter 189, § 77 repealed 32A-3A-5 NMSA 1978, as enacted by Laws 1993, ch. 77, § 67, relating to plan for family services, effective June 17, 2005. Because the former and new sections are substantially the same, the new section is considered a continuation of the former section. See 12-2A-14 NMSA 1978. For provisions of former section, see the 2004 NMSA 1978 on NMOneSource.com. 32A-3A-6. Voluntary placement outside home; voluntary placement agreement. A. The department may accept legal custody of a minor child from a parent or guardian for temporary voluntary placement outside the home through a voluntary placement agreement. B. When a parent is considering a voluntary placement agreement, the department shall notify the office of family representation and advocacy. The office of family representation and advocacy shall assign the parent or guardian legal counsel prior to the signing and for the duration of the voluntary placement agreement. Prior to the signing of the voluntary placement agreement, counsel shall explain to the parent or guardian: (1) the terms and consequences of the consent to the voluntary placement agreement, in detail; (2) that the parent or guardian can withdraw consent at any time and the child shall be returned within forty-eight hours of when the written or verbal demand was made; and (3) that before the expiration of the forty-eight hours, the department may prevent the immediate return of the child by filing a petition alleging neglect or abuse and by obtaining a court order granting the department temporary custody of the child. C. The department shall notify the office of family representation and advocacy when the voluntary placement agreement is terminated or expires. D. The parent or guardian may request a collaborative meeting with the department prior to signing or at any point throughout the duration of the voluntary placement agreement. The department shall schedule the collaborative meeting in a timely manner. E. Upon the signing of a voluntary placement agreement, the department shall notify the office of family representation and advocacy. The office of family representation and advocacy shall assign the child a guardian ad litem. Only an attorney with appropriate experience shall be appointed as guardian ad litem of the child. When a voluntary placement agreement is subject to court review, the guardian ad litem shall inform the court as to the child's wishes. F. The parent or guardian, child or department may file a petition for court review of the voluntary placement agreement prior to the signing or at any point throughout the duration of the voluntary placement agreement. G. If court review is requested prior to signing the voluntary placement agreement, before approving the voluntary placement agreement, the court shall ensure that the voluntary placement agreement is executed in writing. The court shall certify on the record that: (1) the terms and consequences of the consent were fully explained in detail and in a manner that is understandable to the parent or guardian; (2) the child's parent or guardian fully understands the English language or that the voluntary placement agreement was interpreted into the primary language of the child's parent or guardian; (3) the child's parent or guardian is voluntarily entering into the voluntary placement agreement; (4) confidentiality has been requested or indicated and execution of consent was made in a closed court proceeding not open to the public; and (5) the child's parent or guardian is of sound mind and judgment. History: 1978 Comp., § 32A-3A-6, enacted by Laws 1993, ch. 77, § 68; 2023, ch. 90, § 6. ANNOTATIONS The 2023 amendment, effective July 1. 2023, provided for temporary voluntary placement of minor children outside the home through a voluntary placement agreement; in the section heading, deleted "of child", "documentation", and added "voluntary placement agreement"; in Subsection A, deleted "Upon written application by a parent, guardian or custodian and, if good cause is shown", after "minor child", added "from a parent or guardian", and after "outside the home", added "through a voluntary placement agreement"; and deleted former Subsections B and C and added new Subsections B through G. 32A-3A-7. Voluntary placement; time limitation. A. A child may remain in voluntary placement for up to one hundred eighty consecutive days. B. Prior to the expiration of the voluntary placement agreement, if the parent or guardian agrees in writing that the child is to remain in voluntary placement for up to an additional one hundred eighty days, the department shall file a petition to extend the voluntary placement. The department shall provide notice of the hearing on the petition for extension to the parent or guardian. C. The court shall hold a hearing and enter a written final order within thirty days of the filing of the petition. If the court grants an extension of up to one hundred eighty days, the order shall contain findings that proper notice was given, the parent or guardian consents to the extension of the voluntary placement and the voluntary placement agreement is in the child's best interest. If an extension is denied, the court shall enter a written order denying the extension and directing the department to immediately return the child to the parent or guardian. D. In no event shall a child remain in voluntary placement for a period in excess of three hundred sixty-five days in any two-year period. E. Any placement described in this section shall not be considered abandonment by a parent, guardian or custodian or other family member. History: 1978 Comp., § 32A-3A-7, enacted by Laws 1993, ch. 77, § 69; 2005, ch. 82, § 1; 2023, ch. 90, § 7. ANNOTATIONS The 2023 amendment, effective July 1. 2023, revised the time limitations for voluntary placement of a minor child; deleted former Subsection A; and added new Subsections A through C and redesignated former Subsections B and C as Subsections D and E, respectively. The 2005 amendment, effective April 4, 2005, extended the time for temporary placements of children. 32A-3A-8. Voluntary placement; return of child to parent; department duty upon parent refusal to regain custody. A. At any time, a parent or guardian may demand and obtain the return of a child voluntarily placed outside the home without seeking or obtaining court approval. The child shall be returned within forty-eight hours of when the written or verbal demand was made. However, before the expiration of the forty-eight-hour period, the department may prevent the immediate return of the child by filing a petition pursuant to the Family in Need of Court-Ordered Services Act [Chapter 32A, Article 3B NMSA 1978] or the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] and proceeding under the applicable act. B. If the parent or guardian of the child refuses to or cannot accept the child back into the parent's or guardian's custody, before the department files a petition alleging that the child is a neglected child or that the child's family needs court-ordered family services, the department shall: (1) make reasonable efforts to place the child back in the custody of the parent or guardian and tailor the reasonable efforts to the facts and circumstances of the case and shall: (a) document in writing the details demonstrating the quality and quantity of services and assistance provided to alleviate the causes and conditions leading to the parent or guardian's refusal or inability to accept the child back into the parent or guardian's custody, on the court record; (b) assist the child's parent or guardian through the steps of a department case plan and with accessing or developing the resources necessary to satisfy the department case plan; and (c) conduct a comprehensive assessment of the circumstances of the child's family with a goal of reunification; (2) make reasonable efforts to maintain or reunite a child with the child's family by: (a) identifying and establishing appropriate services and assisting the child's parent or guardian to overcome barriers to reunification, including assisting the parent or guardian in obtaining those services; (b) conducting or causing to be conducted a diligent search for the child's extended family members and contacting and consulting with the child's extended family members and adult relatives to provide family structure and support for the child and the child's parent or guardian; (c) offering and employing culturally appropriate family preservation strategies; (d) taking steps to keep the child and the child's siblings together whenever possible; and (e) identifying community resources, including housing, financial assistance, transportation, mental health services, health care, substance use prevention and treatment and peer support services, and assisting the child's parent or guardian; and (3) record all efforts made toward reasonable efforts and report them to the court. History: 1978 Comp., § 32A-3A-8, enacted by Laws 1993, ch. 77, § 70; 2005, ch. 82, § 2; 2023, ch. 90, § 8. ANNOTATIONS The 2023 amendment, effective July 1. 2023, revised the children, youth and families department's duties related to the return of a child voluntarily placed outside the home to the child's parent or guardian, and revised provisions related to a parent or guardian's refusal to regain custody of a child voluntarily placed outside the home; in the section heading, deleted "Duty to file a petition" and added "voluntary placement; return of child to parent; department duty upon parent refusal to regain custody"; added Subsection A; and in Subsection B, after "If", deleted "any child has remained in voluntary placement for longer than three hundred sixty-five days in any two-year period and", after "custody", deleted "the department shall immediately file" and added "before the department files", after "court-ordered family services", added "the department shall", and added Paragraphs B(1) through B(3). The 2005 amendment, effective April 4, 2005, extended the time of placement after which the department is required to file a petition. 32A-3A-9. Repealed. History: 1978 Comp., § 32A-3A-9, enacted by Laws 1993, ch. 77, § 71; repealed by Laws 2023, ch. 90, § 29. ANNOTATIONS Repeals. — Laws 2023, ch. 90, § 29 repealed 32A-3A-9 NMSA 1978, as enacted by Laws 1993, ch. 77, § 71, relating to right to regain custody, effective July 1, 2023. For provisions of former section, see the 2022 NMSA 1978 on NMOneSource.com. 32A-3A-10. Voluntary placement; rights of parent. A. have visitation with the child; B. be informed of changes in the child's school or of changes in the child's placement by the department; C. authorize decisions regarding medical and dental care and behavioral health services, including decisions that affect the daily care, support, safety and well-being of the child; D. permit the department to consent to emergency services to ensure the safety and well-being of the child, including medical, dental or behavioral health treatment, if the department is unable to make immediate prior contact with the parent or guardian. The department shall notify the parent or guardian within two hours of making emergency decisions due to inability to make prior contact; E. consent to all nonemergency and nonroutine medical care provided for the child; F. make decisions regarding participation and attendance in cultural and religious events; G. make decisions of substantial legal significance; and H. serve as the educational decision maker unless the department determines that doing so would be contrary to the best interests of the child, in which case the foster parent or other substitute care provider will serve as the educational decision maker. History: 1978 Comp., § 32A-3A-10, enacted by Laws 1993, ch. 77, § 72; 2023, ch. 90, § 9. ANNOTATIONS The 2023 amendment, effective July 1, 2023, completely rewrote the section related to the rights of a parent or guardian whose child is in voluntary placement; in the introductory clause, deleted "Any parent, guardian or custodian whose child is in voluntary placement shall have the following rights with respect to the child:" and added "The parent or guardian whose child is in voluntary placement shall have the following rights to:"; and deleted former Subsections A through C and added new Subsections A through H. Am. Jur. 2d, A.L.R. and C.J.S. references. — Denial or restriction of visitation rights to parent charged with sexually abusing child, 1 A.L.R.5th 776. 32A-3A-11. Emergency placement; criminal history record check. A. In an emergency placement situation, when a child must be placed in a home due to the absence of parents or custodians, the department or a criminal justice agency shall perform a federal name-based criminal history record check of each adult residing in the home. The results of the name-based check shall be provided to the department, and, within fifteen days from the date that the name-based check was conducted, the department shall provide a complete set of each adult resident's fingerprints to the department of public safety for immediate submission to the federal bureau of investigation. The department of public safety shall positively identify the fingerprint subject, if possible, and forward the fingerprints to the federal bureau of investigation within fifteen calendar days from the date that the name-based search was conducted. The child shall be removed from the home immediately if any adult resident fails to provide fingerprints or written permission to perform a federal criminal history record check when requested to do so. B. When placement of a child in a home is denied as a result of a name-based criminal history record check of a resident and the resident contests that denial, the resident shall, within five business days, submit to the department a complete set of the resident's fingerprints with written permission allowing the department to forward the fingerprints to the department of public safety for submission to the federal bureau of investigation. The resident shall be entitled to review the information obtained from the resident's criminal history record check if that check was performed using the resident's fingerprints submitted pursuant to this subsection. C. The department may charge the federal fee for processing a fingerprint-based criminal history record check pursuant to this section. The department of public safety shall not charge a state fee for processing a fingerprint-based criminal history record check pursuant to this section. D. As used in this section, "emergency placement" refers to those limited instances when the department is placing a child in the home of private individuals, including neighbors, friends or relatives, as a result of sudden unavailability of the child's primary caretaker. History: Laws 2013, ch. 50, § 1; 2016, ch. 64, § 1. ANNOTATIONS The 2016 amendment, effective March 7, 2016, required immediate removal of children from emergency placement homes under certain circumstances, and allowed the children, youth and families department to perform criminal history record checks; in Subsection A, after the first occurrence of "the department", deleted "shall request that" and added "or", after "criminal justice agency", added "shall", and after "The child", deleted "may" and added "shall"; in Subsection B, added the last sentence; and in Subsection C, added "The department may charge the federal fee for processing a fingerprint-based criminal history record check pursuant to this section.", after "public safety", deleted "may" and added "shall not", after "charge a", deleted "reasonable" and added "state", and after "record check", added "pursuant to this section". 32A-3A-12. Foster families; free admission to museums and state parks; camping passes; fishing licenses. A. As provided in Subsection B of this section, foster parents and children in the custody of foster parents, young adults enrolled in the fostering connections program and children who are in the custody of the children, youth and families department or in tribal custody, who are residents of the state, shall be provided for free: (1) admission to state-owned museums and state parks; (2) a camping pass for up to three consecutive nights of overnight access to a state park; and (3) a fishing license. B. Eligibility for free admission shall be contingent on demonstration of proof of identity, residency and status as a foster parent, child in the custody of a foster parent, young adult enrolled in the fostering connections program or child in the custody of the children, youth and families department or in tribal custody in accordance with rules of the: (1) cultural affairs department, for free day-use admission to state-owned museums; (2) energy, minerals and natural resources department, for free day-use admission and camping passes to state parks; or (3) state game commission [state wildlife commission], for fishing licenses. History: Laws 2019, ch. 132, § 1; 2023, ch. 135, § 1. ANNOTATIONS Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Laws 2025, ch. 9, § 11 provided that references in law to the state game commission shall be deemed to be references to the state wildlife commission. The 2023 amendment, effective June 16, 2023, provided to foster families, enrollees of the fostering connections program and children in the custody of the children, youth and families department or in tribal custody free camping passes and fishing licenses and free admission to state-owned museums and state parks; in the section heading, added "camping passes; fishing licenses"; in the former introductory clause added "A. As provided in Subsection B of this section", added "young adults enrolled in the fostering connections program and children who are in the custody of the children, youth and families department or in tribal custody", and added new paragraph designations "(1), Paragraphs A(2) and A(3)"; add Subsection designation "B", and after "foster parent", added "young adult enrolled in the fostering connections program or child in the custody of the children, youth and families department or in tribal custody", and redesignated former Subsections A and B as Paragraphs B(1) and B(2), respectively, in Paragraph B(2), after "admission", added "and camping passes", and added Paragraph B(3). 32A-3A-13. Plan of safe care; guidelines; creation; data sharing; training. A. By July 1, 2026, the health care authority, in consultation with medicaid managed care organizations, private insurers, the office of superintendent of insurance, the children, youth and families department and the department of health, shall develop rules to guide hospitals, birthing centers, medical providers, medicaid managed care organizations and private insurers in the care of newborns who exhibit physical, neurological or behavioral symptoms consistent with prenatal drug exposure, withdrawal symptoms from prenatal drug exposure or fetal alcohol spectrum disorder. B. Rules shall include guidelines to hospitals, birthing centers, medical providers, medicaid managed care organizations and private insurers regarding: (1) participation in the plan of safe care development process, which may occur at a prenatal or perinatal medical visit and shall occur prior to a substance- exposed child's discharge from a hospital. The plan of safe care development process shall allow for the creation of a written plan of safe care that shall be sent to: (a) the child's primary care physician; (b) a medicaid managed care organization insurance plan care coordinator or a care coordinator employed by or contracted with the health care authority; (c) the child's parent, relative, guardian or caretaker who is present at discharge who shall receive a copy upon discharge. The plan of safe care shall be signed by an appropriate representative of the discharging hospital and the child's parent, relative, guardian or caretaker who is present at discharge; and (d) if the child's parent, relative, guardian, custodian or caretaker resides on tribal land, the respective Indian tribe shall be sent a copy of the plan of safe care within twenty-four hours of the child's discharge; (2) definitions and evidence-based screening tools, based on standards of professional practice, to be used by health care providers to identify a child born affected by substance use or withdrawal symptoms resulting from prenatal drug exposure or a fetal alcohol spectrum disorder. The rules shall include a requirement that all hospitals, birthing centers and prenatal care providers use the screening, brief intervention and referral to treatment program at all prenatal or perinatal medical visits and live births; (3) collection and reporting of data to meet federal and state reporting requirements, including the following: (a) by hospitals and birthing centers to the department when: 1) a plan of safe care has been developed; and 2) a family has been referred for a plan of safe care; (b) information pertaining to a child born and diagnosed by a health care professional as affected by substance abuse, withdrawal symptoms resulting from prenatal drug exposure or a fetal alcohol spectrum disorder; and (c) data collected by hospitals and birthing centers for use by the children's medical services of the family health bureau of the public health division of the department of health in epidemiological reports and to support and monitor a plan of safe care. Information reported pursuant to this subparagraph shall be coordinated with communication to insurance carrier care coordinators to facilitate access to services for children and parents, relatives, guardians, custodians or caretakers identified in a plan of safe care; (4) requirements for the health care authority to: (a) ensure that there is at least one care coordinator available in each birthing hospital in the state; (b) ensure that all substance-exposed children who have a plan of safe care receive care coordination to implement the plan of safe care; (c) provide training to hospital staff, birthing center staff and prenatal care providers on the screening, brief intervention and referral to treatment program; and (d) communicate, collaborate and consult with an Indian child's tribe to ensure that plans of safe care are developed in a culturally responsive manner for each child; (5) identification of appropriate agencies to be included as supports and services in the plan of safe care, based on an assessment of the needs of the child and the child's relatives, parents, guardians, custodians or caretakers, performed by a discharge planner prior to the child's discharge from the hospital or birthing center, which: (a) shall include: 1) home visitation programs or early intervention family infant toddler programs; and 2) substance use disorder prevention and treatment providers; and (b) may include: 1) public health agencies; 2) maternal and child health agencies; 3) mental health providers; 4) infant mental health providers; 5) public and private children and youth agencies; 6) early intervention and developmental services; 7) courts; 8) local education agencies; 9) managed care organizations; or 10) hospitals and medical providers; (6) information that shall be in a written plan of safe care, including: (a) the child's name; (b) an emergency contact for at least one of the child's parents, relatives, guardians, custodians or caretakers; (c) the address for the parent, relative, guardian, custodian or caretaker who will be taking the child home from the birthing facility; and (d) the names of the parents, relatives, guardians, custodians or caretakers who will be living with the child; (7) engagement of the child's relatives, parents, guardians, custodians or caretakers in order to identify the need for access to treatment for any substance use disorder or other physical or behavioral health condition that may impact the safety, early childhood development and well-being of the child; and (8) implementation of plans of safe care that shall include requirements for care coordinators to: (a) actively work with pregnant persons or a substance-exposed child's parents, relatives, guardians, family members or caretakers to refer and connect the pregnant person or substance-exposed child's parents, relatives, guardians, family members or caretakers to necessary services. Care coordinators shall use an evidence-based intensive care coordination model that is listed in the federal Title IV-E prevention services clearinghouse or another nationally recognized evidence-based clearinghouse for child welfare; and (b) attempt to make contact with persons who are not following the plan of safe care using multiple methods, including in person, by mail, by phone call or by text message. If a pregnant person or a substance-exposed child's parents, relatives, guardians, family members or caretakers are not following the plan of safe care, care coordinators shall make attempts to contact and provide support services to persons who are not following the plan of safe care. C. Reports made pursuant to Paragraph (3) of Subsection B of this section shall be collected by the department as distinct and separate from any child abuse report as captured and held or investigated by the department, such that the reporting of a plan of safe care shall not constitute a report of suspected child abuse and neglect and shall not initiate investigation by the department or a report to law enforcement. D. The department shall summarize and report data received pursuant to Paragraph (3) of Subsection B of this section at intervals as needed to meet federal regulations. E. The health care authority shall provide an annual report to the legislative finance committee, the interim legislative health and human services committee and the department of finance and administration on the status of the plan of safe care system. The report shall include the following aggregate statistical information related to the creation of plans of safe care: (1) the primary substances that infants were exposed to; (2) the services that infants and families were referred to; (3) the availability and uptake rate of services; (4) whether an infant or an infant's family was subsequently reported to the children, youth and families department; and (5) disaggregated demographic and geographic data. F. Reports made pursuant to the requirements in this section shall not be construed to relieve a person of the requirement to report to the department knowledge of or a reasonable suspicion that a child is an abused or neglected child based on criteria as defined by Section 32A-4-2 NMSA 1978. G. The health care authority shall create and distribute training materials to support and educate discharge planners or social workers on the following: (1) how to assess whether to make a referral to the department pursuant to the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978]; (2) how to assess whether to make a notification to the department pursuant to Subsection B of Section 32A-4-3 NMSA 1978 for a child who has been diagnosed as affected by substance abuse, withdrawal symptoms resulting from prenatal drug exposure or a fetal alcohol spectrum disorder; (3) how to assess whether to create a plan of safe care when a referral to the department is not required; and (4) the creation and deployment of a plan of safe care. H. A person shall not have a cause of action for any loss or damage caused by any act or omission resulting from the implementation of the provisions of Subsection G of this section or resulting from any training, or lack thereof, required by Subsection G of this section. I. The training, or lack thereof, required by the provisions of Subsection G of this section shall not be construed to impose any specific duty of care. History: Laws 2019, ch. 190, § 3; 2025, ch. 156, § 5. ANNOTATIONS The 2025 amendment, effective June 20, 2025, revised the guidelines for a plan of safe care; in Subsection A, after "By" deleted "January 1, 2020" and added "July 1, 2026", replaced "department" with "health care authority", and "human services" with "children, youth and families"; in Subsection B, Paragraph B(1), in the introductory clause, after "process" deleted "including" and added "which may occur at a prenatal or perinatal medical visit and shall occur prior to a substance-exposed child's discharge from a hospital. The plan of safe care development process shall allow for", in Subparagraph B(1)(b), after "insurance plan care coordinator" deleted "who will monitor the implementation of the plan of care after discharge, if the child is insured, or to a care coordinator in the children's medical services of the family health bureau of the public health division of the department of health who will monitor the implementation of the plan of care after discharge, if the child is uninsured; and" and added "or a care coordinator employed by or contracted with the health care authority", added new Subparagraph B(1)(d), in Paragraph B(2), after "fetal alcohol spectrum disorder", added "The rules shall include a requirement that all hospitals, birthing centers and prenatal care providers use the screening, brief intervention and referral to treatment program at all prenatal or perinatal medical visits and live births", added new Paragraph B(4) and redesignated former Paragraph B(4) as Paragraph B(5), in Paragraph B(5), deleted former Subparagraphs B(4)(a) through B(4)(k) and added new Subparagraphs B(5)(a) and B(5)(b), added new Paragraphs B(6) and B(8); in Subsection E, after "The" deleted "children's medical services of the family health bureau of the public health division of the department of health shall collect and record data reported pursuant to Subparagraph (c) of Paragraph (3) of Subsection B of this section to support and monitor care coordination of plans of care for children born without insurance" and added the remainder of the subsection, including new Paragraphs E(1) through E(5); and in Subsection G, after "The" deleted "department" and added "health care authority", and after "shall" deleted "work in consultation with the department of health". 32A-3A-14. Notification to the department of noncompliance with a plan of safe care. A. If the parents, relatives, guardians, custodians or caretakers of a child released from a hospital or freestanding birthing center pursuant to a plan of safe care fail to comply with that plan, the health care authority, a medicaid managed care organization insurance plan care coordinator or a care coordinator contracted with the health care authority shall notify the department within twenty-four hours of the failure to comply and the department shall conduct a family assessment. Based on the results of the family assessment, the department may offer or provide referrals for counseling, training, or other services aimed at addressing the underlying causative factors that may jeopardize the safety or well-being of the child. The child's parents, relatives, guardians, custodians or caretakers may choose to accept or decline any service or program offered subsequent to the family assessment; provided that if the child's parents, relatives, guardians, custodians or caretakers decline those services or programs, and the department determines that those services or programs are necessary to address concerns of imminent harm to the child, the department shall proceed with an investigation. B. As used in this section, "family assessment" means a comprehensive assessment prepared by the department at the time the department receives notification of failure to comply with the plan of safe care to determine the needs of a child and the child's parents, relatives, guardians, custodians or caretakers, including an assessment of the likelihood of: (1) imminent danger to a child's well-being; (2) the child becoming an abused child or neglected child; and (3) the strengths and needs of the child's family members, including parents, relatives, guardians, custodians or caretakers, with respect to providing for the health and safety of the child. History: Laws 2019, ch. 190, § 4; 2025, ch. 156, § 6. ANNOTATIONS The 2025 amendment, effective June 20, 2025, revised notification requirements when certain parties fail to comply with a plan of safe care; in Subsection A, after "fail to comply with that plan" added "the health care authority, a medicaid managed care organization insurance plan care coordinator or a care coordinator contracted with the health care authority shall notify", after "the department" deleted "shall be notified", and added "within twenty-four hours of the failure to comply", after "and the department," deleted "may" and added "shall", and after "those services or program, and the department," deleted "may" and added "determines that those services or programs are necessary to address concerns of imminent harm to the child, the department shall".. 32A-3A-15. Recompiled. History: Laws 2019, ch. 247, § 14; 1978 Comp., § 32A-3A-15, recompiled and amended as § 32A-1-22 by Laws 2023, ch. 90, § 3. ANNOTATIONS Recompilations. — Laws 2023, ch. 90, § 3 recompiled and amended former 32A-3A- 15 NMSA 1978 as 32A-1-22 NMSA 1978, effective July 1, 2023. 32A-3A-16. Confidentiality. A. All records or information, whether on file with the court, an agency, the department, an attorney or other provider of professional services, concerning a party to a voluntary placement proceeding shall be confidential and closed to the public. B. The disclosure of all mental health and developmental disability records shall be made pursuant to the Children's Mental Health and Developmental Disabilities Act [32A- 6A-1 to 32A-6A-30 NMSA 1978]. C. The records described in Subsection A of this section, other than mental health and developmental disability records, shall be disclosed only to the parties and: (1) court personnel and persons or entities authorized by contract with the court to review, inspect or otherwise have access to records or information in the court's possession; (2) the attorney, including a public defender, representing the child in any child proceeding pursuant to the Children's Code; (3) department personnel and persons or entities authorized by contract with the department to review, inspect or otherwise have access to records or information in the department's possession; (4) law enforcement officials, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978; (5) district attorneys, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978; (6) any state government social services agency in any state or, when in the opinion of the department it is in the best interest of the child, a governmental social services agency of another country; (7) a foster parent, if the records are those of a child currently placed with that foster parent or of a child being considered for placement with that foster parent and the records concern the cultural, social, medical, psychological or educational needs of the child; (8) school personnel involved with the child if the records concern the child's cultural, social or educational needs; (9) a grandparent, parent of a sibling, relative or fictive kin, if the records or information pertain to a child being considered for placement with that grandparent, parent of a sibling, relative or fictive kin and the records or information concern the cultural, social, medical, psychological or educational needs of the child; (10) health care or mental health professionals involved in the evaluation or treatment of the child or of the child's parents, guardian, custodian or other family members; (11) protection and advocacy representatives pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991; (12) children's safehouse organizations conducting investigatory interviews of children on behalf of a law enforcement agency or the department; (13) representatives of the federal government or their contractors authorized by federal statute or regulation to review, inspect, audit or otherwise have access to records and information pertaining to neglect or abuse proceedings; (14) any person or entity attending a meeting arranged by the department to discuss the safety, well-being and permanency of a child when the parent, guardian or child over the age of fourteen years has consented to the disclosures occurring during the meeting; and (15) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court. D. Whoever intentionally and unlawfully releases any information or records closed to the public pursuant to the Voluntary Placement and Family Services Act or releases or makes other unlawful use of records in violation of that act is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. E. The department shall promulgate rules for implementing disclosure of records pursuant to this section and in compliance with state and federal law and the Children's Court Rules. History: Laws 2023, ch. 90, § 10. ANNOTATIONS Effective dates. — Laws 2023, ch. 90, § 30 made Laws 2023, ch. 90, § 10 effective July 1, 2023. 32A-3A-17. Conduct of hearings. A. All hearings held pursuant to the Voluntary Placement and Family Services Act shall be closed to the general public. B. Only the parties to a proceeding, their counsel and other persons approved by the court may be present at a closed hearing. Other persons the court finds to have a proper interest in the case or in the work of the court may be admitted by the court to closed hearings on the condition they refrain from divulging any information that would identify the child or family involved in the proceedings. History: Laws 2023, ch. 90, § 11. ANNOTATIONS Effective dates. — Laws 2023, ch. 90, § 30 made Laws 2023, ch. 90, § 11 effective July 1, 2023. 32A-3A-18. Voluntary placement; placement. A. If the department accepts legal custody of a child, the child shall be placed in the least restrictive setting that most closely approximates a family in which the child's special needs, if any, may be met. The child shall be placed within reasonable proximity to the child's home, taking into account any special needs of the child. Preference shall be given to placement with: (1) a relative of the child; (2) a licensed foster home or any home authorized by law for the provision of foster care or group care or use as a protective residence; (3) a facility operated by a licensed child welfare services agency; or (4) a facility provided for in the Children's Shelter Care Act. B. The department shall provide the child with shelter in an appropriate facility, pursuant to the provisions of Section 32A-3B-6 NMSA 1978, that is located as close as possible to the child's residence. The child shall not be held in a jail or other facility intended or used for the incarceration of adults charged or convicted of criminal offenses or a facility for the detention of children alleged to be or adjudicated as delinquent children. C. If the child is placed in an evaluation facility or out-of-home treatment or rehabilitation program, the child shall be admitted pursuant to the provisions of Sections 32A-6A-19 through 32A-6A-22 NMSA 1978. D. The department shall make reasonable efforts to place siblings in custody by court order or voluntary placement agreement together, unless such joint placement would be contrary to the safety or well-being of any of the siblings in custody, and whether any siblings not jointly placed have been provided reasonable visitation or other ongoing interaction, unless visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings. History: Laws 2023, ch. 90, § 12. ANNOTATIONS Effective dates. — Laws 2023, ch. 90, § 30 made Laws 2023, ch. 90, § 12 effective July 1, 2023. 32A-3A-19. Financial subsidies; eligibility. A. Prior to a guardianship being granted pursuant to the Kinship Guardianship Act [Chapter 40, Article 10B NMSA 1978] or the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] and in order to be eligible for guardianship assistance payments, the following conditions shall be satisfied: (1) the child shall be in the custody of the department and have been removed from the child's home: (a) pursuant to a voluntary placement agreement; or (b) as a result of a judicial determination that the placement and care of the child should be vested in the department; (2) the child shall be eligible for foster care maintenance payments while in the home of the prospective guardian; (3) the child shall have been placed by the department and shall have lived with the prospective guardian for at least six consecutive months following the prospective guardian's licensure as a foster parent; (4) the child has a strong attachment to the prospective guardian and the prospective guardian is a relative or fictive kin of the child; (5) the prospective guardian has a strong commitment to caring permanently for the child, documented via a meeting held prior to the proposed guardianship between the prospective guardian and the department discussing the prospective guardian's long-term commitment; (6) if the child is fourteen years of age or older, the child has been consulted by the department and consents to the guardianship arrangement; and (7) a fully executed guardianship assistance agreement is approved by the department; or (8) the child is a sibling of a child who meets the eligibility criteria set forth in this subsection. B. The department shall promulgate rules for guardianship assistance payments and payment of nonrecurring expenses. History: Laws 2023, ch. 90, § 13. ANNOTATIONS Effective dates. — Laws 2023, ch. 90, § 30 made Laws 2023, ch. 90, § 13 effective July 1, 2023. 32A-3A-20. Financial subsidies; nonrecurring expenses. Nonrecurring expenses incurred by a prospective guardian associated with establishing a subsidized guardianship may be reimbursed for each eligible child, up to an amount established by the department, and also for any of an eligible child's siblings. History: Laws 2023, ch. 90, § 14. ANNOTATIONS Effective dates. — Laws 2023, ch. 90, § 30 made Laws 2023, ch. 90, § 14 effective July 1, 2023. 32A-3A-21. Financial subsidies; guardianship assistance agreement. A. In order for a prospective guardian to receive guardianship assistance payments, the department shall negotiate and enter into a written guardianship assistance agreement before the guardianship is finalized with the prospective guardian of an eligible child. The agreement shall specify the following: (1) the amount of and manner in which guardianship assistance payments will be provided; (2) additional services and assistance for which the child and the prospective guardian will be eligible; (3) a procedure by which the prospective guardian may apply for additional services; (4) the responsibility of the prospective guardian to report changes in the needs of the child or the circumstances of the prospective guardian that affect guardianship assistance payments; (5) reasonable and verified nonrecurring expenses associated with establishing a subsidized guardianship pursuant to the provisions of Section 14 of this 2023 act; and (6) terms by which the guardianship assistance agreement may be terminated and the ability of the department to recoup funds received due to improper payment. B. A copy of the fully executed guardianship assistance agreement shall be given to the prospective guardian and to the department. History: Laws 2023, ch. 90, § 15. ANNOTATIONS Effective dates. — Laws 2023, ch. 90, § 30 made Laws 2023, ch. 90, § 15 effective July 1, 2023. 32A-3A-22. Financial subsidies; successor guardians. A. In order for a successor guardian to be eligible for guardianship assistance payments if the successor guardian serves as guardian in the event the guardian dies or is incapacitated, the successor guardian shall be named in the guardianship assistance agreement and any amendments thereto. B. The department may pay the cost of nonrecurring expenses associated with the successor guardian obtaining a subsidized guardianship of the child, up to an amount established by the department. C. The successor guardian does not need to be a relative and does not need to be licensed as a foster parent to receive guardianship assistance payments. History: Laws 2023, ch. 90, § 16. ANNOTATIONS Effective dates. — Laws 2023, ch. 90, § 30 made Laws 2023, ch. 90, § 16 effective July 1, 2023. 32A-3A-23. Financial subsidies; discontinuance of guardianship assistance payments. A. The department shall immediately discontinue guardianship assistance payments when the department is advised or determines a child or guardian no longer meets the criteria to be eligible for guardianship assistance payments. B. The department shall notify the guardian in writing of a discontinuation of guardianship assistance payments and the reasons for discontinuation. C. The discontinuance of guardianship assistance payments does not terminate a guardianship or a guardian's legal responsibility that has been established by a court. History: Laws 2023, ch. 90, § 17. ANNOTATIONS Effective dates. — Laws 2023, ch. 90, § 30 made Laws 2023, ch. 90, § 17 effective July 1, 2023. 32A-3A-24. Financial subsidies; administrative appeal of decisions. A child or prospective guardian may appeal a decision by the department to establish, deny, reduce or discontinue guardianship assistance payments within thirty days of the department's decision. History: Laws 2023, ch. 90, § 18. ANNOTATIONS Effective dates. — Laws 2023, ch. 90, § 30 made Laws 2023, ch. 90, § 18 effective July 1, 2023. 32A-3A-25. Department duties; rulemaking. The department shall promulgate rules as necessary to implement the provisions of the Voluntary Placement and Family Services Act. History: Laws 2023, ch. 90, § 19. ANNOTATIONS Effective dates. — Laws 2023, ch. 90, § 30 made Laws 2023, ch. 90, § 19 effective July 1, 2023. ARTICLE 3B Families in Need of Court-Ordered Services ANNOTATIONS Compiler's notes. — Sections 32A-3B-1 to 32A-3B-22 NMSA 1978 were originally enacted as 32-3B-1 to 32-3B-22 NMSA 1978 by Laws 1993, ch. 77, §§ 73 to 94, and were recompiled to this location in 1993 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. 32A-3B-1. Short title; purpose. A. Chapter 32A, Article 3B NMSA 1978 may be cited as the "Family in Need of Court-Ordered Services Act". B. The Family in Need of Court-Ordered Services Act shall be interpreted and construed to effectuate the following expressed legislative purposes: (1) through court intervention, to provide services for a family in need of services when voluntary services have been exhausted; and (2) to recognize that many instances of truancy and running away by a child are symptomatic of a family in need of services and that in some family situations the child and parent are unable to share a residence. History: 1978 Comp., § 32A-3B-1, enacted by Laws 1993, ch. 77, § 73; 2005, ch. 189, § 29. ANNOTATIONS The 2005 amendment, effective June 17, 2005, stated the title of the act in Subsection A and deleted the former statement that the purpose of the act is to determine whether learning problems are a cause of a child's absence form school and the steps to overcome the learning problems. 32A-3B-2. Definitions. As used in Chapter 32A, Article 3B NMSA 1978, "family in need of court-ordered services" means the child or the family has refused family services or the department has exhausted appropriate and available family services and court intervention is necessary to provide family services to the child or family and it is a family: A. whose child, subject to compulsory school attendance, is absent from school without an authorized excuse more than ten days during a school year; B. whose child is absent from the child's place of residence for a time period of twelve hours or more without consent of the child's parent, guardian or custodian; C. whose child refuses to return home and there is good cause to believe that the child will run away from home if forced to return to the parent, guardian or custodian; D. in which the child's parent, guardian or custodian refuses to allow the child to return home and a petition alleging neglect of the child is not in the child's best interests; or E. whose child is: (1) alleged to be engaged in an act that would be designated as prostitution if committed by an adult; or (2) a victim of human trafficking as defined in Section 30-52-1 NMSA 1978. History: 1978 Comp., § 32A-3B-2, enacted by Laws 1993, ch. 77, § 74; 2007, ch. 185, § 1; 2009, ch. 193, § 5; 2019, ch. 101, § 2. ANNOTATIONS Cross references. — For assistance of law enforcement in locating a runaway, see 32A-1-21 NMSA 1978. The 2019 amendment, effective June 14, 2019, revised the definition of "family in need of court-ordered services" to include a family whose child is alleged to be engaged in prostitution or is a victim of human trafficking; and added Subsection E. The 2009 amendment, effective June 19, 2009, in Subsection A, after "during a school", changed "semester" to "year". The 2007 amendment, effective June 15, 2007, reduced the time period in Subsection B from 24 to 12 hours. 32A-3B-3. Protective custody; interference with protective custody; penalty. A. A child may be taken into protective custody by a law enforcement officer without a court order when the officer has reasonable grounds to believe that the child: (1) has run away from the child's parent, guardian or custodian; (2) without parental supervision is suffering from illness or injury; (3) has been abandoned; (4) is endangered by the child's surroundings and removal from those surroundings is necessary to ensure the child's safety; (5) is engaged in an act that would be designated as prostitution if committed by an adult; or (6) is a victim of human trafficking as defined in Section 30-52-1 NMSA 1978. B. A child may be taken into protective custody pursuant to a court order issued after an agency legally charged with the supervision of the child has notified a law enforcement agency that the child has run away from a placement. C. When a child is taken into protective custody, the department shall make a reasonable effort to determine whether the child is an Indian child. D. Any person, other than the child taken into protective custody, who interferes with placing the child in protective custody is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. History: 1978 Comp., § 32A-3B-3, enacted by Laws 1993, ch. 77, § 75; 2019, ch. 101, § 3. ANNOTATIONS The 2019 amendment, effective June 14, 2019, authorized a child to be taken into protective custody by a law enforcement officer without a court order when the officer has reasonable grounds to believe that the child is engaged in prostitution or is a victim of human trafficking; and in Subsection A, added Paragraphs A(5) and A(6). 32A-3B-4. Protective custody; restrictions; time limitations. A. A law enforcement officer who takes a child into protective custody shall, with all reasonable speed: (1) inform the child of the reasons for the protective custody; and (2) contact the department. B. When the department is contacted by a law enforcement officer who has taken a child into protective custody, the department shall refer the child to community based services and may: (1) accept custody of the child and designate an appropriate placement in the community for the child; or (2) return the child to the child's parent, guardian or custodian if the child's safety is assured. C. A child taken into protective custody shall not be placed in or transported in a law enforcement vehicle or any other vehicle that contains an adult placed under arrest, unless circumstances exist in which any delay in transporting the child to an appropriate facility would be likely to result in substantial danger to the child's physical safety. When such circumstances exist, the circumstances shall be described in writing by the driver of the vehicle and submitted to the driver's supervisor within two days after the driver transported the child. D. A child taken into protective custody shall not be held involuntarily for more than two days, unless a petition to extend the custody is filed pursuant to the provisions of the Family in Need of Court-Ordered Services Act or the Abuse and Neglect Act. E. When a petition is filed or any time thereafter, the children's court or district court may issue an ex-parte custody order based upon a sworn written statement of facts showing that probable cause exists to believe that protective custody of the child is necessary. F. The protective custody order shall be served on the respondent by a person authorized to serve arrest warrants and shall direct the law enforcement officer to take custody of the child and deliver the child to a place designated by the court. G. The Rules of Evidence do not apply to the issuance of an ex-parte custody order. History: 1978 Comp., § 32A-3B-4, enacted by Laws 1993, ch. 77, § 76; 2005, ch. 189, § 30; 2019, ch. 101, § 4. ANNOTATIONS Cross references. — For the applicability of the Rules of Evidence, see Rule 11-1101 NMRA. The 2019 amendment, effective June 14, 2019, required the children, youth and families department, when contacted by a law enforcement officer who has taken a child into protective custody, to refer the child to community based services, and made certain technical changes; and in Subsection B, added "shall refer the child to community based services and", and in Paragraph B(1), deleted "facility in which to place" and added "placement in the community for". The 2005 amendment, effective June 17, 2005, changed "forty-eight hours" to "two days" in Subsections C and D. 32A-3B-5. Notification to family; release from protective custody. A. When the department takes a child into protective custody and the child is not released to the child's parent, guardian or custodian, the department shall provide written notice as soon as possible, and in no case later than twenty-four hours, to the child's parent, guardian or custodian, with a statement of the reasons for taking the child into protective custody. B. When the department releases a child placed in protective custody to the family, the department shall refer the family for voluntary family services. C. When the department releases a child from protective custody and the child's parent, guardian or custodian refuses to allow the child to return home, the department shall file a petition pursuant to the provisions of the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978]. D. If the department is not releasing the child to the parent, guardian or custodian within two days, the department shall notify the tribe if the child is an Indian child. History: 1978 Comp., § 32A-3B-5, enacted by Laws 1993, ch. 77, § 77; 2005, ch. 189, § 31. ANNOTATIONS The 2005 amendment, effective June 17, 2005, added Subsection D to provide that if the department is not releasing the child to the parent, guardian or custodian within two days, the department shall notify the tribe if the child is an Indian child. 32A-3B-6. Place of custody. A. Unless a child from a family in need of services who has been placed in department custody is also alleged or adjudicated delinquent: (1) the child shall not be held in a jail or other facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged to be delinquent children; and (2) there shall be a preference that the child be placed in the home of a relative of the child when a relative is available to provide foster care; provided that: (a) placement with a relative is in the best interest of the child; (b) the relative signs a sworn statement that the relative will not return the child to or allow unsupervised visits with the parent, guardian or custodian who is alleged to have committed the abuse or neglect until otherwise directed by the department or the court; and (c) within three days of accepting custody of the child, the relative completes an application form for licensure to operate a foster home pursuant to the Children's Code. B. The department shall make reasonable efforts to locate a relative of the child to provide foster care. If a relative is not available to provide foster care, the child may be placed in: (1) a licensed foster home or any home authorized under the law for the provision of foster care or group care or use as a protective residence; (2) a facility operated by a licensed child welfare services agency; or (3) a facility provided for in the Children's Shelter Care Act [32A-9-1 to 32A-9- 7 NMSA 1978]. History: 1978 Comp., § 32A-3B-6, enacted by Laws 1993, ch. 77, § 78; 2019, ch. 21, § 1. ANNOTATIONS Compiler's notes. — This section is substantively similar to former 32-1-23 NMSA 1978. See 32A-1-15 and 32A-2-10 NMSA 1978. The 2019 amendment, effective June 14, 2019, established a preference that a child taken into protective custody be placed with a relative of the child when a relative is available to provide foster care, required relatives providing foster care to initiate licensing procedures within three days of accepting custody of a child, and required the children, youth and families department to make reasonable efforts to locate a relative of the child to provide foster care; added new subsection designations "A" and "B" and redesignated former Subsections A through C as Paragraphs B(1) through B(3), respectively; in Subsection A, Paragraph A(1), after "delinquent children", deleted "but may be placed in the following community-based shelter care facilities", and added Paragraph A(2); in Subsection B, added the introductory clause; and deleted Subsection D. 32A-3B-6.1. Repealed. History: Laws 2005, ch. 189, § 37; repealed by Laws 2022, ch. 41, § 71. ANNOTATIONS Repeals. — Laws 2022, ch. 41, § 71 repealed 32A-3B-6.1 NMSA 1978, as enacted by Laws 2005, ch. 189, § 37, relating to Indian child placement, preferences, effective July 1, 2022. For provisions of former section, see the 2021 NMSA 1978 on NMOneSource.com. 32A-3B-7. Protective custody hearing; time limitations. A. When a child of an alleged family in need of court-ordered services is taken into protective custody by the department or the department petitions the court for protective custody of the child, a custody hearing shall be held within ten days from the date the petition is filed to determine if the child should remain with the family or be placed in the custody of the department pending adjudication. Upon written request of the respondent, the hearing may be held earlier, but in no event shall the hearing be held sooner than two days after the date the petition was filed. B. The parent, guardian or custodian of the child shall be given reasonable notice of the time and place of the hearing. C. When the custody hearing is conducted, the court shall release the child to his parent, guardian or custodian unless probable cause exists to believe that: (1) the child is in immediate danger from his surroundings and the child's removal from those surroundings is necessary for his safety or well-being; (2) the child will be subject to injury by others if not placed in the protective custody of the department; or (3) a parent, guardian or custodian of the child or any other person is unable or unwilling to provide adequate supervision and care for the child. D. At the conclusion of the protective custody hearing, if the court determines that protective custody pending adjudication is appropriate, the court may: (1) award custody of the child to the department; or (2) return the child to the child's parent, guardian or custodian, subject to conditions that will reasonably assure the safety and well-being of the child. E. In addition to any disposition made by the court pursuant to the provisions of Subsection D of this section, the court may order the child and family to participate in an assessment and referral process. Copies of any diagnostic or evaluation reports ordered by the court shall be provided to the parties at least five days before the adjudicatory hearing is scheduled. The diagnostic and evaluation reports shall not be sent to the court. F. The Rules of Evidence shall not apply to protective custody hearings conducted pursuant to the provisions of this section. History: 1978 Comp., § 32A-3B-7, enacted by Laws 1993, ch. 77, § 79. ANNOTATIONS Cross references. — For the applicability of the Rules of Evidence, see Rule 11-1101 NMRA. 32A-3B-8. Basic rights. A. A child subject to the provisions of the Children's Code is entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code. B. In proceedings on a petition alleging a family in need of court-ordered services, the court may appoint counsel if appointment of counsel would serve the interests of justice. C. In proceedings on a petition alleging a family in need of court-ordered services, the court shall appoint a guardian ad litem for a child under the age of fourteen and the court shall appoint an attorney for a child fourteen years of age or older at the inception of the proceedings. An officer or employee of an agency vested with legal custody of the child shall not be appointed as a guardian ad litem or attorney for the child. Only an attorney with appreciable training or experience shall be appointed as guardian ad litem of or attorney for the child. D. When a child reaches fourteen years of age, the child's guardian ad litem shall continue as the child's attorney; provided that the court shall appoint a different attorney for the child if: (1) the child requests a different attorney; (2) the guardian ad litem requests to be removed; or (3) the court determines that the appointment of a different attorney is appropriate. E. Whenever it is reasonable and appropriate, the court shall appoint a guardian ad litem or attorney who is knowledgeable about the child's cultural background. F. A person afforded rights pursuant to the provisions of the Children's Code shall be advised of those rights at that person's first appearance before the court on a petition filed under the Children's Code. G. A child of an alleged or adjudicated family in need of court-ordered services shall not be fingerprinted or photographed for identification purposes, unless pursuant to a court order. History: 1978 Comp., § 32A-3B-8, enacted by Laws 1993, ch. 77, § 80; 2005, ch. 189, § 32; 2009, ch. 239, § 29. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection C, after "age of fourteen and", added "the court shall appoint", and added the last sentence; and added Subsection D. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, provided in Subsection C that the court shall appoint a guardian ad litem for a child under the age of fourteen and an attorney for a child fourteen years of age or older. Judicial immunity. — Judicial immunity was developed to preserve the "autonomy and integrity of the judiciary" so that "persons who are integral to the judicial process are able to perform their functions without the intimidating effect of potential lawsuits." The court bears the statutory responsibility in children's court proceedings for appointing counsel, ensuring the competence of counsel, and permitting counsel to withdraw. As a result, these are judicial and not administrative functions and there is absolute immunity. Hunnicutt v. Sewell, 2009-NMCA-121, 147 N.M. 272, 219 P.3d 529. 32A-3B-9. Change in placement. A. When a child's placement is changed, including a return to the child's home, written notice of the placement change shall be given to the parties and to the child's tribe if the child is an Indian child ten days prior to the placement change, unless an emergency situation requires moving the child prior to sending notice. B. When a child's guardian ad litem or attorney requests a court hearing to contest the proposed placement change, the department shall not change the child's placement pending the result of the court hearing, unless an emergency requires changing the child's placement prior to the hearing. C. When a child's placement is changed and notice pursuant to the provisions of Subsection A of this section is not provided, written notice shall be sent to the parties and to the child's tribe if the child is an Indian child within three days after the placement change. D. Notice pursuant to the provisions of this section is not required for removal of the child from temporary emergency care, emergency foster care or respite care. History: 1978 Comp., § 32A-3B-9, enacted by Laws 1993, ch. 77, § 81; 2005, ch. 189, § 33. ANNOTATIONS The 2005 amendment, effective June 17, 2005, provided in Subsection A that if a child's placement is changed, notice of the change shall be given to the parties and to the child's tribe if the child is an Indian child and in Subsection C that if notice of placement is not given under Subsection A, notice of the change of placement shall be given to the parties and to the child's tribe if the child is an Indian child. 32A-3B-10. Petition; endorsement of petition. A petition regarding an alleged family in need of court-ordered services shall not be filed unless the children's court attorney, after consultation with the department, determines and endorses upon the petition that filing is in the best interests of the child and family. History: 1978 Comp., § 32A-3B-10, enacted by Laws 1993, ch. 77, § 82. 32A-3B-11. Petition; allegations. A. A petition to initiate a proceeding regarding an alleged family in need of court- ordered services shall include the following allegations: (1) that the child or the family are in need of court-ordered family services; (2) that the child and the family participated in or refused to participate in a plan for family services and that the department has exhausted appropriate and available services; and (3) that court intervention is necessary to assist the department in providing necessary services to the child and the family. B. In addition to the allegations required pursuant to the provisions of Subsection A of this section, a petition that alleges a child's chronic absence from school shall be accompanied by an affidavit filed by a school official, in accordance with the provisions of Section 32-3A-3 [32A-3A-3] NMSA 1978. History: 1978 Comp., § 32A-3B-11, enacted by Laws 1993, ch. 77, § 83. 32A-3B-12. Adjudicatory hearing; time limitations. A. An adjudicatory hearing for an alleged family in need of court-ordered services shall be commenced within sixty days after the date of service on the respondent. B. The children's court attorney shall represent the state at the adjudicatory hearing. C. If the adjudicatory hearing is not commenced within the time limits specified in this section or within the period of any extension of those time limits, the petition shall be dismissed with prejudice. History: 1978 Comp., § 32A-3B-12, enacted by Laws 1993, ch. 77, § 84; 2009, ch. 239, § 30. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection A, changed "ninety days" to "sixty days"; after "ninety days after the", deleted "latest of the following dates:"; deleted Paragraphs (1) through (3) of Subsection A, which listed the date the petition is served on the respondent; the date the trial court orders a mistrial or a new trial; and the date a mandate in an appeal or order disposing of the appeal is filed; and added “date of service on the respondent”. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-3B-13. Conduct of hearings; penalty. A. All hearings shall be recorded by stenographic notes or by electronic, mechanical or other appropriate means. B. All hearings regarding a family in need of court-ordered services shall be closed to the general public, subject to the following exceptions: (1) the parties, the parties' counsel, witnesses and other persons approved by the court may be present at the hearings. Those other persons the court finds to have a proper interest in the case or in the work of the court may be admitted by the court to closed hearings on the condition that they refrain from divulging any information that would identify the child or family involved in the proceedings; and (2) accredited representatives of the news media shall be allowed to be present at the hearings, subject to the condition that they refrain from divulging information that would identify any child involved in the proceedings or the parent, guardian or custodian of that child and further subject to enabling regulations the court finds necessary for the maintenance of order and decorum and for the furtherance of the purposes of the Children's Code. C. If the court finds that it is in the best interest of a child under fourteen years of age, the child may be excluded from a hearing under the Family in Need of Court- Ordered Services Act. A child fourteen years of age or older may be excluded from a hearing only if the court makes a finding that there is a compelling reason to exclude the child and states the factual basis for the finding. D. A person or party granted admission to a closed hearing who intentionally divulges information concerning the hearing in violation of the provisions of this section is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. History: 1978 Comp., § 32A-3B-13, enacted by Laws 1993, ch. 77, § 85; 2005, ch. 189, § 34. ANNOTATIONS The 2005 amendment, effective June 17, 2005, deleted former Subsection C, which provided that when the court finds it in the best interest of the child, the child may be excluded from a hearing, and added a new Subsection C, which provided that if it is in the best interest of the child under fourteen years of age, the child may be excluded from a hearing and that a child fourteen years of age or older may be excluded from a hearing only for a compelling reason. 32A-3B-14. Findings; dismissal; dispositional matters. A. The court shall determine if the allegations of the petition are admitted or denied by the parent or child. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court, after hearing all of the evidence regarding an alleged family in need of court-ordered services, shall make and record its findings. B. If the court finds, on the basis of a valid admission of the allegations set forth in the petition or on the basis of clear and convincing evidence that is competent, material and relevant in nature, that the child is a child of a family in need of court-ordered services, the court may proceed immediately or at a postponed hearing to make disposition of the case. If the court does not find that the child is a child of a family in need of court-ordered services, the court shall dismiss the petition. C. In that part of the hearings regarding dispositional issues, all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value, even though not competent had it been offered during the part of the hearings regarding adjudicatory issues. D. On the court's motion or motion of a party, the court may continue the hearing on the petition for a reasonable time to receive reports and other evidence regarding disposition. The court shall continue the hearing pending the receipt of the plan for family services if that document has not been prepared and received. During any continuance granted pursuant to this subsection, the court shall make an appropriate order for legal custody of the child. History: 1978 Comp., § 32A-3B-14, enacted by Laws 1993, ch. 77, § 86; 1995, ch. 206, § 19. ANNOTATIONS The 1995 amendment, effective July 1, 1995, inserted "by the parent or child" in the first sentence of Subsection A. 32A-3B-15. Plan for family services. A. Prior to holding a dispositional hearing, the court shall direct the department to prepare a written family services plan for submission to the court. B. The plan for family services shall contain the following information: (1) a statement of the problem; (2) the needs of the child; (3) the needs of the family; (4) a description of the specific progress needed to be made by both the parent and the child, the reasons why the plan is likely to be useful, the availability of any proposed services and the department's overall plan for ensuring that the services will be delivered; (5) if removal from the home or continued residence outside the home is recommended for the child, a statement of the likely harm the child will suffer as a result of removal from the home, including emotional harm resulting from separation from the child's parents; (6) if removal from the home or continued residence outside the home is recommended for the child, a description of any previous efforts to work with the parent and the child in the home and a description of any in-home treatment programs that have been considered and rejected; (7) a description of the steps that will be taken to minimize any harm to the child that may result if separation from the child's parent occurs or continues; (8) if removal from the home or continued residence outside the home is recommended for the child and the child is sixteen years of age or older, a description of the specific skills the child requires for successful transition into independent living as an adult, what programs are necessary to develop the skills, the reasons why the programs are likely to be useful, the availability of any proposed programs and the department's overall plan for ensuring that the child will be adequately prepared for adulthood; and (9) when the child is an Indian child, contact shall be made with the child's Indian tribe for the purpose of consultation and exchange of information and the plan shall indicate the person contacted in the child's Indian tribe and the results of that contact. C. A copy of the plan shall be provided by the department to all parties at least five days before the dispositional hearing. D. If the child is a member of an adjudicated family in need of court-ordered services, any temporary custody orders shall remain in effect until the court has received and considered the plan at the dispositional hearing. History: 1978 Comp., § 32A-3B-15, enacted by Laws 1993, ch. 77, § 87. 32A-3B-16. Dispositional judgment. A. At the conclusion of the dispositional hearing, the court shall set forth its findings on the following issues in the dispositional judgment: (1) the ability of the parent and child to share a residence; (2) the interaction and interrelationship of the child with the child's parent, siblings and any other person who may significantly affect the child's best interest; (3) the child's adjustment to home, school and community; (4) whether the child's educational needs are being met; (5) the mental and physical health of all individuals involved; (6) the wishes of the child as to the child's custodian; (7) the wishes of the child's parent, guardian or custodian as to the child's custody; (8) whether there exists a relative of the child or any other individual who, after study by the department, is found to be qualified to receive and care for the child; (9) the availability of services recommended in the treatment plan; (10) the department's efforts to work with the parent and child in the home and a description of the in-home treatment programs that the department has considered and rejected; and (11) when the child is an undocumented immigrant child, whether the family services plan included referral to nongovernmental agencies that may be able to assist the child, and family when appropriate, in addressing immigration status. B. When there is an adjudication regarding a family in need of court-ordered services, the court shall enter judgment and make any of the following dispositions: (1) permit the child to remain with the child's parent, guardian or custodian, subject to conditions and limitations the court may prescribe; (2) place the child under the protective supervision of the department; (3) transfer legal custody of the child to: (a) the department; (b) an agency responsible for the care of neglected or abused children; or (c) the child's noncustodial parent, if that is found to be in the child's best interests; or (4) if the evidence indicates that the child's educational needs are not being met, the local education agency may be joined as a party and directed to assess the child's needs within forty-five days, attempt to meet the child's educational needs and document its efforts to meet the child's educational needs. C. Unless a child of an adjudicated family in need of court-ordered services is also found to be a delinquent child, the child shall not be confined in an institution established for the long-term care and rehabilitation of delinquent children or in a facility for the detention of alleged delinquent children. History: 1978 Comp., § 32A-3B-16, enacted by Laws 1993, ch. 77, § 88; 2009, ch. 239, § 31; 2022, ch. 41, § 47. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed provisions related to Indian children which are now covered by the Indian Family Protection Act; in Subsection A, deleted former Paragraphs A(11) and A(12) and redesignated former Paragraph A(13) as Paragraph A(11); and deleted Subsection D. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2009 amendment, effective July 1, 2009, in Paragraph (12) of Subsection A, after "whether the", deleted "family service"; and added Paragraph (13) of Subsection A. 32A-3B-17. Disposition of a child with a developmental disability or mental disorder; proceedings. A. If during any stage of a proceeding regarding a family in need of court-ordered services petition the evidence indicates that the child has or may have a developmental disability or a mental disorder, the court may order the department to: (1) secure an assessment of the child; (2) prepare appropriate referrals for services for the child; and (3) if necessary, initiate proceedings for the involuntary placement of the child pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act [32A-6A-1 to 32A-6A-30 NMSA 1978]. B. When a child in department custody needs involuntary placement for residential mental health or developmental disability services, the department shall file a motion for that child's placement pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. C. A court hearing for consideration of an involuntary placement of a child for residential treatment or habilitation, when the child is subject to the provisions of the Family in Need of Court-Ordered Services Act, may be heard by the court as a part of the family in need of court-ordered services proceedings or may be heard in a separate proceeding. All parties to the family in need of court-ordered services proceedings shall be provided with notice of the involuntary placement hearing. D. A guardian ad litem appointed pursuant to the Family in Need of Court-Ordered Services Act shall serve as the guardian ad litem for a child for the purposes of the Children's Mental Health and Developmental Disabilities Act. When a child is fourteen years of age or older, the child shall be represented by an attorney unless, after consultation between the child and the child's attorney, the child elects to be represented by counsel appointed by the court in the proceedings under the Children's Mental Health and Developmental Disabilities Act. E. When a child is subject to the provisions of the Family in Need of Court-Ordered Services Act and is receiving residential treatment or habilitation services, any documentation required pursuant to the Children's Mental Health and Developmental Disabilities Act shall be filed with the court as part of the family in need of court-ordered services proceeding. A review of the child's placement in a residential treatment or habilitation program shall occur in the same manner and within the same time requirements as provided in the Children's Mental Health and Developmental Disabilities Act. F. The clerk of the court shall maintain a separate section within a child's family in need of court-ordered services file for documents pertaining to actions taken under the Children's Mental Health and Developmental Disabilities Act. G. A child subject to the provisions of the Family in Need of Court-Ordered Services Act who receives treatment in a residential treatment or habilitation program shall enjoy all the substantive and procedural rights set forth in the Children's Mental Health and Developmental Disabilities Act. History: 1978 Comp., § 32A-3B-17, enacted by Laws 1993, ch. 77, § 89; 1995, ch. 206, § 20; 2005, ch. 189, § 35. ANNOTATIONS The 2005 amendment, effective June 17, 2005, in Subsection C, provided that a consideration of involuntary placement of a child may be heard in a hearing separate from a family in need of court-ordered services proceeding; and in Subsection D, deleted the former provision that if a guardian ad litem determines that a child's wishes conflict with the child's best interests, the guardian may petition for appointment of an attorney for the child and added the provision that when a child is fourteen years of age or older, the child shall be represented by an attorney unless child elects to be represented by counsel appointed by the court in proceedings under the Children’s Mental Health and Developmental Disabilities Act. The 1995 amendment, effective July 1, 1995, added "in a proceeding under the Family in Need of Services Act" in the section heading, in Subsection B, substituted "when a child in department custody needs involuntary placement for residential" for "when the department has reason to believe that a child in department custody needs residential" and substituted "file a motion" for "petition", and added Subsections C through G. 32A-3B-18. Dispositional judgments; time limitations; modification, termination or extension of court order. A. A judgment vesting legal custody of a child in an agency shall remain in force for an indeterminate period not exceeding two years from the date entered. B. A judgment vesting legal custody of a child in an individual, other than the child's parent, shall remain in force for two years from the date entered unless terminated sooner by court order. C. A judgment vesting legal custody of a child in the child's parent or a permanent guardian shall remain in force for an indeterminate period from the date entered until terminated by court order or until the child is emancipated or reaches the age of majority. D. At any time prior to expiration, a judgment vesting legal custody or granting protective supervision may be modified, revoked or extended on motion by a party, including the child by and through the child's guardian ad litem or attorney. E. Prior to the expiration of a judgment transferring legal custody to an agency, the court may extend the judgment for additional periods of one year if it finds that the extension is necessary to safeguard the welfare of the child or the public interest. F. When a child reaches eighteen years of age, all family in need of court-ordered services orders affecting the child then in force automatically terminate. The termination of the orders shall not disqualify a child from eligibility for transitional services. History: 1978 Comp., § 32A-3B-18, enacted by Laws 1993, ch. 77, § 90; 2009, ch. 239, § 32. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection D, after "motion by a party", deleted "or the" and added "including the child by and through the child’s"; and after "guardian ad litem", added "or attorney". Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-3B-19. Periodic review of dispositional judgments. A. Within six months of any original dispositional order and within six months of any subsequent continuation of the order, the department shall petition the court for a review of the disposition of the family in need of court-ordered services order. The review may be carried out by either of the following: (1) a judicial review hearing conducted by the court; or (2) a judicial review hearing conducted by a special master; provided, however, that the court approve any findings made by the special master. B. The children's court attorney shall give twenty days' written notice to all parties of the time, place and purpose of any judicial review hearing held pursuant to Subsection A of this section. C. At any judicial review hearing held pursuant to Subsection A of this section, the department and all persons given notice of the judicial review shall have the opportunity to present evidence and to cross-examine witnesses. At the hearing, the department shall not only show that it has made reasonable effort to implement the plan for family services approved by the court in its dispositional order, but shall also present an updated plan for any period of extension of the dispositional order. The parent, guardian or custodian of the child shall demonstrate to the court the family's effort to comply with the plan for family services approved by the court in its dispositional order and, if applicable, that the family's effort to maintain contact with the child was diligent and made in good faith, given the family's circumstances and abilities. D. The Rules of Evidence shall not apply to hearings held pursuant to this section. E. At the conclusion of any hearing held pursuant to this section, the court shall make findings of fact and conclusions of law. F. The court shall determine, during a review of a dispositional or continuation order, whether the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the child's Indian tribe have been followed and whether the child's treatment plan provides for maintaining the child's cultural ties. When placement preferences have not been incorporated into an order, good cause for noncompliance shall be clearly stated and supported. G. Based on its findings, the court shall order one or more of the following dispositions: (1) permit the child to remain with the child's parent, guardian or custodian, subject to conditions and limitations the court may prescribe, including protective supervision of the child by the department; (2) return the child to his parents and place the child under the protective supervision of the department; (3) transfer or continue legal custody of the child to: (a) the department, subject to the provisions of Paragraph (6) of this subsection; (b) a relative or other individual who, after study by the department or other agency designated by the court, is found by the court to be qualified to receive and care for the child with protective supervision by the department; or (c) to the noncustodial parent, if that is found to be in the child's best interests; (4) dismiss the action and return the child to the child's parent without supervision; (5) continue the child in the legal custody of the department with or without any required parental involvement in a treatment plan; (6) make additional orders regarding the treatment plan or placement of the child to protect the child's best interests, if the court determines the department has failed in implementing any material provision of the treatment plan or abused its discretion in the placement or proposed placement of the child; (7) if at any judicial review the court finds that the child's parent, guardian or custodian has not complied with the court-ordered treatment plan, the court may order the child's parent, guardian or custodian to show cause why he should not be held in contempt of court and subject to sanctions; (8) provide for a culturally appropriate treatment plan, access to cultural practices and traditional treatment for an Indian child; (9) direct the department to show cause why an abuse or neglect action has not been filed; or (10) if the local education agency has been made a party, direct the local education agency to show cause why it has not met the child's educational needs. H. Dispositional orders entered pursuant to this section shall remain in force for a period of six months. History: 1978 Comp., § 32A-3B-19, enacted by Laws 1993, ch. 77, § 91; 1995, ch. 206, § 21. ANNOTATIONS Cross references. — For children's court attorney, see 32A-1-6 NMSA 1978. For the applicability of the Rules of Evidence, see Rule 11-1101 NMRA. For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 1995 amendment, effective July 1, 1995, substituted "plan for family services" for "family services plan" in Subsection C and inserted "or more" following "order one" in Subsection G. 32A-3B-20. Parental responsibility. A. The court shall order the parent to pay the reasonable costs of support and maintenance of the child that the parent is financially able to pay if a child is adjudicated to be a child of a family in need of court-ordered services and the court orders the child placed with an agency or individual other than the parent. The court may use the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonable payment. B. The court may enforce any of its orders issued pursuant to this section by use of its contempt power. History: 1978 Comp., § 32A-3B-20, enacted by Laws 1993, ch. 77, § 92. 32A-3B-21. Expungement of records. A. On motion by or on behalf of an individual who has been the subject of a petition filed under the Children's Code, or on the court's own motion, the court shall vacate its findings, orders and judgments on the petition, and order the legal and social files and records of the court, the department and any other agency in the case expunged, and if requested in the motion the court shall also order law enforcement files and records expunged. An order expunging records and files shall be entered if the court finds that: (1) two years have elapsed since the final release of the individual from legal custody and supervision or two years have elapsed since the entry of any other judgment not involving legal custody or supervision; and (2) the individual has not, within the two years immediately prior to filing the motion, been convicted of a felony or of a misdemeanor involving moral turpitude or found delinquent by a court, and no proceeding is pending seeking such a conviction or finding. B. Reasonable notice of the motion shall be given to: (1) the children's court attorney; (2) the authority granting the release if the final release was from an agency, parole or probation; (3) the law enforcement officer, department and central depository having custody of the law enforcement files and records if those records are included in the motion; and (4) any other agency having custody of records or files subject to the expungement order. C. Upon the entry of the expungement order, the proceedings in the case shall be treated as if they never occurred, and all index references shall be deleted and the court, law enforcement officers and departments and agencies shall reply, and the individual may reply, to an inquiry that no record exists with respect to such person. Copies of the expungement order shall be sent to each agency or official named in the order. D. Any finding of delinquency or conviction of a crime, subsequent to the expungement order may at the court's discretion be used by the court as a basis to set aside the expungement order. E. A person who has been the subject of a petition filed under the Children's Code shall be notified of the right to have records expunged. History: 1978 Comp., § 32A-3B-21, enacted by Laws 1993, ch. 77, § 93. 32A-3B-22. Confidentiality; records; penalty. A. All records or information concerning a family in need of court-ordered services, including social records, diagnostic evaluation, psychiatric or psychological reports, videotapes, transcripts and audio recordings of a child's statement of abuse or medical reports, obtained as a result of an investigation in anticipation of or incident to a family in need of court-ordered services proceeding shall be confidential and closed to the public. B. The records described in Subsection A of this section shall be disclosed only to the parties and to: (1) court personnel; (2) court appointed special advocates; (3) the child's guardian ad litem or attorney; (4) the child's attorney representing the child in an abuse or neglect action, a delinquency action or any other action, including a public defender; (5) department personnel; (6) any local substitute care review board or any agency contracted to implement local substitute care review boards; (7) law enforcement officials; (8) district attorneys; (9) a state or tribal government social services agency of any state; (10) those persons or entities of an Indian tribe specifically authorized to inspect the records pursuant to the federal Indian Child Welfare Act of 1978 or any regulations promulgated thereunder; (11) tribal juvenile justice system and social service representatives; (12) a foster parent, if the records are those of a child currently placed with that foster parent or of a child being considered for placement with that foster parent and the records concern the social, medical, psychological or educational needs of the child; (13) school personnel involved with the child, if the records concern the child's social or educational needs; (14) health care or mental health professionals involved in the evaluation or treatment of the child, the child's parents, guardian or custodian or other family members; (15) protection and advocacy representatives, pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991; and (16) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court. C. Whoever intentionally and unlawfully releases any information or records that are closed to the public pursuant to the provisions of the Children's Code or releases or makes other unlawful use of records in violation of that code is guilty of a petty misdemeanor. D. The department shall promulgate rules for implementing disclosure of records pursuant to this section and in compliance with state and federal law and the Children's Court Rules. History: 1978 Comp., § 32A-3B-22, enacted by Laws 1993, ch. 77, § 94; 2005, ch. 189, § 36. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. For the federal Development Disabilities Assistance and Bill of Rights Act, see 42 U.S.C. § 6000. For the federal Protection and Advocacy for Mentally Ill Individuals Act of 1991, see 42 U.S.C. § 10801. The 2005 amendment, effective June 17, 2005, in Subsection A, provided that all records and information obtained as a result an investigation are confidential; in Subsection B, provided that records may be disclosed only to the persons listed in Subsection B(1) through (16); in Subsection B(3), provided that records may be disclosed to the child's attorney; in Subsection B(4), provided that records may be disclosed t the child's attorney representing the child in an abuse or neglect action, a delinquency action or any other action, including a public defender; in Subsection B(9), provided that records may be disclosed to a tribal government; and added Subsection D, which provided that the department shall promulgate rules for the disclosure of records. ARTICLE 4 Child Abuse and Neglect ANNOTATIONS Compiler's notes. — Sections 32A-4-1 to 32A-4-33 NMSA 1978 were originally enacted as 32-4-1 to 32-4-31 NMSA 1978 by Laws 1993, ch. 77, §§ 95 to 127, but since the former provisions of the Interstate Compact on Placement of Juveniles were compiled at that location, the sections as enacted by Chapter 77 of Laws 1993 were recompiled to Chapter 32A NMSA in order to retain a historical link between the pre- July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been included whenever possible. 32A-4-1. Short title. Chapter 32A, Article 4 NMSA 1978 may be cited as the "Abuse and Neglect Act". History: 1978 Comp., § 32A-4-1, enacted by Laws 1993, ch. 77, § 95; 2016, ch. 54, § 1. ANNOTATIONS Cross references. — For provisions of Safe Haven for Infants Act, see 24-22-1 NMSA 1978 et seq. For abuse of a child, see 30-6-1 NMSA 1978. For the Kinship Guardianship Act, see 40-10B-1 NMSA 1978 et seq. The 2016 amendment, effective May 18, 2016, after "Chapter", deleted "32" and added "32A". Act not unconstitutionally vague. — Abuse and Neglect Act is not unconstitutionally vague. State ex rel. Children, Youth & Families Dept. v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367. Presumption of retroactivity. — Based on the importance of the especially significant interests at stake for children and parents in cases involving the Abuse and Neglect Act, Chapter 32A, Article 4 NMSA 1978, as well as the need to eliminate disparate outcomes in such cases simply by virtue of the position of a case on the judicial docket, the presumption of retroactivity applies to abuse and neglect cases. State ex rel. CYFD v. Ruben C., 2022-NMCA-063, cert. granted. Clarifications of New Mexico law regarding standards of proof in termination of parental rights cases subject to the federal Indian Child Welfare Act. — The New Mexico court of appeals decision in State ex rel. Children, Youth & Families Dep’t v. Maisie Y., 2021-NMCA-023 (Maisie Y.), which held that in cases subject to the federal Indian Child Welfare Act (ICWA), all grounds to terminate parental rights, including determinations of abuse and neglect, must be proven beyond a reasonable doubt, judicial notice of prior adjudications of abuse and neglect made under the clear and convincing evidence standard, without more, is insufficient, and the active efforts requirement of the ICWA must be proven beyond a reasonable doubt, will be applied retroactively. State ex rel. CYFD v. Ruben C., 2022-NMCA-063, cert. granted. Removal of an Indian child from the custody of their guardian requires a finding that active efforts designed to prevent the breakup of the Indian family have been made. — When a petition for abuse and neglect seeking removal of an Indian child from the custody of their parent or legal guardian is filed by CYFD, the district court must make findings required by the federal Indian Child Welfare Act (ICWA) at the adjudicatory hearing, including the finding that active efforts designed to prevent the breakup of the Indian family have been made. The ICWA regulations and the legislative history of ICWA require remedial active efforts be made prior to initiating a placement and must be designed to prevent having to take a child into state custody. The definition of active efforts focuses on the timeliness of those efforts, provides that they be directed to maintaining the Indian child with their family, or, if a separation has already occurred, reuniting the child with their family, and specifies that efforts be conducted, to the maximum extent possible, in partnership with the Indian child's tribe and extended family. Active assistance in utilizing, accessing, and overcoming barriers to services is required regardless of the stage of the proceedings, and to be effective, remedial efforts must be undertaken promptly upon referral to the agency for abuse or neglect. State ex rel. CYFD v. Eric E., 2024-NMCA-026. The district court's finding that the active efforts required by the federal Indian Child Welfare Act were made by CYFD prior to taking the Indian child into involuntary state custody was not supported by substantial evidence. — The district court's finding that CYFD made the active efforts required by the federal Indian Child Welfare Act prior to taking the Indian child into involuntary state custody was not supported by substantial evidence where the record established that CYFD's efforts were not tailored to the goal of restoring the child to his parents, to his extended Indian family, or to his tribal community; CYFD failed to actively search for the child's father and prepare him to reunite with the child, it failed to contact and obtain assistance from the child's tribe, it failed to provide any assistance to the child's guardians in freeing the child for return to a parent or placement with an extended family member, and it offered no evidence to show that it had made active efforts to place the child in the treatment foster care recommended by the residential treatment center where the child had been placed. State ex rel. CYFD v. Eric E., 2024-NMCA-026. Application of higher standards of proof required by State ex rel. CYFD v. Maisie Y. — Where father’s parental rights were terminated prior to the New Mexico court of appeals decision in State ex rel. Children, Youth & Families Dep’t v. Maisie Y., 2021- NMCA-023 (Maisie Y.), which held that in cases subject to the federal Indian Child Welfare Act (ICWA), all grounds to terminate parental rights, including determinations of abuse and neglect, must be proven beyond a reasonable doubt, judicial notice of prior adjudications of abuse and neglect made under the clear and convincing evidence standard, without more, is insufficient, and the active efforts requirement of the ICWA must be proven beyond a reasonable doubt, the district court’s termination of father's parental rights required reversal, because it was possible that CYFD may not have met the higher standards of proof required by Maisie Y. State ex rel. CYFD v. Ruben C., 2022-NMCA-063, cert. granted. Double jeopardy. — The New Mexico constitution and double jeopardy statute, Section 30-1-10 NMSA 1978, do not prohibit the state from prosecuting defendants for child abuse because CYFD previously investigated defendants for child abuse and the tribal court previously held a custody hearing on the same issues. In the previous proceedings, the civil sanctions imposed on the defendant were remedial rather than punitive. State v. Diggs, 2009-NMCA-099, 147 N.M. 122, 217 P.3d 608, cert. denied, 2009-NMCERT-007, 147 N.M. 362, 223 P.3d 359. Because the statutory scheme of the Abuse and Neglect Act is unitary in nature, the process due at each stage should be evaluated in light of the process received throughout the proceedings. State ex rel. Children, Youth & Families Dep’t. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796. Parent has constitutional right to fair notice and opportunity to participate in all critical stages of abuse and neglect proceedings. State ex rel. Children, Youth & Families Dep’t. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796. District court has affirmative duty to ensure the parents’ due process rights are protected from the initiation of abuse and neglect proceedings. State ex rel. Children, Youth & Families Dep’t. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796. 32A-4-2. Definitions. As used in the Abuse and Neglect Act: A. "abandonment" includes instances when the parent, without justifiable cause: (1) left the child without provision for the child's identification for a period of fourteen days; or (2) left the child with others, including the other parent or an agency, without provision for support and without communication for a period of: (a) three months if the child was under six years of age at the commencement of the three-month period; or (b) six months if the child was over six years of age at the commencement of the six-month period; B. "abused child" means a child: (1) who has suffered or who is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian or custodian; (2) who has suffered physical abuse, emotional abuse or psychological abuse inflicted or caused by the child's parent, guardian or custodian; (3) who has suffered sexual abuse or sexual exploitation inflicted by the child's parent, guardian or custodian; (4) 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 (5) whose parent, guardian or custodian has knowingly or intentionally tortured, cruelly confined or cruelly punished the child; C. "aggravated circumstances" includes those circumstances in which the parent, guardian or custodian has: (1) attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child's sibling; (2) attempted, conspired to cause or caused great bodily harm or death to another parent, guardian or custodian of the child; (3) attempted, conspired to subject or has subjected the child to torture, chronic abuse or sexual abuse; or (4) had parental rights over a sibling of the child terminated involuntarily; D. "educational decision maker" means an individual appointed by the children's court to attend school meetings and to make decisions about the child's education that a parent could make under law, including decisions about the child's educational setting, and the development and implementation of an individual education plan for the child; E. "fictive kin" means a person not related by birth, adoption or marriage with whom a child has an emotionally significant relationship; F. "great bodily harm" means an injury to a person that creates a high probability of death, that causes serious disfigurement or that results in permanent or protracted loss or impairment of the function of a member or organ of the body; G. "neglected child" means a child: (1) who has been abandoned by the child's parent, guardian or custodian; (2) who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parent, guardian or custodian or the failure or refusal of the parent, guardian or custodian, when able to do so, to provide them; (3) who has been physically or sexually abused, when the child's parent, guardian or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm; (4) whose parent, guardian or custodian is unable to discharge that person's responsibilities to and for the child because of incarceration, hospitalization or physical or mental disorder or incapacity; or (5) who has been placed for care or adoption in violation of the law; provided that nothing in the Children's Code [Chapter 32A NMSA 1978] shall be construed to imply that a child who is being provided with treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof is for that reason alone a neglected child within the meaning of the Children's Code; and further provided that no child shall be denied the protection afforded to all children under the Children's Code; H. "personal identifier information" means a person's name and contact information, including home or business address, email address or phone number; I. "physical abuse" includes any case in which the child suffers strangulation or suffocation and any case in which the child exhibits evidence of skin bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling or death and: (1) there is not a justifiable explanation for the condition or death; (2) the explanation given for the condition is at variance with the degree or nature of the condition; (3) the explanation given for the death is at variance with the nature of the death; or (4) circumstances indicate that the condition or death may not be the product of an accidental occurrence; J. "relative" means a person related to another person by birth, adoption or marriage within the fifth degree of consanguinity; K. "sexual abuse" includes criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law; L. "sexual exploitation" includes: (1) allowing, permitting or encouraging a child to engage in prostitution; (2) allowing, permitting, encouraging or engaging a child in obscene or pornographic photographing; or (3) filming or depicting a child for obscene or pornographic commercial purposes, as those acts are defined by state law; M. "sibling" means a brother or sister having one or both parents in common by birth or adoption; N. "strangulation" has the same meaning as set forth in Section 30-3-11 NMSA 1978; O. "suffocation" has the same meaning as set forth in Section 30-3-11 NMSA 1978; and P. "transition plan" means an individualized written plan for a child, based on the unique needs of the child, that outlines all appropriate services to be provided to the child to increase independent living skills. The plan shall also include responsibilities of the child, and any other party as appropriate, to enable the child to be self-sufficient upon emancipation. History: 1978 Comp., § 32A-4-2, enacted by Laws 1993, ch. 77, § 96; 1997, ch. 34, § 1; 1999, ch. 77, § 3; 2009, ch. 239, § 33; 2016, ch. 54, § 2; 2017, ch. 64, § 2; 2018, ch. 30, § 3; 2023, ch. 90, § 20; 2025, ch. 156, § 7. ANNOTATIONS The 2025 amendment, effective June 20, 2025, defined the term "personal identifier information" as used in the Abuse and Neglect Act; added a new Subsection H and redesignated former Subsections H through O as Subsections I through P, respectively. The 2023 amendment, effective July 1. 2023, left the provisions of this section unamended. The 2018 amendment, effective July 1, 2018, included "strangulation" and "suffocation" within the definition of "physical abuse", and added definitions of "strangulation" and "suffocation" to the Abuse and Neglect Act; in Subsection H, after "in which the child", added "suffers strangulation or suffocation and any case in which the child"; and added Subsections M and N. The 2017 amendment, effective June 16, 2017, defined "educational decision maker" as used in the Abuse and Neglect Act; added a new Subsection D and redesignated former Subsections D through L as Subsections E through M, respectively; and in Subsections H, J and K, after "includes", deleted "but is not limited to". The 2016 amendment, effective May 18, 2016, added "fictive kin", "relative" and "sibling" to the definitions section of the Abuse and Neglect Act; added new Subsection D and redesignated former Subsections D, E and F as Subsections E, F and G, respectively; added new Subsection H and redesignated former Subsections G and H as Subsections I and J, respectively; and added new Subsection K and redesignated the succeeding subsection accordingly. The 2009 amendment, effective July 1, 2009, added Subsection I. The 1999 amendment, effective July 1, 1999, deleted "but is not limited to" following "includes" in the introductory language of Subsection A; in Subsection B, in Paragraph (1), inserted "has suffered or who" and added the language beginning "because of" to the end, and in Paragraph (2), inserted "or caused"; added Subsections C and D and redesignated the subsequent subsections accordingly; in Subsection E, in Paragraph (2), substituted "failure" for "neglect", and in Paragraph (4), deleted "other" following "hospitalization or". The 1997 amendment, effective July 1, 1997, added Paragraph B(1) and redesignated former Paragraphs B(1) to (4) as Paragraphs B(2) to (5). Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-3 NMSA 1978 have been included in the annotations to this section. New Mexico's legal standard for neglect under 32A-4-2(G)(2) NMSA 1978. — Before a child is adjudicated neglected, the children, youth and families department must provide clear and convincing evidence that the child is without proper parental care and control necessary for the child's well-being and that the child's lack of proper parental care and control is because of the faults or habits of the child's parent or the failure or refusal of the child's parent to provide the necessary care or control. The legislature intended that to find a child to be without proper parental care and control necessary for the child's well-being such that the child must be removed from the family, the child must be subjected to circumstances that create a serious risk to the child's mental or physical health and safety, a risk that is likely to result in important or dangerous consequences for the child. State ex rel. CYFD v. Heather S., 2025-NMSC- 002, rev'g A-1-CA-38614, mem. op. (N.M. Ct. App. July 6, 2021) (nonprecedential). The district court may aggregate evidence to determine whether the children, youth and families department has proven by clear and convincing evidence that a child is neglected. — While 32A-4-2(G)(2) NMSA 1978 does not contain express language permitting aggregation, the enumeration of multiple areas of proper parental care and control indicate that the district court is allowed to consider together evidence bearing on different areas of proper parental care and control in its determination of neglect. Where there are multiple failures to provide proper parental care or control, which alone may have been insufficient to rise to the level of neglect, the combined effect of these failures may be sufficient to constitute neglect under 32A-4-2(G)(2) NMSA 1978, but it remains the children, youth and families department's burden to provide by clear and convincing evidence that the combined effect left the child without proper parental care and control necessary for the child's well-being, and the child's neglect can be attributed to the fault or failure of the parent. State ex rel. CYFD v. Heather S., 2025-NMSC-002, rev'g A-1-CA-38614, mem. op. (N.M. Ct. App. July 6, 2021) (nonprecedential). Substantial evidence of a clear and convincing nature did not support the district court's adjudication of child as a neglected child as a matter of law. — In an abuse and neglect proceeding, the district court's findings that mother failed to meet child's medical needs, failed to protect child from domestic violence, failed to maintain a safe and stable home, and failed to meet child's educational needs were not supported by substantial evidence, because the evidence did not establish by clear and convincing evidence that child was without proper parental care and control necessary to address his medical needs but instead showed that mother consistently sought out support and treatment for child up until the time the children, youth and families department (CYFD) took child into custody, the district court was presented with a single incident of domestic violence for which child was not present and there was no evidence of any ongoing abuse, the CYFD failed to explain how any risk of harm rose to the level of a serious risk that was likely to result in important and dangerous consequences to child rather than a mere speculation of harm, and CYFD did not present clear and convincing evidence to show that mother's failure to satisfy child's educational needs was mother's fault and not due to circumstances beyond her control. State ex rel. CYFD v. Heather S., 2025-NMSC-002, rev'g A-1-CA-38614, mem. op. (N.M. Ct. App. July 6, 2021) (nonprecedential). The district court's adjudication of child as neglected was not supported by substantial evidence of a clear and convincing nature. — Where the children, youth and families department (CYFD) initiated an investigation, which led to the filing of a petition for neglect and abuse against parents, based on a report from the hospital that the child's mother had tested positive for drug use, and where, during a home visit, the CYFD investigator observed cockroaches on the floor, the walls, the cabinets, the bed, the legs of the child's changing table, and on the table where the child's bottles and formula were kept, and where, following the establishment of a safety plan where the parents were required to address the condition of the home, the CYFD investigator, during a second home visit, observed that the cockroach situation had worsened, resulting in the child being taken into CYFD custody even though the child had not been in the parents' home during the second inspection and had remained safely at a relative's house throughout this period, and where, based on the CYFD investigator's testimony, the district court found clear and convincing evidence of neglect by the child's father, the district court's adjudication of neglect was not supported by substantial evidence of a clear and convincing nature where CYFD failed to establish that the child was subjected to circumstances that created a serious risk to the child's mental or physical health and safety or that any lack of proper parental care and control was because of the faults and habits of the father. State ex rel. CYFD v. Anthony D., 2025- NMCA-015. Standard of proof of abuse and neglect at adjudicatory hearing. — Where father’s parental rights to his three children were terminated following the district court’s adjudication of neglect, and where father argued that the federal Indian Child Welfare Act of 1978 (ICWA) and New Mexico state law require the district court at the adjudicatory hearing to find that father abused or neglected children by evidence beyond a reasonable doubt, rather than by clear and convincing evidence, the district court did not err in applying a clear and convincing standard of proof at the adjudicatory hearing, because proof of neglect or abuse at an adjudicatory hearing in an ICWA case in New Mexico is by clear and convincing evidence, and in this case, the district court properly found neglect by father under 32A-4-2(G)(2) NMSA 1978, at the adjudicatory hearing, applying the clear and convincing evidence standard of proof, and in contrast, made its finding of neglect at the termination of parental rights (TPR) hearing by evidence beyond a reasonable doubt. There was no error in these finding or in the standard of proof applied by the district court at either the adjudicatory hearing or the TPR hearing. CYFD v. James M., 2023-NMCA-025, cert. denied. Proof of perpetrator of child abuse. — Subsection B of Section 32A-4-2 NMSA 1978 does not require a specific determination of which parent’s actions or inactions caused a child to be put at risk when adjudicating the child as abused and evidence that the abuse was perpetrated by either parent is sufficient for a court to conclude that the action or inaction of a parent caused the abuse and bring the case within the scope of the statute. State ex rel. Children, Youth and Families Dep’t v. Carl C., 2012-NMCA- 065, 281 P.3d 1242. Where the parents of a child were the primary caregivers of the child; the court found by clear and convincing evidence that one parent or the other parent, or both, had caused severe physical injuries to the child; and the court could not determine which parent specifically had been the perpetrator, the court did not err in adjudicating the child as abused without determining which parent actually caused the injuries suffered by the child. State ex rel. Children, Youth and Families Dep’t v. Carl C., 2012-NMCA-065, 281 P.3d 1242. Act not unconstitutionally vague. — Abuse and Neglect Act is not unconstitutionally vague. State ex rel. Children, Youth & Families Dept. v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367. Sufficient evidence of neglect. — Where the children lived with the mother; the father and the mother failed to see to the well-being, needs and support of the children; the father knew about the mother’s propensities for drug abuse and domestic violence and knew or should have known about the children, youth and families department involvement with the children and the placement of the children with fictive kin; the father indicated to the department that he had no concerns regarding the care of the children; the father failed to respond to messages from the department and failed to appear at meetings with the department; the father was delinquent with child support; the father visited the children only once or twice a month; and the father made no effort to have the children live with him, the evidence was clear and convincing that the father neglected the children. State ex rel. Children, Youth & Families Dep't v. Cosme V., 2009-NMCA-094, 146 N.M. 809, 215 P.3d 747, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358. Sufficient evidence of neglect based on abandonment. — Where father was found by the district court to have neglected his child by abandoning her, and where father claimed that his lack of knowledge that the child's mother, who had custody of the infant, would neglect her, and that his lack of certain knowledge, through DNA testing, that he in fact was the father of the child negated any conclusion of abandonment under 32A-4-2(A)(2) NMSA 1978, the district court's determination that father had abandoned and thus neglected the child were supported by clear and convincing evidence, where the evidence demonstrated that father left the child in the care of mother without provision for support or communication, that the child was neglected while in mother's care, and that father was on notice and acknowledged that he was the father of the child. State ex rel. CYFD v. Michael H., 2018-NMCA-032, cert. denied. Insufficient evidence of neglect. — Evidence that the newborn child’s initial toxicology test was positive, that the mother admitted to using narcotics and marijuana during her pregnancy, and that the mother left the child in the care of nurses while she left the hospital to smoke was insufficient to make the child neglected because of the mother’s intentional or negligent disregard of the child’s wellbeing and proper needs. State ex rel., Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141 N.M. 299, 154 P.3d 674. Evidence that the mother of a newborn child had a long history of drug abuse, a criminal history and a history of violence was insufficient to show that the mother was actually unable to provide proper parental care or discharge her responsibilities to the child. State ex rel., Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141 N.M. 299, 154 P.3d 674. Insufficient evidence of mental disorder or incapacity. — Where the legislature intended mental incapacity to encompass those circumstances in which an individual, due to an intellectual disability, is unable, as opposed to unwilling, to discharge his or her responsibilities to a child, the district court’s conclusion that child was neglected pursuant to 32A-4-2E(4) NMSA 1978 was not supported by the evidence when the district court did not make any findings that mother suffered from a mental disorder or illness, nor did it find that mother suffered from mental incapacity, but explicitly found that mother was capable of learning and mastering information, but that her defiant attitude was affecting her ability to recognize the conditions she needed to improve in order to safely parent child. The district court erred in concluding that child was neglected pursuant to 32A-4-2E(4) and in concluding that the children, youth and families department established by clear and convincing evidence that a mental disorder or incapacity caused mother’s inability to discharge her responsibilities to child. State ex rel. CYFD v. Christina L., 2015-NMCA-115. "Abandonment". — Parent abandoned children when parent left children in the care of their other parent, when the parent knew about drugs and had neglected the children; parent offered very little support to children before becoming incarcerated and then squandered any opportunity to be present in the children’s lives by violating probation and becoming incarcerated; and while in prison, parent made no attempts to contact or support the children or to ensure their safety. State ex rel. Children, Youth & Families Dep’t v. William M., 2007-NMCA-055, 141 N.M. 705, 161 P.3d 262. "Abused child". — Prior to its amendment in 1997, the definition of "abused child," did not permit the children's court to adjudicate a child abused or neglected where there was no evidence that the parent, guardian or custodian was responsible for the abuse or neglect. State ex rel. Children, Youth & Families Dep't v. Vincent L., 1998-NMCA- 089, 125 N.M. 452, 963 P.2d 529, cert. denied, 125 N.M. 654, 964 P.2d 818. Proof that a child's sibling was abused, in and of itself, does not render the child endangered. — Where parents appealed the district court's adjudication of abuse against parent's son (child), based on the endangerment definition of "abused child" in § 32A-4-2(B)(4) NMSA 1978, and on the court's finding of aggravated circumstances under § 32A-4-2(C)(1), the district court erred in its finding of abuse, because the children, youth and families department (CYFD) did not meet its burden to prove by clear and convincing evidence that the parents' child was an "abused child" under § 32A-4-2(B)(4). CYFD's contention that the child's sibling was physically abused in and of itself is insufficient to support a finding that the child was "abused" or is endangered under § 32A-4-2(B)(4). CYFD v. Carmella M., 2022-NMCA-052. "Abused and neglected". — Where parent left the children unattended for long periods of time, exposed them to dangerous situations, failed to understand their physical and emotional needs, failed to empathize with their feelings, was self-centered in the parent’s interactions with them, exposed them to domestic violence, exposed them to substance abuse, showed an indifference to their needs in favor of the parent’s own needs, and placed them with inappropriate caretakers, the children were abused and neglected. In re Termination of Parental Rights of Eventyr J., 1995-NMCA-087, 120 N.M. 463, 902 P.2d 1066 (Ct. 108), cert. denied 120 N.M. 394, 902 P.2d 76. "Aggravated circumstances". — Sections 32A-4-2C, 32A-4-22C, and 32A-4-28B(2) NMSA 1978 are constitutional facially and as applied to a mother, whose parental rights were terminated without the state making reasonable efforts toward family reunification, where the mother had previously had parental rights terminated as to another child and no progress was evident in the mother's efforts to kick a 4-year drug abuse problem. State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845. Where parent left the children in the care of another, was involved in criminal activity, became unavailable due to parent’s incarceration, substance abuse was present in the home, and parent failed to maintain a relationship with the children, aggravating circumstances existed. State ex rel. Children, Youth & Families Dep’t v. William M., 2007-NMCA-055, 161 P.3d 262. Where mother emphasized that she has not abused child and has not had an opportunity to actually demonstrate her parenting skills with child, and while true, the court noted that she has had an opportunity to demonstrate her abilities with five older children, and her admission of involuntary termination of her parental rights to those older children operates as clear and convincing proof of that fact, while this fact is not determinative for a finding of abuse and neglect, it is considered an aggravated circumstance under the Abuse and Neglect Act in the context of termination of parental rights. State ex rel. Children, Youth & Families Dept. v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367. Stepfather as "custodian". — A stepfather meets the definition of "custodian" for purposes of the court's subject matter jurisdiction over him in a proceeding on a petition alleging abuse or neglect of a child. In re Candice Y., 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, cert. denied, 129 N.M. 207, 4 P.3d 35. "Neglected". — Parent neglected children through parent's failure to be involved in the children's lives prior to parent's incarceration, failure to provide a safe and stable home by dealing drugs in the home, parent's decision to leave the children's home when they were very young, parent's decision to violate the terms of parent's probation resulting in parent's incarceration, and parent's failure to provide for the children or protect them from the other parent's neglect both prior to and during parent's incarceration. State ex rel. Children, Youth & Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262. Although low IQ, mental disability, or mental illness alone are not sufficient grounds for a finding of abuse or neglect where mother was unable to effectively parent due to her mental disorder and incapacity, this finding meets the definition of neglect under Subsection E(4) of this section. State ex rel. Children, Youth & Families Dept. v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367. Evidence that a mother left her children in the care at their grandparents presented insufficient evidence to prove that mother was unfit to care for her children and failed to show that the children were "neglected" under Paragraph E(2), where mother left the children with the grandparents for extended periods of time but she visited them and had them to her various residences on a regular basis. In re Guardianship of Ashleigh R., 2002-NMCA-103, 132 N.M. 772, 55 P.3d 984, cert. denied, 132 N.M. 732, 55 P.3d 428. Neglect of psychological needs. — The New Mexico Children's Code's definition of a "neglected child" is subject to broad interpretation and arguably encompasses situations where the child's psychological needs are neglected. Martinez v. Mafchir, 35 F.3d 1486 (10th Cir. 1994). Definition of "sexual abuse" constitutional. — The definition of "sexual abuse" in this section is not unconstitutionally vague as applied to defendant's conduct which fit squarely within the specifically prohibited conduct, namely criminal sexual contact of a minor. In re Candice Y., 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, cert. denied, 129 N.M. 207, 4 P.3d 35. Retardation evidence not required for ruling on neglect. — In a neglect proceeding, evidence that a child is severely retarded is not required for a ruling that the child is neglected. State ex rel. Health & Soc. Servs. Dep't v. Natural Father, 1979-NMCA-090, 93 N.M. 222, 598 P.2d 1182. Incarceration. — Even though incarceration alone is not an appropriate reason to terminate parental rights, where the father was convicted of the murder of the mother, his subsequent long-term incarceration was sufficient to establish that the child was neglected, and that termination of his parental rights was justified. State ex rel. Children, Youth & Families Dep't v. Joe R., 1997-NMSC-038, 123 N.M. 711, 945 P.2d 76. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). For article, "Treating Children Under the New Mexico Mental Health and Developmental Disabilities Code," see 10 N.M.L. Rev. 279 (1980). For note, "Children's Code - Neglect - State ex rel. Health & Social Services Department v. Natural Father," see 12 N.M.L. Rev. 505 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. — Power of court or other public agency to order medical treatment for child over parental objections not based on religious grounds, 97 A.L.R.3d 421. 32A-4-3. Duty to report child abuse and child neglect; responsibility to investigate child abuse or neglect; penalty; notification of plan of safe care. A. Every person, including a licensed physician; a resident or an intern examining, attending or treating a child; a law enforcement officer; a judge presiding during a proceeding; a registered nurse; a visiting nurse; a school employee; a social worker acting in an official capacity; or a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to: (1) a local law enforcement agency; (2) the department; or (3) a tribal law enforcement or social services agency for any Indian child residing in Indian country. B. A law enforcement agency receiving the report shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to the department and shall transmit the same information in writing within forty-eight hours. The department shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to a local law enforcement agency and shall transmit the same information in writing within forty-eight hours. The written report shall contain the names and addresses of the child and the child's parents, guardian or custodian, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries, and other information that the maker of the report believes might be helpful in establishing the cause of the injuries and the identity of the person responsible for the injuries. The written report shall be submitted upon a standardized form agreed to by the law enforcement agency and the department. C. The recipient of a report under Subsection A of this section shall take immediate steps to ensure prompt investigation of the report. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect. A local law enforcement officer trained in the investigation of child abuse and neglect is responsible for investigating reports of alleged child abuse or neglect at schools, daycare facilities or child care facilities. D. If the child alleged to be abused or neglected is in the care or control of or in a facility administratively connected to the department, the report shall be investigated by a local law enforcement officer trained in the investigation of child abuse and neglect. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect. E. A law enforcement agency or the department shall have access to any of the records pertaining to a child abuse or neglect case maintained by any of the persons enumerated in Subsection A of this section, except as otherwise provided in the Abuse and Neglect Act. F. A person who violates the provisions of Subsection A of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. G. A finding that a pregnant woman is using or abusing drugs made pursuant to an interview, self-report, clinical observation or routine toxicology screen shall not alone form a sufficient basis to report child abuse or neglect to the department pursuant to Subsection A of this section. A volunteer, contractor or staff of a hospital or freestanding birthing center shall not make a report based solely on that finding and shall make a notification pursuant to Subsection H of this section. Nothing in this subsection shall be construed to prevent a person from reporting to the department a reasonable suspicion that a child is an abused or neglected child based on other criteria as defined by Section 32A-4-2 NMSA 1978, or a combination of criteria that includes a finding pursuant to this subsection. H. A contractor or staff of a hospital, freestanding birthing center or clinic that provides prenatal or perinatal care shall: (1) complete a written plan of safe care for a substance-exposed newborn or a pregnant person who agrees to creating a plan of safe care, as provided for by department rule and the Children's Code; and (2) provide notification to the health care authority. Notification by a health care provider pursuant to this paragraph shall not be construed as a report of child abuse or neglect. I. As used in this section, "notification" means informing the health care authority that a substance-exposed newborn was born and providing a copy of the plan of safe care that was created for the child; provided that notification shall comply with federal guidelines and shall not constitute a report of child abuse or neglect. The health care authority shall be responsible for ensuring compliance with federal reporting requirements related to plans of safe care. J. As used in this section, "school employee" includes employees of a school district or a public school. History: 1978 Comp., § 32A-4-3, enacted by Laws 1993, ch. 77, § 97; 1997, ch. 34, § 2; 2003, ch. 189, § 1; 2005, ch. 189, § 38; 2019, ch. 190, § 2; 2021, ch. 94, § 10; 2025, ch. 156, § 8. ANNOTATIONS The 2025 amendment, effective June 20, 2025, provided that the health care authority is responsible for ensuring compliance with federal reporting requirements related to plans of safe care, and made technical amendments; in Subsection H, in the introductory clause, after "birthing center" added "or clinic that provides prenatal or perinatal care", in Paragraph H(1), after "substance-exposed newborn" added "or a pregnant person who agrees to creating a plan of safe care", in Paragraph H(2), after "notification to the" deleted "department" and added "health care authority"; and in Subsection I, after "informing the" deleted "department" and added "health care authority", and after "report of child abuse or neglect" added "The health care authority shall be responsible for ensuring compliance with federal reporting requirements related to plans of safe care.". The 2021 amendment, effective June 18, 2021, defined "school employee" as used in this section; in Subsection A, after "visiting nurse; a", deleted "schoolteacher; a school official" and added "school employee"; and added Subsection J. The 2019 amendment, effective June 14, 2019, provided that a finding that a pregnant woman is using or abusing drugs shall not alone form a sufficient basis to report child abuse or neglect, required volunteers, contractors or staff of a hospital or freestanding birthing center to complete a written plan of care for a substance-exposed newborn and to provide notification to the children, youth and families department that a substance- exposed newborn was born; in the section heading, after "penalty", added "notification of plan of care"; and added Subsections G through I. The 2005 amendment, effective June 17, 2005, deleted the requirement in Subsections A and B that reports be made to the department office in the county where the child resides; and provided in Subsections C and D that a law enforcement officer trained in the investigation of child abuse and neglect is responsible for investigating reports of abuse and neglect. The 2003 amendment, effective July 1, 2003, in Subsection A, deleted "but not limited to" near the beginning, inserted "or a member of the clergy who has information that is not privileged as a matter of law" following "an official capacity"; substituted "agency" for "agencies" in Paragaraph A(3); substituted "A department office" for "Any office of the department" preceding "receiving a report" in Subsection B. The 1997 amendment, effective July 1, 1997, inserted "responsibility to investigate child abuse or neglect" in the section heading, deleted "or persons" following "person" in the next-to-last sentence in Subsection B, substituted "alleged abused" for "abused" in the second sentence in Subsection C and in the second sentence in Subsection D, added the third sentence in Subsection C, deleted former Subsection D relating to abuse or neglect of a child while in the care of a child care facility or family day care home, redesignated former Subsections E to G as Subsections D to F, and substituted "by local law enforcement" for "through the office of the district attorney" at the end of the first sentence in Subsection D. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-15 NMSA 1978 have been included in the annotations to this section. Scope of duty to report child abuse. — The child abuse reporting requirement of this section expressly applies to "every person," and although the statute lists specific occupational groups, the language of the statute expressly emphasizes that the list is not exclusive. State v. Strauch, 2015-NMSC-009, rev’g 2014-NMCA-020. Statements made by an alleged child abuser to his social worker therapist, a mandated reporter under the Abuse and Neglect Act, are not protected from disclosure in a court proceeding as a result of the specific exception to the physician-patient and psychotherapist-patient evidentiary privilege in Rule 11-504(D)(4) NMRA, which provides that no privilege shall apply for confidential communications concerning any material that a social worker is required by law to report to a public employee or public agency. State v. Strauch, 2015-NMSC-009, rev’g 2014-NMCA-020. "Official capacity" defined. — The language "acting in an official capacity" as set forth in Subsection A of this section is synonymous with acting in a "professional capacity", and is used to distinguish between child abuse knowledge gained through activities in the listed occupations and knowledge gained in other capacities. State v. Strauch, 2015-NMSC-009, rev’g 2014-NMCA-020. Scope of duty to report child abuse. — The statutory requirement to report child abuse does not apply to every person, but instead applies to the categories of people listed in Section 32A-4-3(A) NMSA 1979 and other professionals or government officials who are likely to come into contact with abused and neglected children during the course of their professional work. State v. Strauch, 2014-NMCA-020, cert. granted, 2014-NMCERT-001. Duty of social workers to report child abuse. — The mandatory reporting requirement set forth in Section 32A-4-3(A) NMSA 1978 applies principally to social workers in school and other governmental settings. State v. Strauch, 2014-NMCA-020, cert. granted, 2014-NMCERT-001. Social worker acting as a private mental health provider. — Where defendant, who was charged with criminal sexual penetration of a minor, made confidential communications to a licensed social worker during private counseling sessions for the purpose of diagnosis and treatment; and defendant’s ex-spouse participated in the counseling sessions, defendant had the privilege pursuant to Rule 11-504 NMRA to refuse to disclose and to prevent the social worker and defendant’s ex-spouse from disclosing information defendant communicated during the counseling sessions because the mandatory reporting requirement in Section 32A-4-3(A) NMSA did not apply to the social worker or to defendant’s ex-spouse. State v. Strauch, 2014-NMCA- 020, cert. granted, 2014-NMCERT-001. Dismissals from human services department [health care authority department] were in accordance with law and supported by substantial evidence, which included the failure to promptly report the alleged sexual abuse of a child to the proper authorities. Perkins v. Dep't of Human Servs., 1987-NMCA-148, 106 N.M. 651, 748 P.2d 24. Requirement of "consultation" in Section 32-1-15 NMSA 1978 is not due process pre-deprivation hearing requirement, and plaintiff day-care center operator's constitutional right to due process was not violated by the human services department's [health care authority department's] transfer of state subsidized children to other facilities and suspension of federal funds pending completion of an investigation. Rice v. Vigil, 642 F. Supp. 212 (D.N.M. 1986), aff'd sub nom. Rice v. N. M., 854 F.2d 1323 (10th Cir. 1988). Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). For article, "Salt in the Wounds: Why Attorneys Should Not be Mandated Reporters of Child Abuse", see 36 N.M. L. Rev. 125 (2006). Am. Jur. 2d, A.L.R. and C.J.S. references. — 42 Am. Jur. 2d Infants § 16. Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396. Sexual abuse of child by parent as ground for termination of parent's right to child, 58 A.L.R.3d 1074. Parent's involuntary confinement, or failure to care for child as result thereof, as evincing neglect, unfitness or the like in dependency or divestiture proceeding, 79 A.L.R.3d 417. Admissibility of expert medical testimony on battered child syndrome, 98 A.L.R.3d 306. Validity and construction of penal statute prohibiting child abuse, 1 A.L.R.4th 38. Validity, construction, and application of state statute requiring doctor or other person to report child abuse, 73 A.L.R.4th 782. Physical examination of child's body for evidence of abuse as violative of Fourth Amendment or as raising Fourth Amendment issue, 93 A.L.R. Fed. 530. 43 C.J.S. Infants § 14. 32A-4-4. Complaints; referral; preliminary inquiry. A. Reports alleging neglect or abuse shall be referred to the department, which shall conduct an investigation to determine the best interests of the child with regard to any action to be taken. The name and information regarding the person making the report shall not be disclosed absent the consent of the informant or a court order. B. If a report alleging neglect or abuse meets the criteria established pursuant to Section 32A-4-4.1 NMSA 1978, the department may assign the case to the multilevel response system. C. During the investigation of a report alleging neglect or abuse, the matter may be referred to another appropriate agency and conferences may be conducted for the purpose of effecting adjustments or agreements that will obviate the necessity for filing a petition. A representative of the department shall, at the initial time of contact with the party subject to the investigation, advise the party of the reports or allegations made, in a manner that is consistent with laws protecting the rights of the informant. The parties shall be advised of their basic rights and no party may be compelled to appear at any conference, to produce any papers or to visit any place. The investigation shall be completed within a reasonable period of time from the date the report was made. D. After completion of the investigation on a neglect or abuse report, the department shall either recommend or refuse to recommend the filing of a petition. E. When a child is taken into custody, the department shall file a petition within three days, unless the provisions of Subsection F of Section 32A-4-7 NMSA 1978 apply, in which case the petition shall be filed within five days. F. When the department files a petition, it shall simultaneously provide to the office of family representation and advocacy, and if a child is an Indian child, to the child's Indian nation, tribe or pueblo: (1) the petition; (2) the name, telephone numbers and addresses of each respondent; and (3) the names, dates of birth and placement information for each child who is a subject of the petition, including: (a) the type of placement; and (b) the name, telephone number and address for the person or entity that holds the license for each child's placement. G. If a petition is not filed in a timely manner, the child shall be released to the child's parent, guardian or custodian. History: 1978 Comp., § 32A-4-4, enacted by Laws 1993, ch. 77, § 98; 2005, ch. 189, § 39; 2019, ch. 137, § 1, 2023, ch. 172, § 1. ANNOTATIONS The 2023 amendment, effective June 16, 2023, extended the time for filing a petition alleging neglect or abuse, and added notice provisions; in Subsection E, after "shall file a petition within", deleted "two" and added "three", and added "unless the provisions of Subsection F of Section 32A-4-7 NMSA 1978 apply, in which case the petition shall be filed within five days"; and added Subsection F and subsection designation "G.". The 2019 amendment, effective July 1, 2020, provided the children, youth and families department with the authority to assign a case to the multilevel response system if a report alleging neglect or abuse meets the criteria of Section 32A-4-4.1 NMSA 1978; and added a new Subsection B and redesignated former Subsections B through D as Subsections C through E, respectively. The 2005 amendment, effective June 17, 2005, in Subsection A, provided that the name and information regarding the person making the report shall not be disclosed absent the consent of the informant or a court order; in Subsection B, provided that a representative of the department shall at the initial time of contact with a party, advise the party of the reports of allegations in a manner that is consistent with the laws protecting the informant; and in Subsection D, provided that when a child is taken into custody, the department shall file a petition within two days. A third party has no standing to bring an abuse and neglect action. — Where the petitioner, who was the child’s aunt by marriage, filed a petition for custody of the child; the child lived with the child’s grandmother; the child’s mother had consented to a kinship guardianship of the child to the grandmother; petitioner alleged that the child was abused by the grandmother and the mother; and the children, youth and families department found that the abuse allegations were unsubstantiated, the petitioner lacked standing to bring a custody case. Vescio v. Wolf, 2009-NMCA-129, 147 N.M. 374, 223 P.3d 371. 32A-4-4.1. Multilevel response system. A. The department shall establish a multilevel response system to evaluate and provide services to a child or the family, relatives, caretakers or guardians of a child with respect to whom a report alleging neglect or abuse has been made. The multilevel response system may include an alternative to investigation upon completion of an evaluation that may be completed at intake by the department, the results of which indicate that there is no immediate concern for the child's safety; provided, however, that an investigation shall be conducted for any report: (1) alleging sexual abuse of a child or serious or imminent harm to a child; (2) indicating a child fatality; (3) requiring law enforcement involvement, as identified pursuant to rules promulgated by the department; or (4) requiring a specialized assessment or a traditional investigative approach, as determined pursuant to rules promulgated by the department. B. The department may remove a case from the multilevel response system and conduct an investigation if imminent danger of serious harm to the child becomes evident. The department may reassign a case from investigation to the multilevel response system at the discretion of the department. C. For each family, including the child who is the subject of a report to the department and that child's relatives, caretakers or guardians, that receives services under the multilevel response system, the department shall conduct a family assessment. Based on the results of the family assessment, the department may offer or provide referrals for counseling, training or other services aimed at addressing the underlying causative factors jeopardizing the safety or well-being of the child who is the subject of a report to the department. A family member, relative, caretaker or guardian may choose to accept or decline any services or programs offered under the multilevel response system; provided, however, that if a family member, relative, caretaker or guardian declines services, the department may choose to proceed with an investigation. D. The department shall employ licensed social workers to provide services to families, relatives, caretakers or guardians participating in the multilevel response system to the extent that licensed social workers are available for employment. E. The department shall: (1) provide an annual report of system implementation and outcomes to the legislative finance committee, the interim legislative health and human services committee, the interim legislative committee that studies courts, corrections and justice and the department of finance and administration as part of the department's budget submission; (2) arrange for an independent evaluation of the multilevel response system, including examining outcomes for child safety and well-being and cost-effectiveness; (3) incorporate the multilevel response system into the department's quality assurance review process; (4) develop performance measures, as provided in the Accountability in Government Act [Chapter 6, Article 3A NMSA 1978], for the multilevel response system; and (5) implement the multilevel response system statewide no later than July 1, 2027. F. The department shall promulgate rules to implement the provisions of this section. G. As used in this section, "family assessment" means a comprehensive, evidence- based assessment tool used by the department to determine the needs of a child and the child's family, relatives, caretakers or guardians at the time the department receives a report of child abuse and neglect, including an assessment of the likelihood of: (1) imminent danger to a child's well-being; (2) the child becoming an abused child or a neglected child; and (3) the strengths and needs of the child's family members, relatives, caretakers or guardians with respect to providing for the health and safety of the child. History: 1978 Comp., § 32A-4-4.1, as enacted by Laws 2019, ch. 137, § 2; 2025, ch. 156, § 9. ANNOTATIONS The 2025 amendment, effective June 20, 2025, deleted language allowing the children, youth and families department to implement a pilot program of multilevel response, and added language requiring the children, youth and families department to implement a multilevel response system statewide by July 1, 2027; deleted former Subsections E and F and redesignated former Subsections G through I as Subsections E through G, respectively; and in Subsection E, Paragraph E(1), after "legislative finance committee" added "the interim legislative health and human services committee, the interim legislative committee that studies courts, corrections and justice", and in Paragraph E(5), after the paragraph designation, added "implement the multilevel response system statewide", and after "July 1", deleted "2022, if the department pilots or otherwise geographically limits the multilevel response system, submit a plan to the legislative finance committee and the department of finance and administration setting forth how the system could be expanded statewide, including a plan to address service availability, and identifying costs that would be incurred by the department" and added "2027". 32A-4-5. Admissibility of report in evidence; immunity of reporting person; investigation of report. A. In any proceeding alleging neglect or abuse under the Children's Code resulting from a report required by Section 32A-4-3 NMSA 1978 or in any proceeding in which that report or any of its contents are sought to be introduced in evidence, the report or its contents or any other facts related thereto or to the condition of the child who is the subject of the report shall not be excluded on the ground that the matter is or may be the subject of a physician-patient privilege or similar privilege or rule against disclosure. B. Anyone reporting an instance of alleged child neglect or abuse or participating in a judicial proceeding brought as a result of a report required by Section 32A-4-3 NMSA 1978 is presumed to be acting in good faith and shall be immune from liability, civil or criminal, that might otherwise be incurred or imposed by the law, unless the person acted in bad faith or with malicious purpose. C. After properly verifying the identity of the public official, any school personnel or other person who has the duty to report child abuse pursuant to Section 32A-4-3 NMSA 1978 shall permit a member of a law enforcement agency, including tribal police officers, an employee of the district attorney's office, an investigative interviewer for a program described in Subsection E of this section or an employee of the department, to interview a child with respect to a report without the permission of the child's parent or guardian. Any person permitting an interview pursuant to this subsection is presumed to be acting in good faith and shall be immune from liability, civil or criminal, that might otherwise be incurred or imposed by law, unless the person acted in bad faith or with malicious purpose. D. An investigation may be conducted by law enforcement, the district attorney's office, a program described in Subsection E of this section and the department. Interviews shall be conducted in a manner and place that protects the child and family from unnecessary trauma and embarrassment. The investigating entity shall conduct the investigation in a manner that will protect the privacy of the child and the family, with the paramount consideration being the safety of the child. All interactions with child victims and child witnesses shall be conducted in a child-sensitive manner, taking into consideration the special needs of the child and the child's abilities, age and intellectual maturity. The interviews shall be conducted in a place where the child feels secure and in a language that the child uses and understands. E. If a community has a program for child abuse investigation that includes an investigation interview of the alleged victim or child witness, the investigation may be conducted at a site designated by the community program. The child abuse victim or child witness shall, when possible, be interviewed in an environment where the alleged abuse perpetrator will not be present. F. Prior to interviewing a child, the department shall notify the parent or guardian of the child who is being interviewed, unless the department determines that notification would adversely affect the safety of the child about whom the report has been made or compromise the investigation. History: 1978 Comp., § 32A-4-5, enacted by Laws 1993, ch. 77, § 99; 1995, ch. 206, § 22; 2005, ch. 189, § 40; 2009, ch. 239, § 34. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection D, added the last sentence; and in Subsection E, after "alleged victim", added "or child witness"; and added the last sentence. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, in Subsection C, deleted "custodian"; in Subsection D, provided that the investigating entity shall conduct the investigation in a manner that will protect the privacy of the child and the family with paramount consideration being the safety of the child; and added Subsection F, which provided that prior to interviewing the child, the department shall notify the child's parent or guardian, unless notification would adversely affect the safety of the child or compromise the investigation. The 1995 amendment, effective July 1, 1995, added "investigation of report" in the section heading, added "an employee of the district attorney's office, an investigative interviewer for a program described in Subsection E of this section" in Subsections C and D, and added Subsection E. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity, construction, and application of statute limiting physician-patient privilege in judicial proceedings relating to child abuse or neglect, 44 A.L.R.4th 649. 32A-4-6. Taking into custody; penalty. A. A child may be held or taken into custody: (1) by a law enforcement officer when the officer has evidence giving rise to reasonable grounds to believe that the child is abused or neglected and that there is an immediate threat to the child's safety; provided that the law enforcement officer contacts the department to enable the department to conduct an on-site safety assessment to determine whether it is appropriate to take the child into immediate custody, except that a child may be taken into custody by a law enforcement officer without a protective services assessment being conducted if: (a) the child's parent, guardian or custodian has attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child's sibling; (b) the child's parent, guardian or custodian has attempted, conspired to cause or caused great bodily harm or death to another parent, guardian or custodian of the child; (c) the child has been abandoned; (d) the child is in need of emergency medical care; (e) the department is not available to conduct a safety assessment in a timely manner; or (f) the child is in imminent risk of abuse; or (2) by medical personnel when there are reasonable grounds to believe that the child has been injured as a result of abuse or neglect and that the child may be at risk of further injury if returned to the child's parent, guardian or custodian. The medical personnel shall hold the child until a law enforcement officer is available to take custody of the child pursuant to Paragraph (1) of this subsection. B. A child shall not be taken into protective custody solely on the grounds that the child's parent, guardian or custodian refuses to consent to the administration of a psychotropic medication to the child. C. When a child is taken into custody by law enforcement, the department is not compelled to place the child in an out-of-home placement and may release the child to the child's parent, guardian or custodian. D. When a child is taken into custody, the department shall make active efforts to determine whether the child is an Indian child as required pursuant to the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978]. E. Any person who intentionally interferes with protection of a child, as provided by Subsection A of this section, is guilty of a petty misdemeanor. History: 1978 Comp., § 32A-4-6, enacted by Laws 1993, ch. 77, § 100; 2005, ch. 189, § 41; 2009, ch. 239, § 35; 2015, ch. 51, § 2; 2022, ch. 41, § 48. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act; in Subsection D, after "shall make", deleted "reasonable" and added "active", and after "Indian child", added "as required pursuant to the Indian Family Protection Act"; and deleted former Subsection E and redesignated former Subsection F as Subsection E. The 2015 amendment, effective June 19, 2015, prohibited the taking of a child into protective custody solely on the basis that the child’s parent, guardian or custodian refuses to consent to the administration of a psychotropic medication to the child; in Subsection A, Paragraph (2), after "Subsection", deleted "A of this section"; and added Subsection B, and redesignated the succeeding subsections accordingly. The 2009 amendment, effective July 1, 2009, in Paragraph (1) of Subsection A, after "when the officer has", deleted language which provided that an officer who has reasonable grounds to believe a child is suffering from illness or injury as a result of abuse or neglect or has been abandoned or is in danger could take the child into custody; and added the remainder of the sentence; added Subparagraphs (a) through (f) of Paragraph (1) of Subsection A; in Paragraph (2) of Subsection A, in the last sentence, after "custody of the child", deleted "or until a law enforcement officer has authorized release of the child to the department", and added the remainder of the sentence; and added Subsection B. The 2005 amendment, effective June 17, 2005, in Subsection B, deleted "by the department". Qualified immunity. — Social workers and a sheriff who took temporary custody of children without parental consent or a court order were entitled to qualified immunity where they had a reasonable belief that a "sufficient emergency existed" to warrant taking the children into temporary custody. Oldfield v. Benavidez, 1994-NMSC-006, 116 N.M. 785, 867 P.2d 1167. Warrant required to enter home. — For the purpose of qualified immunity analysis, it is clearly established that an officer could not enter a home without a warrant absent exigent circumstances or an emergency situation. Chavez v. Board of Cnty. Comm'rs, 2001-NMCA-065, 130 N.M. 753, 31 P.3d 1027. Exception to warrant requirement. — Implicit in this section and other New Mexico authority is the recognition that a law enforcement officer may not intrude on a person's reasonable expectation of privacy unless the officer has reasonable grounds to believe that immediate action is necessary to safeguard a child from imminent harm or injury. Chavez v. Board of Cnty. Comm'rs, 2001-NMCA-065, 130 N.M. 753, 31 P.3d 1027. Am. Jur. 2d, A.L.R. and C.J.S. references. — Construction and effect of statutes mandating consideration of, or creating presumptions regarding, domestic violence in awarding custody of children, 51 A.L.R.5th 241. 32A-4-7. Release or delivery from custody. A. A person taking a child into custody shall, with all reasonable speed: (1) release the child to the child's parent, guardian or custodian and issue verbal counsel or warning as may be appropriate; or (2) deliver the child to the department or, in the case of a child who is believed to be suffering from a serious physical or mental condition or illness that requires prompt treatment or diagnosis, deliver the child to a medical facility. If a law enforcement officer delivers a child to a medical facility, the officer shall immediately notify the department that the child has been placed in the department's legal custody. B. When an alleged neglected or abused child is delivered to the department, a department caseworker shall review the need for placing the child in custody and shall release the child from custody unless custody is appropriate or has been ordered by the court. When a child is delivered to a medical facility, a department caseworker shall review the need for retention of custody within a reasonable time after delivery of the child to the facility and shall release the child from custody unless custody is appropriate or has been ordered by the court. C. If a child is placed in the legal custody of the department and is not released to the child's parent, guardian or custodian, the department shall give written notice thereof as soon as possible, and in no case later than twenty-four hours, to the child's parent, guardian or custodian together with a statement of the reason for taking the child into custody. D. Reasonable efforts shall be made to prevent or eliminate the need for removing the child from the child's home, with the paramount concern being the child's health and safety. In all cases when a child is taken into custody, the child shall be released to the child's parent, guardian or custodian, unless the department files a petition within three days from the date that the child was taken into custody. E. The department may release the child at any time within the three-day period after the child was taken into custody if it is determined by the department that release is appropriate or if release has been ordered by the court. F. If a child that has been taken into custody and released to the child's parent, guardian or custodian is taken into custody again within one year of having been taken into custody, the child shall not be released from custody until a department review is conducted, in consultation with the children's court managing attorney, to review the child's case and documents and determine whether the child should be released to the child's parent, guardian or custodian or if it is in the best interest of the child to file a petition alleging neglect or abuse. The department's review shall be conducted by a person above the level of supervisor who has been authorized by the secretary of children, youth and families to review such cases. If the secretary has not authorized anyone to review such cases, the department's review shall be conducted by the director of the protective services division of the department. The three-day deadline for filing the petition pursuant to Subsections D and E of this section is extended to five days when the child's case is reviewed pursuant to this subsection. History: 1978 Comp., § 32A-4-7, enacted by Laws 1993, ch. 77, § 101; 1999, ch. 77, § 4; 2005, ch. 189, § 42; 2009, ch. 239, § 36; 2023, ch. 172, § 2. ANNOTATIONS The 2023 amendment, effective June 16, 2023, restricted the return of a child if taken into custody more than once in a year, and required a department review in such cases to determine whether the child should be released or whether to file a petition alleging neglect or abuse; in Subsection D, after "within", deleted "two" and added "three"; in Subsection E, after "within the", deleted "two-day" and added "three-day"; and added new Subsection F. The 2009 amendment, effective July 1, 2009, in Paragraph (2) of Subsection A, in the first sentence, after "child to the department", deleted "or to an appropriate shelter-care facility" and in the second sentence, after "delivers a child to", deleted "a shelter-care facility or"; in Subsection B, in the second sentence, after "child is delivered to", deleted "an appropriate shelter-care facility or"; and added Subsection E. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, changed "custody" to "legal custody" in Subsections A(2) and C. The 1999 amendment, effective July 1, 1999, in Paragraph A(2), substituted "or" for "and" in the first sentence, and inserted "or a medical facility" in the second sentence; in Subsection B, inserted "or medical facility" in the second sentence; and added the first sentence of Subsection D. 32A-4-8. Place of temporary custody. A. Unless a child alleged to be neglected or abused is also alleged or adjudicated delinquent: (1) the child shall not be held in a jail or other facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged to be delinquent children; and (2) there shall be a preference that the child be placed in the home of a relative of the child when a relative is available to provide foster care; provided that: (a) placement with a relative is in the best interest of the child; (b) the relative signs a sworn statement that the relative will not return the child to or allow unsupervised visits with the parent, guardian or custodian who is alleged to have committed the abuse or neglect, unless otherwise directed by the department or the court; and (c) within three days of accepting custody of the child, the relative completes an application form for licensure to operate a foster home pursuant to the Children's Code. B. The department shall make reasonable efforts to locate a relative of the child to provide foster care. If a relative is not available to provide foster care, the child may be placed in: (1) a licensed foster home or any home authorized under the law for the provision of foster care or group care or use as a protective residence; (2) a facility operated by a licensed child welfare services agency; or (3) a facility provided for in the Children's Shelter Care Act [32A-9-1 to 32A-9- 7 NMSA 1978]. History: 1978 Comp., § 32A-4-8, enacted by Laws 1993, ch. 77, § 102; 2019, ch. 21, § 2. ANNOTATIONS The 2019 amendment, effective June 14, 2019, established a preference that a child taken into temporary protective custody be placed with a relative of the child when a relative is available to provide foster care, required relatives providing foster care to initiate licensing procedures within three days of accepting custody of a child, and required the children, youth and families department to make reasonable efforts to locate a relative of the child to provide foster care; deleted former Subsection A and designated the formerly undesignated introductory clause as Subsection A; in Subsection A, in Paragraph A(1), after "delinquent children", deleted "but may be placed in the following community-based shelter care facilities", and added Paragraph A(2); added new subsection designation "B" and redesignated former Subsections B through D as Paragraphs B(1) through B(3), respectively; and in Subsection B, added the introductory clause. Removal of an Indian child from the custody of their guardian requires a finding that active efforts designed to prevent the breakup of the Indian family have been made. — When a petition for abuse and neglect seeking removal of an Indian child from the custody of their parent or legal guardian is filed by CYFD, the district court must make findings required by the federal Indian Child Welfare Act (ICWA) at the adjudicatory hearing, including the finding that active efforts designed to prevent the breakup of the Indian family have been made. The ICWA regulations and the legislative history of ICWA require remedial active efforts be made prior to initiating a placement and must be designed to prevent having to take a child into state custody. The definition of active efforts focuses on the timeliness of those efforts, provides that they be directed to maintaining the Indian child with their family, or, if a separation has already occurred, reuniting the child with their family, and specifies that efforts be conducted, to the maximum extent possible, in partnership with the Indian child's tribe and extended family. Active assistance in utilizing, accessing, and overcoming barriers to services is required regardless of the stage of the proceedings, and to be effective, remedial efforts must be undertaken promptly upon referral to the agency for abuse or neglect. State ex rel. CYFD v. Eric E., 2024-NMCA-026. The district court's finding that the active efforts required by the federal Indian Child Welfare Act were made by CYFD prior to taking the Indian child into involuntary state custody was not supported by substantial evidence. — The district court's finding that CYFD made the active efforts required by the federal Indian Child Welfare Act prior to taking the Indian child into involuntary state custody was not supported by substantial evidence where the record established that CYFD's efforts were not tailored to the goal of restoring the child to his parents, to his extended Indian family, or to his tribal community; CYFD failed to actively search for the child's father and prepare him to reunite with the child, it failed to contact and obtain assistance from the child's tribe, it failed to provide any assistance to the child's guardians in freeing the child for return to a parent or placement with an extended family member, and it offered no evidence to show that it had made active efforts to place the child in the treatment foster care recommended by the residential treatment center where the child had been placed. State ex rel. CYFD v. Eric E., 2024-NMCA-026. A placement preference exists in favor of a child's relatives over non-relatives, but the preference must be tempered by the best interests of the child involved. — The intended purpose of the Abuse and Neglect Act, 32A-4-1 to 32A-4-35 NMSA 1978 in addition to making decisions in the child's best interests and providing due process to all involved parties, is to preserve the unity of the family, and therefore once a child is placed in the custody of the children, youth and families department, and a court has made a finding of abuse or neglect, a placement preference with qualified relatives is triggered, which remains the case for any future permanency changes involving the child. The law also supports, however, the notion that the preference must be tempered by the best interests of the child involved and therefore, there may be circumstances in which a court could reasonably conclude that a non-relative foster parent with whom a child is living and has an emotionally significant relationship may and should be given preference over a relative. Foster Parent Placement Preference (7/1/22), Att'y Gen. Adv. Ltr. 2022-05. 32A-4-9. Indian child placement; preferences. A. An Indian child accepted for foster care or pre-adoptive placement shall be placed in the least restrictive setting that most closely approximates a family in which his special needs, if any, may be met. The Indian child shall also be placed within reasonable proximity to the Indian child's home, taking into account any special needs of the Indian child. In any foster care or pre-adoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with: (1) a member of the Indian child's extended family; (2) a foster care home licensed, approved and specified by the Indian child's tribe; (3) an Indian foster care home licensed or approved by an authorized non- Indian licensing authority; or (4) an institution for children approved by the Indian child's tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs. B. When the placement preferences set forth in Subsection A of this section are not followed or if the Indian child is placed in an institution, a plan shall be developed to ensure that the Indian child's cultural ties are protected and fostered. History: 1978 Comp., § 32A-4-9, enacted by Laws 1993, ch. 77, § 103. ANNOTATIONS The New Mexico Abuse and Neglect Act has incorporated the federal Indian Child Welfare Act’s placement preferences. — The New Mexico Abuse and Neglect Act has incorporated the federal Indian Child Welfare Act’s placement preferences, the overarching concern of which is the maintenance of the family and tribal relationships existing in Indian homes. State ex rel. Children, Youth & Families Dep’t v. Casey J., 2015-NMCA-088. Determining "good cause" for deviating from placement preferences. — Absent good cause to the contrary, foster care placement shall be with the preferences listed in this section. In determining whether good cause exists for deviating from the placement preferences, a court is required to examine the reasons for deviation in light of the prevailing social and cultural standards of the Indian community. The court must give primary consideration to the children’s best interests, but must ensure that the constitutional and other legal rights of all the parties are considered. The party seeking to deviate from the placement preferences bears the burden of establishing the existence of good cause to do so. State ex rel. Children, Youth & Families Dep’t v. Casey J., 2015-NMCA-088. Where Indian children were taken into custody and placed into foster care by the children, youth and families department (department) due to ongoing concerns related to each parent’s issues with substance abuse and domestic violence, the district court did not err in finding that the federal Indian Child Welfare Act’s (ICWA) placement preferences had not been followed, but that good cause existed to deviate from the ICWA placement preferences based on evidence that the department was unable to find a suitable relative or Native American placement for children, that the department made active efforts to comply with the ICWA placement preferences, that there was no objection to the placement by the Navajo Nation, and that the children’s cultural, physical, mental, and emotional needs were being addressed through the children’s treatment plans, despite the unavailability of ICWA preferred placements. State ex rel. Children, Youth & Families Dep’t v. Casey J., 2015-NMCA-088. Due process required. — Process is due when a proceeding affects or interferes with the parent-child relationship. Procedural due process rights are implicated when a person has been denied notice and an opportunity to be heard at a meaningful time and in a meaningful manner. State ex rel. Children, Youth & Families Dep’t v. Casey J., 2015-NMCA-088. Where Indian children were taken into custody and placed into foster care by the children, youth and families department (department) due to ongoing concerns related to each parent’s issues with substance abuse and domestic violence, father’s due process rights were not violated where father’s claimed that his procedural due process rights were violated during a termination of parental rights proceeding, but the claim was factually based on the department’s placement of children during the pendency of the neglect proceedings, rather than his notice and opportunity to participate in the termination proceedings. State ex rel. Children, Youth & Families Dep’t v. Casey J., 2015-NMCA-088. Removal of an Indian child from the custody of their guardian requires a finding that active efforts designed to prevent the breakup of the Indian family have been made. — When a petition for abuse and neglect seeking removal of an Indian child from the custody of their parent or legal guardian is filed by CYFD, the district court must make findings required by the federal Indian Child Welfare Act (ICWA) at the adjudicatory hearing, including the finding that active efforts designed to prevent the breakup of the Indian family have been made. The ICWA regulations and the legislative history of ICWA require remedial active efforts be made prior to initiating a placement and must be designed to prevent having to take a child into state custody. The definition of active efforts focuses on the timeliness of those efforts, provides that they be directed to maintaining the Indian child with their family, or, if a separation has already occurred, reuniting the child with their family, and specifies that efforts be conducted, to the maximum extent possible, in partnership with the Indian child's tribe and extended family. Active assistance in utilizing, accessing, and overcoming barriers to services is required regardless of the stage of the proceedings, and to be effective, remedial efforts must be undertaken promptly upon referral to the agency for abuse or neglect. State ex rel. CYFD v. Eric E., 2024-NMCA-026. The district court's finding that the active efforts required by the federal Indian Child Welfare Act were made by CYFD prior to taking the Indian child into involuntary state custody was not supported by substantial evidence. — The district court's finding that CYFD made the active efforts required by the federal Indian Child Welfare Act prior to taking the Indian child into involuntary state custody was not supported by substantial evidence where the record established that CYFD's efforts were not tailored to the goal of restoring the child to his parents, to his extended Indian family, or to his tribal community; CYFD failed to actively search for the child's father and prepare him to reunite with the child, it failed to contact and obtain assistance from the child's tribe, it failed to provide any assistance to the child's guardians in freeing the child for return to a parent or placement with an extended family member, and it offered no evidence to show that it had made active efforts to place the child in the treatment foster care recommended by the residential treatment center where the child had been placed. State ex rel. CYFD v. Eric E., 2024-NMCA-026. Am. Jur. 2d, A.L.R. and C.J.S. references. — Construction and application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.) upon child custody determinations, 89 A.L.R.5th 195. 32A-4-10. Basic rights. A. A child subject to the provisions of the Children's Code is entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code. B. At the inception of an abuse or neglect proceeding, counsel shall be appointed for the parent, guardian or custodian of the child. The appointed counsel shall represent the parent, guardian or custodian who is named as a party until an indigency determination is made at the custody hearing. Counsel shall also be appointed if, in the court's discretion, appointment of counsel is required in the interest of justice. C. At the inception of an abuse and neglect proceeding, the court shall appoint a guardian ad litem for a child under fourteen years of age. If the child is fourteen years of age or older, the court shall appoint an attorney for the child. No officer or employee of an agency that is vested with the legal custody of the child shall be appointed as guardian ad litem of or attorney for the child. Only an attorney with appropriate experience shall be appointed as guardian ad litem of or attorney for the child. D. When reasonable and appropriate, the court shall appoint a guardian ad litem or attorney who is knowledgeable about the child's particular cultural background. E. When a child reaches fourteen years of age, the child's guardian ad litem shall continue as the child's attorney; provided that the court shall appoint a different attorney for the child if: (1) the child requests a different attorney; (2) the guardian ad litem requests to be removed; or (3) the court determines that the appointment of a different attorney is appropriate. F. The court shall assure that the child's guardian ad litem zealously represents the child's best interest and that the child's attorney zealously represents the child. G. A person afforded rights under the Children's Code shall be advised of those rights at that person's first appearance before the court on a petition under the Children's Code. History: 1978 Comp., § 32A-4-10, enacted by Laws 1993, ch. 77, § 104; 2005, ch. 189, § 43. ANNOTATIONS The 2005 amendment, effective June 17, 2005, in Subsection B, provided that at the inception of an abuse or neglect proceeding, counsel shall be appointed and that counsel shall represent the parent, guardian or custodian who is named as a party; in Subsection C, provided that at the inception of a proceeding, the court shall appoint a guardian ad litem for a child under fourteen years of age and an attorney for a child who is fourteen year of age or older and that only an attorney with appropriate experience shall be appointed as guardian ad litem of or as attorney for the child; added Subsection E, which provided that when a child reaches the age of fourteen, the child’s guardian ad litem shall continue as the child's attorney, unless the court appoints a different attorney for the reasons stated in Paragraphs E(1) through (3); and in Subsection F, provided that the court shall assure that the child's guardian ad litem zealously represents the child’s best interests and that the child's attorney zealously represents the child. Exclusionary rule. — The purpose of the exclusionary rule is not served in an abuse and neglect proceeding whose focus is the health and safety of innocent children. State ex rel. Children, Youth & Families Dep't v. Michael T., 2007-NMCA-163, 143 N.M. 75, 172 P.3d 1287. Effective assistance of counsel. — Where notice of appeal from an adjudication of abuse and neglect is filed late, the court will presume that counsel was ineffective and accept jurisdiction over the appeal. State ex rel. Children, Youth & Families Dep't v. Amanda M., 2006-NMCA-133, 140 N.M. 578, 144 P.3d 137. Judicial immunity. — Judicial immunity was developed to preserve the "autonomy and integrity of the judiciary" so that "persons who are integral to the judicial process are able to perform their functions without the intimidating effect of potential lawsuits." The court bears the statutory responsibility in children's court proceedings for appointing counsel, ensuring the competence of counsel, and for permitting counsel to withdraw. As a result, these are judicial and not administrative functions and there is absolute immunity. Hunnicutt v. Sewell, 2009-NMCA-121, 147 N.M. 272, 219 P.3d 529. A parent has standing to assert the child’s right to counsel in a termination of parental rights proceeding. State ex rel. Children, Youth & Families Dep't v. John R., 2009-NMCA-025, 145 N.M. 636, 203 P.3d 167. Failure to appoint counsel. — The failure of the court to appoint counsel for a child who has turned fourteen years of age during the pendency of a termination of parental rights proceeding is reversible error if the guardian ad litem appointed for the child requests to be removed. State ex rel. Children, Youth & Families Dep't v. John R., 2009- NMCA-025, 145 N.M. 636, 203 P.3d 167. The district court violated parent's statutory right to counsel. — Where the children, youth and families department (CYFD) filed an abuse and neglect petition, alleging that appellant (mother) neglected her two-month old child, and where CYFD moved to terminate mother's parental rights to all four of her children, and where the district court held a termination of parental rights trial, during which mother's court- appointed counsel asked to withdraw from representation, asserting that mother did not want the attorney's representation, and where the district court, without ever asking mother directly whether she intended to waive her right to counsel, proceeded with the trial as if mother waived her right to counsel, mother's statutory right to counsel was violated because the record is devoid of evidence indicating that mother waived her right to counsel, much less that she did so in an intelligent and knowing manner. Moreover, the lack of appointed counsel prejudiced mother because she was unable to effectively contest the allegations levied against her and lacked the ability to challenge the admissibility of evidence that the district court relied on in deciding to terminate mother's parental rights. State ex rel. CYFD v. Maisie Y., 2021-NMCA-023, overruling in part State ex rel. CYFD v. Yodell B., 2016-NMCA-029, 367 P.3d 881. Children's court's failure to appoint guardian not jurisdictional. — In a proceeding to terminate a minor mother's parental rights, the failure of the children's court to appoint a guardian ad litem for the mother did not deprive the court of jurisdiction since the court appointed counsel to represent her pursuant to Rule 1-017C NMRA. State ex rel. Children, Youth & Families Dep't v. Lilli L., 1996-NMCA-014, 121 N.M. 376, 911 P.2d 884. Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights, 92 A.L.R.5th 379. Law reviews. — For note and comment, "Attorneys for Children in Abuse and Neglect Proceedings: Implications for Professional Ethics and Pending Cases", see 36 N.M. L. Rev. 533 (2006). For comment, "Incorporating the Law of Criminal Procedure in Termination of Parental Rights Cases: Giving Children a Voice through Matthews v. Eldridge", see 32 N.M. L. Rev 143 (2002). 32A-4-11. Use immunity. A. At any stage of a proceeding under the Abuse and Neglect Act, the children's court attorney may apply for use immunity for a respondent for in-court testimony. The in-court testimony of an immunized respondent shall not be used against that respondent in a criminal prosecution; provided, however, that the respondent may be prosecuted for perjury that occurs during the respondent's testimony in children's court. B. At any stage of a proceeding under the Abuse and Neglect Act, the children's court attorney may apply for use immunity for any records, documents or other physical objects produced by the immunized respondent in that children's court proceeding, production of which was compelled by a court order. C. At any stage of a proceeding under the Abuse and Neglect Act, the children's court attorney may apply for use immunity for a respondent for any statement that a respondent makes in the course of a court-ordered psychological evaluation or treatment program to the professional designated by the department in furtherance of the court's order. Such immunity shall attach only to those statements made during the course of the actual evaluation or treatment and specifically does not attach to statements made to other department employees, agents or other representatives in the course of the investigation of alleged child abuse or neglect. D. Any other information available to the professional designated by the department to perform the court-ordered evaluation or treatment shall not be the subject of any application or order for immunity. E. All immunized statements referred to in Subsection C that are subsequently reduced to writing shall be deleted before any report is released to law enforcement officers or district attorneys. F. Use immunity orders shall not be entered nunc pro tunc. G. The children's court attorney shall request a hearing on any application for immunity and shall give at least forty-eight hours notice to all parties and to the district attorney for the county in which the alleged abuse or neglect occurred. The district attorney shall have standing to object to the order for immunity. History: 1978 Comp., § 32A-4-11, enacted by Laws 1993, ch. 77, § 105. 32A-4-12. Protective orders. A. At any stage of a proceeding under the Abuse and Neglect Act, the children's court attorney may apply to the court for a protective order restricting the release of immunized testimony, immunized verbal statements for the purpose of psychological evaluation or treatment, or records, documents or other physical objects produced by an immunized respondent pursuant to a court order. The protective order shall apply to any person, except as designated by court order. The purpose of the protective order is to allow the respondents to engage in evaluation and treatment programs as ordered by the court and to ensure that any statement by the respondents will remain privileged and confidential and will not be divulged to any other person, including law enforcement officers and district attorneys. B. The children's court attorney shall apply for the protective order and request a hearing, and shall give at least forty-eight hours notice to all parties and to the district attorney for the county in which the alleged abuse or neglect occurred. The district attorney shall have standing to object to the protective order. C. After the hearing, the court may issue a protective order, if issuance of the order will reasonably assist in the delivery of diagnostic and therapeutic services to the respondent and the respondent is otherwise likely to refuse to make statements on the basis of his privilege against self-incrimination. History: 1978 Comp., § 32A-4-12, enacted by Laws 1993, ch. 77, § 106. 32A-4-13. Contempt power. A. At any stage of a proceeding under the Abuse and Neglect Act, the court shall have the power and authority to issue orders to compel the appearance of witnesses, the giving of testimony and production of evidence by witnesses, including any party. Production of evidence includes an order to a respondent to undergo a psychological diagnostic evaluation and treatment. B. Failure or refusal to obey the court's order may be punished by the court as contempt. A claim that giving testimony or producing evidence might tend to incriminate the person who is the subject of the order shall not excuse the person from complying with the court's order. C. The children's court attorney shall make application to the court to compel compliance with the orders of the court. History: 1978 Comp., § 32A-4-13, enacted by Laws 1993, ch. 77, § 107. ANNOTATIONS Contempt power in New Mexico. — Courts have inherent power and statutory authority to impose remedial or punitive sanctions for contempt of court. Contempts of court can be civil or criminal, and the major factor in determining how to classify a particular contempt is the purpose for which the power is exercised. Criminal contempt proceedings are instituted to punish completed acts of disobedience that have threatened the authority and dignity of the court. Civil contempt is remedial in nature and serves to preserve and enforce the rights of private parties to suits and to compel obedience to the orders of the court. State v. ex rel. CYFD v. Mercer-Smith, 2019- NMSC-005, rev'g 2015-NMCA-093, 356 P.3d 26. Courts must exercise contempt power consistent with the purposes of civil or criminal contempt. — Consistent with the various purposes for which a court may exercise its contempt power, a court may impose punitive sanctions for criminal contempt, remedial sanctions for civil contempt, or both. The court may not, however, impose penalties on a person who has not been afforded the protections of the criminal law. State v. ex rel. CYFD v. Mercer-Smith, 2019-NMSC-005, rev'g 2015-NMCA-093, 356 P.3d 26. District court did not exercise its contempt power consistent with purpose of civil contempt. — In a civil contempt proceeding, where the district court found the children, youth and families department (CYFD) in contempt of court for attempting to circumvent the court's order in placing two children that had been adjudicated to be abused, the acts of which effectively eliminated the likelihood of reconciliation between the children and their parents, the district court's order holding CYFD in contempt for violating the placement decision and imposing compensatory damages and costs was an abuse of discretion, because the district court had previously found that CYFD had no duty to support reconciliation and the court had refused the parents' proposed finding that the placements might undermine future prospects for reconciliation between the children and their parents. Because efforts toward reunification and reconciliation were no longer being required by the district court, and were therefore not a goal of any treatment plan, the purpose for which the district court exercised its contempt power was not remedial in nature and therefore cannot be upheld as a valid exercise of civil contempt power. State v. ex rel. CYFD v. Mercer-Smith, 2019-NMSC-005, rev'g 2015-NMCA-093, 356 P.3d 26. District courts have inherent power to sanction for contempt. — The district court has inherent power to sanction for contempt. The contempt power is necessary to allow courts to regulate their docket, promote judicial efficiency, and deter frivolous filings, and it has long been recognized that a court must be able to command the obedience of litigants and their attorneys if it is to perform its judicial functions. State ex rel. Children, Youth & Families Dep’t. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015- NMCERT-008. The district court properly invoked its inherent power to sanction for contempt where the children, youth and families department (CYFD), in an abuse and neglect case involving foster placement of children, engaged in activity and took direct actions that were in contempt of the district court’s placement order and where parents suffered injuries caused by CYFD’s contemptuous conduct, including past and future emotional distress, loss of enjoyment of life, and psychological expenses. State ex rel. Children, Youth & Families Dep’t. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008. Civil contempt distinguished from criminal contempt. — Contempts procedurally are either civil or criminal in nature. Where the primary purpose is to preserve the court’s authority and to punish for disobedience of its orders, the contempt is criminal. Where the primary purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil. The elements necessary for a finding of civil contempt are (1) knowledge of the court’s order, and (2) an ability to comply. Intent is not an essential element of contempt, but because knowledge of the district court’s order is a prerequisite to contempt, the district court’s order must not be ambiguous. State ex rel. Children, Youth & Families Dep’t. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008. Sufficient evidence to support court’s finding of contemptuous conduct. — Where the children, youth and families department (CYFD) defied a placement order issued by the district court in an abuse and neglect case involving foster placement of two children (children) in the custody of CYFD, the evidence was sufficient to support the district court’s findings that CYFD engaged in activity and took direct actions that were in contempt of the placement order where evidence was presented that the placement order prohibited CYFD from placing children with their former counselors from a group home where the children were receiving treatment, because the district court was concerned that placement of the children with their former counselors created dual relationships that are forbidden by the code of ethics for counselors and therapists due to the risk of the therapists confusing their roles in children’s lives, that the limitations in the placement order issued by the district court were understood by CYFD, that CYFD nevertheless arranged for children to spend the majority of their waking hours either in school or with the former counselors, and that the amount of contact between the children and the former counselors was tantamount to placement in the counselors’ homes, thus violating the placement order. State ex rel. Children, Youth & Families Dep’t. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008. Damages for civil contempt. — Compensatory damages for civil contempt serve to make reparation to the injured party and restore the parties to the position they would have held had the court’s order been obeyed. The district court does not have discretion to deny compensatory damages if established with reasonable certainty. State ex rel. Children, Youth & Families Dep’t. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008. Where district court found that the parents of two children in the custody of the children, youth and families department satisfied their burden of proving a violation of a court order, proximate cause, and damages, the parents were entitled to judgment for recovery of those damages. State ex rel. Children, Youth & Families Dep’t. v. Mercer- Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008. Sufficient evidence to support district court’s award of damages for civil contempt. — Where the children, youth and families department (CYFD) defied a placement order issued by the district court in an abuse and neglect case involving foster placement of two children (children) in the custody of CYFD, the evidence was sufficient to support the district court’s award of damages to compensate children’s parents for damage done to their chances of reconciliation with their daughters, where the evidence established that reconciliation between the children and parents was a goal and that that there were viable prospects for reconciliation prior to the placement order, that an expert in psychology submitted a letter to the district court prior to the placement hearing, and later admitted at the damages hearing, stating that any possibility of future reconciliation with the children and their parents would be significantly lessened if they were to reside with the children’s former counselors, that CYFD nevertheless arranged for children to spend the majority of their waking hours either in school or with the former counselors, an amount of contact that was tantamount to placement in the counselors’ homes, and that the parents of children suffered injuries and other harms caused by CYFD’s contemptuous conduct, including past and future emotional distress, loss of enjoyment of life and psychological expenses. State ex rel. Children, Youth & Families Dep’t. v. Mercer-Smith, 2015-NMCA- 093, cert. granted, 2015-NMCERT-008. 32A-4-14. Change in placement. A. When the child's placement is changed, including a return to the child's home, written notice of the factual grounds supporting the change in placement shall be sent to the child's guardian ad litem or attorney, all parties, the child's CASA, the child's foster parents and the court ten days prior to the placement change, unless an emergency situation requires moving the child prior to sending notice. B. When the child, by and through the child's guardian ad litem or attorney, files a motion and requests a court hearing to contest the proposed change, the department shall not change the child's placement pending the results of the court hearing, unless an emergency requires changing the child's placement prior to the hearing. C. When a child's placement is changed without prior notice as provided for in Subsection A of this section, written notice shall be sent to the child's guardian ad litem or attorney, all parties, the child's CASA, the child's foster parents and the court within three days after the placement change. D. Written notice is not required for removal of a child from temporary emergency care, emergency foster care or respite care. The department shall provide oral notification of the removal to the child's guardian ad litem or attorney. E. Notice need not be given to the parties, other than the child, or to the court when placement is changed at the request of the child's foster parents or substitute care provider. Notice shall be given to the child's guardian ad litem or attorney. History: 1978 Comp., § 32A-4-14, enacted by Laws 1993, ch. 77, § 108; 2005, ch. 189, § 44; 2009, ch. 239, § 37. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection A, after "written notice", added "of the factual grounds supporting the change in placement" and after "guardian ad litem", added "or attorney"; in Subsection B, after "When the", added "child, by and through" and after "guardian ad litem", added "or attorney, files a motion and"; and in Subsections C and D, after "guardian ad litem", added "or attorney". Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, in Subsection E, provided that notice need not be given to the parties other than the child or to the court when placement is changed at the request of the child's foster parents, but notice shall be given to the child's guardian ad litem or attorney. 32A-4-15. Petition; authorization to file. A petition alleging neglect or abuse shall not be filed unless the children's court attorney has determined and endorsed upon the petition that the filing of the petition is in the best interests of the child. The children's court attorney shall, upon request of a person authorizing the filing of a petition, furnish legal services in connection with the authorization and preparation of the petition and the representation of the petitioner if the petitioner so requests. History: 1978 Comp., § 32A-4-15, enacted by Laws 1993, ch. 77, § 109. ANNOTATIONS Removal of an Indian child from the custody of their guardian requires a finding that active efforts designed to prevent the breakup of the Indian family have been made. — When a petition for abuse and neglect seeking removal of an Indian child from the custody of their parent or legal guardian is filed by CYFD, the district court must make findings required by the federal Indian Child Welfare Act (ICWA) at the adjudicatory hearing, including the finding that active efforts designed to prevent the breakup of the Indian family have been made. The ICWA regulations and the legislative history of ICWA require remedial active efforts be made prior to initiating a placement and must be designed to prevent having to take a child into state custody. The definition of active efforts focuses on the timeliness of those efforts, provides that they be directed to maintaining the Indian child with their family, or, if a separation has already occurred, reuniting the child with their family, and specifies that efforts be conducted, to the maximum extent possible, in partnership with the Indian child's tribe and extended family. Active assistance in utilizing, accessing, and overcoming barriers to services is required regardless of the stage of the proceedings, and to be effective, remedial efforts must be undertaken promptly upon referral to the agency for abuse or neglect. State ex rel. CYFD v. Eric E., 2024-NMCA-026. The district court's finding that the active efforts required by the federal Indian Child Welfare Act were made by CYFD prior to taking the Indian child into involuntary state custody was not supported by substantial evidence. — The district court's finding that CYFD made the active efforts required by the federal Indian Child Welfare Act prior to taking the Indian child into involuntary state custody was not supported by substantial evidence where the record established that CYFD's efforts were not tailored to the goal of restoring the child to his parents, to his extended Indian family, or to his tribal community; CYFD failed to actively search for the child's father and prepare him to reunite with the child, it failed to contact and obtain assistance from the child's tribe, it failed to provide any assistance to the child's guardians in freeing the child for return to a parent or placement with an extended family member, and it offered no evidence to show that it had made active efforts to place the child in the treatment foster care recommended by the residential treatment center where the child had been placed. State ex rel. CYFD v. Eric E., 2024-NMCA-026. 32A-4-16. Ex-parte custody orders. A. At the time a petition is filed or any time thereafter, the children's court or the district court may issue an ex-parte custody order upon a sworn written statement of facts showing probable cause exists to believe that the child is abused or neglected and that custody under the criteria set forth in Section 32-4-16 [32A-4-18] NMSA 1978 is necessary. B. The ex-parte custody order shall be served on the respondent by a person authorized to serve arrest warrants and shall direct the officer to take custody of the child and deliver him to a place designated by the court. C. The Rules of Evidence do not apply to the issuance of an ex-parte custody order. History: 1978 Comp., § 32A-4-16, enacted by Laws 1993, ch. 77, § 110. ANNOTATIONS Cross references. — For the applicability of the Rules of Evidence, see Rule 11-1101 NMRA. 32A-4-17. Summons; content. In addition to the requirements set forth in Section 32-1-11 [32A-1-12] NMSA 1978, in abuse and neglect proceedings, the summons shall clearly state that the proceeding could ultimately result in termination of the respondents' parental rights. History: 1978 Comp., § 32A-4-17, enacted by Laws 1993, ch. 77, § 111. 32A-4-17.1. Notice to grandparents and relatives. Within thirty days after a child is taken into custody by law enforcement, or when the department files a petition seeking legal custody of the child, whichever occurs first, the department shall exercise due diligence and make reasonable efforts to identify and provide notice to all grandparents; all parents of a sibling of the child, when the parent has legal custody of the sibling; and other adult relatives of the child, including adult relatives suggested by the parents, unless such notice would be contrary to the best interests of the child due to family or domestic violence. The notice shall: A. specify that the child has been or is being removed from the custody of the parent or parents of the child; B. explain the options the relative has under federal, state or other law to participate in the care and placement of the child, including any options that may be lost by failing to respond to the notice; C. describe the requirements for becoming a foster family home and the additional services and support that are available for children placed in such a home; and D. set out the dates of any currently scheduled court hearings that involve the child. History: 1978 Comp., § 32A-4-17.1, enacted by Laws 2016, ch. 54, § 3. ANNOTATIONS Effective dates. — Laws 2016, ch. 54 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2016, 90 days after the adjournment of the legislature. 32A-4-18. Custody hearings; time limitations; notice; probable cause. A. When a child alleged to be neglected or abused has been placed in the legal custody of the department or the department has petitioned the court for temporary custody, a custody hearing shall be held within ten days from the date the petition is filed to determine if the child should remain in or be placed in the department's custody pending adjudication. Upon written request of the respondent, the hearing may be held earlier, but in no event shall the hearing be held sooner than two days after the date the petition was filed. B. The parent, guardian or custodian of the child alleged to be abused or neglected shall be given reasonable notice of the time and place of the custody hearing. C. At the custody hearing, the court shall return legal custody of the child to the child's parent, guardian or custodian unless probable cause exists to believe that: (1) the child is suffering from an illness or injury, and the parent, guardian or custodian is not providing adequate care for the child; (2) the child is in immediate danger from the child's surroundings and removal from those surroundings is necessary for the child's safety or well-being; (3) the child will be subject to injury by others if not placed in the custody of the department; (4) there has been an abandonment of the child by the child's parent, guardian or custodian; or (5) the parent, guardian or custodian is not able or willing to provide adequate supervision and care for the child. D. At the conclusion of the custody hearing, if the court determines that probable cause exists pursuant to Subsection C of this section, the court may: (1) return legal custody of the child to the child's parent, guardian or custodian upon such conditions as will reasonably ensure the safety and well-being of the child, including protective supervision or maintenance at home by the department or participation in programs or services aimed at addressing the underlying causative factors that impact the safety or well-being of the child; or (2) award legal custody of the child to the department. E. Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child's health and safety. When the department determines that the home of an adult relative of the child meets all relevant child protection and licensing standards and placement in the home would be in the best interest of the child, the department shall give a preference to placement of the child in that home. The department shall make reasonable efforts to conduct home studies on appropriate relatives who express an interest in providing placement for the child. F. At the conclusion of the custody hearing, if the court determines that probable cause does not exist pursuant to Subsection C of this section, the court shall: (1) retain jurisdiction and, unless the court permits otherwise, order that the respondent and child remain in the jurisdiction of the court pending the adjudication; (2) return legal custody of the child to the child's parent, guardian or custodian with conditions to provide for the safety and well-being of the child; and (3) order that the child's parent, guardian or custodian allow the child necessary contact with the child's guardian ad litem or attorney. G. At the conclusion of the custody hearing, the court may order the respondent or the child alleged to be neglected or abused, or both, to undergo appropriate diagnostic examinations or evaluations. If the court determines that probable cause does not exist, the court may order the respondent or the child alleged to be neglected or abused, or both, to undergo appropriate diagnostic examinations or evaluations as necessary to protect the child's best interests, based upon the allegations in the petition and the evidence presented at the custody hearing. Copies of any diagnostic or evaluation reports ordered by the court shall be provided to the parties at least five days before the adjudicatory hearing is scheduled. The reports shall not be sent to the court. H. The Rules of Evidence shall not apply to custody hearings. I. Notwithstanding any other provision of law, a party aggrieved by an order entered pursuant to this section shall be permitted to file an immediate appeal as a matter of right. If the order appealed from grants the legal custody of the child to or withholds it from one or more of the parties to the appeal, the appeal shall be expedited and shall be heard at the earliest practicable time. While an appeal pursuant to this section is pending, the court shall have jurisdiction to take further action in the case pursuant to Subsection B of Section 32A-1-17 NMSA 1978. History: 1978 Comp., § 32A-4-18, enacted by Laws 1993, ch. 77, § 112; 1999, ch. 77, § 5; 2005, ch. 189, § 45; 2009, ch. 239, § 38; 2014, ch. 69, § 1; 2016, ch. 54, § 4; 2019, ch. 137, § 3; 2022, ch. 41, § 49. ANNOTATIONS Cross references. — For the applicability of the Rules of Evidence, see Rule 11-1101 NMRA. For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901, et seq. The 2022 amendment, effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act; and deleted Subsection J. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2019 amendment, effective July 1, 2020, authorized the district court, upon a finding that probable cause exists to believe that abuse or neglect has occurred, to order participation in programs or services aimed at addressing the underlying causes of the abuse or neglect; and in Subsection D, Paragraph D(1), after "supervision", added "or maintenance at home", and after "the department", added "or participation in programs or services aimed at addressing the underlying causative factors that impact the safety or well-being of the child". The 2016 amendment, effective May 18, 2016, established a preference for placement of a child in the home of an adult relative; in Subsection E, after the first sentence, added the remainder of the subsection. The 2014 amendment, effective July 1, 2014, provided for immediate appeals as of right from a custody order; and added Subsection I. The 2009 amendment, effective July 1, 2009, added Subsection F; in Subsection G, added the second sentence; and added Subsection I. The 2005 amendment, effective June 17, 2005, in Subsection A, changed "taken into custody" to "placed in the legal custody"; in Subsection C, changed "release of the child" to "return legal custody of the child"; and in Subsection D, provided that if the court determines that probable cause exists pursuant to Subsection C, the court may return legal custody of the child to his parent, guardian or custodian upon conditions that include protective supervision by the department or award legal custody to the department and deletes the former provision concerning visitation rights. The 1999 amendment, effective July 1, 1999, added the undesignated paragraph following Subsection D(2). 32A-4-19. Adjudicatory hearings; time limitations. A. The adjudicatory hearing in a neglect or abuse proceeding shall be commenced within sixty days after the date of service on the respondent. B. Prior to the adjudicatory hearing, all parties to the hearing shall attend a mandatory meeting and attempt to settle issues attendant to the adjudicatory hearing and develop a proposed treatment plan that serves the child's best interest. C. The children's court attorney shall represent the state at the adjudicatory hearing. D. When the adjudicatory hearing on any petition is not commenced within the time period specified in Subsection A of this section or within the period of any extension granted, the petition shall be dismissed with prejudice. History: 1978 Comp., § 32A-4-19, enacted by Laws 1993, ch. 77, § 113; 1997, ch. 34, § 3; 2009, ch. 239, § 39. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection A, after "sixty days after the", deleted "latest of the following dates:"; deleted Paragraphs (1) through (3) of Subsection A, which listed: the date the petition is served on the respondent; the date the trial court orders a mistrial or a new trial; and the date a mandate in an appeal or order disposing of the appeal is filed; and added "date of service on the respondent". Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 1997 amendment, effective July 1, 1997, substituted "sixty days" for "ninety days" in the introductory paragraph of Subsection A, added Subsection B, and redesignated former Subsections B and C as Subsections C and D. Rule 10-343 NMRA controls dismissal for failure to meet time limitations. — Section 32A-4-19 NMSA 1978 is procedural. Rule 10-343 NMRA, which allows the court discretion to dismiss for the failure to meet time limit requirements, prevails over Section 32A-4-19 NMSA 1978. State ex rel. Children, Youth & Families Dep't v. Arthur C., 2011- NMCA-022, 149 N.M. 472, 251 P.3d 729. Failure to timely adjudicate petition. — Where the children, youth and families department (CYFD) filed an abuse and neglect petition alleging that mother was homeless and had left child in father’s care, that mother tested positive for certain controlled substances, and that the conditions in father’s home were dangerous, and where there was reason to know that the child was an Indian child as set forth in the federal Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963, the district court did not err in granting parents’ motion to dismiss the case with prejudice for failure to timely commence the adjudicatory hearing or in denying CYFD’s motion for an extension of time, because this section mandates that adjudicatory hearings be commenced within sixty days from the date parents are served with an abuse and neglect petition, and the oral motion to dismiss occurred more than 100 days after parents were served; Rule 10- 343 NMRA does not allow the district court to consider a motion for an extension after the ten-day grace period has expired. State ex rel. CYFD v. Tanisha G., 2019-NMCA- 067. Violation of federal Indian Child Welfare Act of 1978. — Where the parent, who was a member of the Navajo nation, consented at a temporary custody hearing to the temporary custody of the child by CYFD; in the temporary custody order, the parent stipulated to a finding that clear and convincing evidence existed to believe that continued custody of the child by the parent or a guardian was likely to result in serious emotional or physical damage to the child; the parent contested CYFD’s permanent custody of the child at the adjudicatory hearing; CYFD did not put on any evidence to establish that continued custody of the child by the parent or an Indian custodian was likely to result in serious emotional or physical damage to the child as required by the federal Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2006), at either the temporary custody hearing or at the adjudicatory hearing, the adjudication of neglect was not based on sufficient evidence. State of N.M. ex rel. Children, Youth & Families Dep't v. Marlene C., 2009-NMCA-058, 146 N.M. 588, 212 P.3d 1142, aff'd, State ex rel. Children, Youth & Families Dep't v. Marlene C., 2011-NMSC-005, 149 N.M. 315, 248 P.3d 863. Findings required at adjudication stage. — In a contested adjudication to which ICWA [Indian Child Welfare Act] applies, the district court must always make the findings of fact required under § 1912(d) and (e) of ICWA at the adjudication stage, founded either on evidence of record or admissions supported by a factual basis. State ex rel. Children, Youth & Families Dep't v. Marlene C., 2011-NMSC-005, 149 N.M. 315, 248 P.3d 863. Witnesses qualified as experts for purposes of the federal Indian Child Welfare Act. — A qualified expert witness for Indian Child Welfare Act purposes must be qualified to testify regarding serious damage to the child, but need not necessarily be qualified to testify about cultural standards of the particular tribe if such expertise is irrelevant to the particular circumstances at issue in the proceeding. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted. Standard of review to be applied to a district court's decision to qualify an expert for Indian Child Welfare Act purposes. — The appropriate standard of review to be applied to a district court's decision to qualify and admit the testimony of a qualified expert witness within the meaning of the federal Indian Child Welfare Act (ICWA) is an abuse of discretion standard. ICWA experts are to be evaluated in the same manner as other experts under a given jurisdiction's evidentiary rules. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted. The district court abused its discretion in qualifying Indian Child Welfare Act expert witness. — In an abuse and neglect case, where the district court adjudicated child as abused and neglected and ordered that child remain in the custody of the children, youth and families department (CYFD) under the care of child's aunt, and where parents claimed that CYFD failed to present a qualified expert witness during the adjudicatory hearing and that the district court committed reversible error by allowing CYFD's proffered expert on the federal Indian Child Welfare Act to testify without the necessary foundation, the district court abused its discretion in qualifying CYFD's witness as an expert for purposes of the ICWA, because although the witness was qualified to testify with respect to the prevailing social and cultural standards of child's tribe, the witness was not qualified to opine as to whether child's continued custody by parents was likely to result in serious emotional or physical damage to the child. The federal guidelines require ICWA experts to have expertise beyond the normal social worker qualifications and the record does not contain a sufficient foundation establishing that CYFD's witness had the requisite expertise in the areas of substance abuse, domestic violence, self-harm, suicidal ideation, and household hazards, which were the allegations in this case, to opine as to a causal relationship between these particular conditions and the likelihood that continued custody of child will result in serious emotional or physical damage to child. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted. Adjudication of abuse and neglect was error. — In an abuse and neglect case, where the district court adjudicated child as abused and neglected and ordered that child remain in the custody of the children, youth and families department (CYFD) under the care of child's aunt, and where parents claimed that CYFD failed to present a qualified expert witness during the adjudicatory hearing and that the district court committed reversible error by allowing CYFD's proffered expert on the federal Indian Child Welfare Act to testify without the necessary foundation, the district court erred in adjudicating child as abused and neglected where the court applied the wrong legal standard in qualifying CYFD's expert witness and where there was insufficient foundational evidence in the record to uphold the district court's acceptance of CYFD's proffered expert as qualified to issue an opinion as to whether child's continued custody by parents was likely to result in serious emotional or physical damage. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted. Law reviews. — For comment, "Incorporating the Law of Criminal Procedure in Termination of Parental Rights Cases: Giving Children a Voice Through Matthews v. Eldridge", see 32 N.M. L. Rev. 143 (2006). 32A-4-20. Conduct of hearings; findings; dismissal; dispositional matters; penalty. A. The proceedings shall be recorded by stenographic notes or by electronic, mechanical or other appropriate means. B. All abuse and neglect hearings shall be closed to the general public. C. Only the parties, their counsel, witnesses and other persons approved by the court may be present at a closed hearing. The foster parent, preadoptive parent or relative providing care for the child shall be given notice and an opportunity to be heard at the dispositional phase. Those other persons the court finds to have a proper interest in the case or in the work of the court may be admitted by the court to closed hearings on the condition that they refrain from divulging any information that would identify the child or family involved in the proceedings. D. Accredited representatives of the news media shall be allowed to be present at closed hearings, subject to the condition that they refrain from divulging information that would identify any child involved in the proceedings or the parent, guardian or custodian of that child and subject to enabling regulations as the court finds necessary for the maintenance of order and decorum and for the furtherance of the purposes of the Children's Code. A child who is the subject of an abuse and neglect proceeding and is present at a hearing may object to the presence of the media. The court may exclude the media if it finds that the presence of the media is contrary to the best interests of the child. E. If the court finds that it is in the best interest of a child under fourteen years of age, the child may be excluded from a hearing under the Abuse and Neglect Act. A child fourteen years of age or older may be excluded from a hearing only if the court makes a finding that there is a compelling reason to exclude the child and states the factual basis for the finding. F. Those persons or parties granted admission to a closed hearing who intentionally divulge information in violation of this section are guilty of a petty misdemeanor. G. The court shall determine if the allegations of the petition are admitted or denied. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court, after hearing all of the evidence bearing on the allegations of neglect or abuse, shall make and record its findings on whether the child is a neglected child, an abused child or both. If the petition alleges that the parent, guardian or custodian has subjected the child to aggravated circumstances, then the court shall also make and record its findings on whether the aggravated circumstances have been proven. H. If the court finds on the basis of a valid admission of the allegations of the petition or on the basis of clear and convincing evidence, competent, material and relevant in nature, that the child is neglected or abused, the court shall enter an order finding that the child is neglected or abused and may proceed immediately or at a postponed hearing to make disposition of the case. If the court does not find that the child is neglected or abused, the court shall dismiss the petition and may refer the family to the department for appropriate services. I. A party aggrieved by an order entered pursuant to Subsection H of this section may file an immediate appeal to the court of appeals. J. In that part of the hearings held under the Children's Code on dispositional issues, all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value even though not competent had it been offered during the part of the hearings on adjudicatory issues. K. On the court's motion or that of a party, the court may continue the hearing on the petition for a period not to exceed thirty days to receive reports and other evidence in connection with disposition. The court shall continue the hearing pending the receipt of the predisposition study and report if that document has not been prepared and received. During any continuances under this subsection, the court shall make an appropriate order for legal custody. History: 1978 Comp., § 32A-4-20, enacted by Laws 1993, ch. 77, § 114; 1997, ch. 34, § 4; 1999, ch. 77, § 6; 2005, ch. 189, § 46; 2009, ch. 239, § 40; 2014, ch. 69, § 2. ANNOTATIONS The 2014 amendment, effective July 1, 2014, provided for immediate appeals as of right from an order of neglect or abuse; in Subsection H, in the first sentence, after "neglected or abused, the court", added "shall enter an order finding that the child is neglected or abused and"; and added Subsection I. The 2009 amendment, effective July 1, 2009, in Subsection D, added the last sentence. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, in Subsection E, provided that a child under fourteen years of age may be excluded from a hearing and that a child fourteen years of age or older may be excluded from a hearing only if there is a compelling reason. The 1999 amendment, effective July 1, 1999, added the second sentence in Subsection C and the last sentence in Subsection G. The 1997 amendment, effective July 1, 1997, substituted "period not to exceed thirty days" for "reasonable time" in the first sentence in Subsection J. Standing to contest dismissal of petition against co-respondent. — A co- respondent does not have standing to contest the dismissal of an abuse and neglect petition against the other co-respondent. State ex rel. Children, Youth & Families Dep't v. Jeremy N., 2008-NMCA-145, 145 N.M. 198, 195 P.3d 365, cert. denied, 2008- NMCERT-009, 145 N.M. 257, 196 P.3d 488. Where the main issue at the adjudicatory proceeding is the cause of the child’s injuries and where there is an increased risk of an erroneous deprivation of the parent’s interest without the appointment of an expert to determine if there is an alternative cause of the child’s injuries, an indigent parent is entitled to the appointment of an expert witness at the state’s expense. State ex. rel., Children, Youth & Families Dep't v. Kathleen D.C., 2007-NMSC-018, 141 N.M. 535, 157 P.3d 714. Qualified expert witness testimony under the federal Indian Child Welfare Act. — The federal Indian Child Welfare Act (ICWA) requires, as a procedural safeguard for removal of an Indian child from an Indian family, qualified expert witness (QEW) testimony covering two areas: (1) the likelihood of continued custody by the parent or Indian custodian resulting in serious emotional or physical damage to the child (serious damage) and (2) the prevailing social and cultural standards of the Indian child’s tribe (cultural standards). Courts must independently analyze qualification in the two categories of required QEW testimony under the ICWA, and the testimony can come from one or multiple experts. State ex rel. CYFD v. Douglas B., 2023-NMSC-028, aff’g 2022-NMCA-028, 511 P.3d 357. The district court did not lay the proper foundation to qualify witness as an expert to testify regarding serious damage to Indian child in abuse and neglect proceedings. — In an abuse and neglect case where the Children, Youth and Families Department (CYFD) received a referral after a Indian child revealed to a source that she was self-harming and wanted to kill herself, and where CYFD took custody of the child and placed her with her paternal aunt, and where, in an adjudicatory hearing to determine whether the child was abused or neglected and whether to keep the child in CYFD custody under the child’s aunt’s care, the district court qualified CYFD’s witness as a qualified expert witness (QEW) pursuant to the federal Indian Child Welfare Act, but did not clearly distinguish the witness’s qualifications to testify about each of the two categories of QEW testimony required by the ICWA, and where the district court ordered continuing custody by CYFD and that the return of the child to her parents was likely to result in serious harm to the child and was not in the child’s best interest, finding that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that such efforts had been unsuccessful, the district court erred in its abuse and neglect adjudication, because serious damage to the child and cultural standards of the Indian child’s tribe are subjects requiring QEW testimony, and qualifications of an expert on these subjects must be analyzed independently, and in this case, the district court did not lay the proper foundation required by Rule 11-702 NMRA to qualify CYFD’s witness to testify about serious damage to the child and therefore the court abused its discretion in allowing the witnesses to testify on this subject. State ex rel. CYFD v. Douglas B., 2023-NMSC-028, aff’g 2022-NMCA-028, 511 P.3d 357. Witnesses qualified as experts for purposes of the federal Indian Child Welfare Act. — A qualified expert witness for Indian Child Welfare Act purposes must be qualified to testify regarding serious damage to the child, but need not necessarily be qualified to testify about cultural standards of the particular tribe if such expertise is irrelevant to the particular circumstances at issue in the proceeding. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted. Standard of review to be applied to a district court's decision to qualify an expert for Indian Child Welfare Act purposes. — The appropriate standard of review to be applied to a district court's decision to qualify and admit the testimony of a qualified expert witness within the meaning of the federal Indian Child Welfare Act (ICWA) is an abuse of discretion standard. ICWA experts are to be evaluated in the same manner as other experts under a given jurisdiction's evidentiary rules. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted. The district court abused its discretion in qualifying Indian Child Welfare Act expert witness. — In an abuse and neglect case, where the district court adjudicated child as abused and neglected and ordered that child remain in the custody of the children, youth and families department (CYFD) under the care of child's aunt, and where parents claimed that CYFD failed to present a qualified expert witness during the adjudicatory hearing and that the district court committed reversible error by allowing CYFD's proffered expert on the federal Indian Child Welfare Act to testify without the necessary foundation, the district court abused its discretion in qualifying CYFD's witness as an expert for purposes of the ICWA, because although the witness was qualified to testify with respect to the prevailing social and cultural standards of child's tribe, the witness was not qualified to opine as to whether child's continued custody by parents was likely to result in serious emotional or physical damage to the child. The federal guidelines require ICWA experts to have expertise beyond the normal social worker qualifications and the record does not contain a sufficient foundation establishing that CYFD's witness had the requisite expertise in the areas of substance abuse, domestic violence, self-harm, suicidal ideation, and household hazards, which were the allegations in this case, to opine as to a causal relationship between these particular conditions and the likelihood that continued custody of child will result in serious emotional or physical damage to child. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted. Adjudication of abuse and neglect was error. — In an abuse and neglect case, where the district court adjudicated child as abused and neglected and ordered that child remain in the custody of the children, youth and families department (CYFD) under the care of child's aunt, and where parents claimed that CYFD failed to present a qualified expert witness during the adjudicatory hearing and that the district court committed reversible error by allowing CYFD's proffered expert on the federal Indian Child Welfare Act to testify without the necessary foundation, the district court erred in adjudicating child as abused and neglected where the court applied the wrong legal standard in qualifying CYFD's expert witness and where there was insufficient foundational evidence in the record to uphold the district court's acceptance of CYFD's proffered expert as qualified to issue an opinion as to whether child's continued custody by parents was likely to result in serious emotional or physical damage. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted. Departmental custody continued until final determination made. — In a proceeding on an abuse and neglect petition filed by the children, youth and families department, the trial court had authority to continue custody of the children in the Department until determination of proper placement, and the Children's Court had authority under Subsection J to make necessary findings and conclusions with regard to the father's fitness to be a legal custodian. State ex rel. Children, Youth & Families Dep't v. A.H., 1997-NMCA-118, 124 N.M. 244, 947 P.2d 1064. Authority of court to exclude media. — Even though the conditioning of media access on a requirement that the press refrain from divulging information that would identify a child, parent, guardian, or custodian, could not be met in a highly publicized child abuse and neglect case, the children's court was within its discretion under Subsection D to decide whether to allow the media to attend the proceedings. Albuquerque Journal v. Jewell, 2001-NMSC-005, 130 N.M. 64, 17 P.3d 437. Hearsay statements. — Admission of child's hearsay statements did not violate parents' constitutional rights to due process at the adjudicatory hearing where parents received proper notice of department's intent to use the child's statements, they were each represented by able attorneys who argued vigorously on their behalf and carefully cross-examined department's witnesses about the reliability and credibility of the child's statements, and a guardian ad litem had been appointed for the child. State ex rel. Children, Youth & Families Dept. v. Frank G., 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, aff'd, 2006-NMSC-019, 139 N.M. 459, 134 P.3d 746. Final appealable order. — Abuse and neglect adjudication is a final, appealable order. State ex rel. Children, Youth & Families Dept. v. Frank G., 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, aff'd, 2006-NMSC-019, 139 N.M. 459, 134 P.3d 746. Jurisdiction pending appeal. — While appeal of abuse and neglect adjudication is pending, the children's court has jurisdiction to take further action in the case. State ex rel. Children, Youth & Families Dept. v. Frank G., 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, aff'd, 2006-NMSC-019, 139 N.M. 459, 134 P.3d 746. Doctrine of claim preclusion inapplicable to non-adversarial administrative child abuse investigation. — Where plaintiff challenged, on res judicata grounds, the children, youth and families department’s (CYFD) authority to conduct a child protective services investigation and to issue investigative decisions against him after agreeing to dismiss plaintiff from abuse and neglect proceedings with prejudice, the doctrine of claim preclusion did not apply to the substantiation investigation, which is a non- adversarial administrative investigation conducted by a CYFD employee, because it would have been contrary to law for CYFD to carry out its non-adversarial substantiation investigation and documentation requirements during an adversarial proceeding in children’s court. State ex rel. CYFD v. Scott C., 2016-NMCA-012, cert. denied, 2016- NMCERT-001. 32A-4-21. Neglect or abuse predisposition studies, reports and examinations; support services. A. Prior to holding a dispositional hearing, the court shall direct that a predisposition study and report be submitted in writing to the court by the department. B. The predisposition study required pursuant to Subsection A of this section shall contain the following information: (1) a statement of the specific reasons for intervention by the department or for placing the child in the department's custody and a statement of the parent's ability to care for the child in the parent's home without causing harm to the child; (2) a statement of how an intervention plan is designed to achieve placement of the child in the least restrictive setting available, consistent with the best interests and special needs of the child, including a statement of the likely harm the child may suffer as a result of being removed from the parent's home, including emotional harm that may result due to separation from the child's parents, and a statement of how the intervention plan is designed to place the child in close proximity to the parent's home without causing harm to the child due to separation from parents, siblings or any other person who may significantly affect the child's best interest; (3) the wishes of the child as to the child's custodian; (4) a statement of the efforts the department has made to identify and locate all grandparents and other relatives and to conduct home studies on any appropriate relative expressing an interest in providing care for the child, and a statement as to whether the child has a family member who, subsequent to study by the department, is determined to be qualified to care for the child; (5) a description of services offered to the child, the child's family and the child's foster care family, which, if appropriate and available, may include families first services provided pursuant to the Families First Act [32A-31-1 to 32A-31-4 NMSA 1978], as well as referrals to income support or other services or programs, and a summary of reasonable efforts made to prevent removal of the child from the child's family or reasonable efforts made to reunite the child with the child's family; (6) a description of the home or facility in which the child is placed and the appropriateness of the child's placement; (7) the results of any diagnostic examination or evaluation ordered at the custody hearing; (8) a statement of the child's medical and educational background; (9) a case plan that sets forth steps to ensure that the child's physical, medical, cultural, psychological and educational needs are met and that sets forth services to be provided to the child and the child's parents to facilitate permanent placement of the child in the parent's home; (10) for children sixteen years of age and older, a plan for developing the specific skills the child requires for successful transition into independent living as an adult, regardless of whether the child is returned to the child's parent's home; (11) a case plan that sets forth steps to ensure that the child's educational needs are met and, for a child fourteen years of age or older, a case plan that specifically sets forth the child's educational and post-secondary goals; and (12) a description of the child's foster care placement and whether it is appropriate in terms of the educational setting and proximity to the school the child was enrolled in at the time of the placement, including plans for travel for the child to remain in the school in which the child was enrolled at the time of placement, if reasonable and in the child's best interest. C. A copy of the predisposition report shall be provided by the department to counsel for all parties five days before the dispositional hearing. D. If the child is an adjudicated abused child, any temporary custody orders shall remain in effect until the court has received and considered the predispositional study at the dispositional hearing. History: 1978 Comp., § 32A-4-21, enacted by Laws 1993, ch. 77, § 115; 1997, ch. 34, § 5; 2009, ch. 239, § 41; 2016, ch. 54, § 5; 2022, ch. 41, § 50; 2025, ch. 156, § 10. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act, see 25 U.S.C. § 1901. The 2025 amendment, effective June 20, 2025, added certain items of information that may be included in a predisposition study; in Subsection B, in Paragraph B(5), after "child's foster care family", added "which, if appropriate and available, may include families first services provided pursuant to the Families First Act, as well as referrals to income support or other services or programs". The 2022 amendment, effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act; and in Subsection B, deleted former Paragraph B(9) and redesignated former Paragraphs B(10) through B(13) as Paragraphs B(9) through B(12), respectively. The 2016 amendment, effective May 18, 2016, amended the required contents of predisposition studies; in Subsection B, Paragraph (4), added "a statement of the efforts the department has made to identify and locate all grandparents and other relatives and to conduct home studies on any appropriate relative expressing an interest in providing care for the child, and a statement as to", and, in Paragraphs (9), (10) and (12), deleted "treatment" and added "case". The 2009 amendment, effective July 1, 2009, added Paragraphs (12) and (13) of Subsection B. The 1997 amendment, effective July 1, 1997, substituted "report be submitted" for "report be made" in Subsection A and rewrote Subsection B. 32A-4-22. Disposition of adjudicated abused or neglected child. A. If not held in conjunction with the adjudicatory hearing, the dispositional hearing shall be commenced within thirty days after the conclusion of the adjudicatory hearing. At the conclusion of the dispositional hearing, the court shall make and include in the dispositional judgment its findings on the following: (1) the interaction and interrelationship of the child with the child's parent, siblings and any other person who may significantly affect the child's best interest; (2) the child's adjustment to the child's home, school and community; (3) the mental and physical health of all individuals involved; (4) the wishes of the child as to the child's placement; (5) the wishes of the child's parent, guardian or custodian as to the child's custody; (6) whether reasonable efforts have been made by the department to identify, locate and give notice to all grandparents and other relatives and to conduct home studies on any appropriate relative who expresses an interest in providing care for the child. If the court finds that reasonable efforts in these areas have not been made, the court may make supplemental orders as necessary and may reconsider the matter at the initial judicial review and subsequent periodic review hearings; (7) whether consideration has been given to the child's familial identity and connections; (8) whether there exists a relative of the child or other individual who, after study by the department, is found to be qualified to receive and care for the child; (9) the availability of services recommended in the case plan prepared as a part of the predisposition study in accordance with the provisions of Section 32A-4-21 NMSA 1978; (10) the ability of the parent to care for the child in the home so that no harm will result to the child; (11) whether reasonable efforts were made by the department to prevent removal of the child from the home prior to placement in substitute care and whether reasonable efforts were made to attempt reunification of the child with the natural parent; and (12) whether reasonable efforts were made by the department to place siblings in custody together, unless such joint placement would be contrary to the safety or well- being of any of the siblings in custody, and whether any siblings not jointly placed have been provided reasonable visitation or other ongoing interaction, unless visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings. B. If a child is found to be neglected or abused, the court may enter its judgment making any of the following dispositions to protect the welfare of the child: (1) permit the child to remain with the child's parent, guardian or custodian, subject to those conditions and limitations the court may prescribe; (2) place the child under protective supervision of the department; or (3) transfer legal custody of the child to one of the following: (a) the noncustodial parent, if it is found to be in the child's best interest; or (b) the department. C. If a child is found to be neglected or abused, in its dispositional judgment the court shall also order the department to implement and the child's parent, guardian or custodian to cooperate with any case plan approved by the court. Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child's health and safety. The court may determine that reasonable efforts are not required to be made when the court finds that: (1) the efforts would be futile; or (2) the parent, guardian or custodian has subjected the child to aggravated circumstances. D. Any parent, guardian or custodian of a child who is placed in the legal custody of the department or other person pursuant to Subsection B of this section shall have reasonable rights of visitation with the child as determined by the court, unless the court finds that the best interests of the child preclude any visitation. E. The court may order reasonable visitation between a child placed in the custody of the department and the child's siblings or any other person who may significantly affect the child's best interest, if the court finds the visitation to be in the child's best interest. F. Unless a child found to be neglected or abused is also found to be delinquent, the child shall not be confined in an institution established for the long-term care and rehabilitation of delinquent children. G. When the court vests legal custody in an agency, institution or department, the court shall transmit with the dispositional judgment copies of the clinical reports, the predisposition study and report and any other information it has pertinent to the care and treatment of the child. H. Prior to a child being placed in the custody or protective supervision of the department, the department shall be provided with reasonable oral or written notification and an opportunity to be heard. At any hearing held pursuant to this subsection, the department may appear as a party. I. When the court determines pursuant to Subsection C of this section that no reasonable efforts at reunification are required, the court shall conduct, within thirty days, a permanency hearing as described in Section 32A-4-25.1 NMSA 1978. Reasonable efforts shall be made to implement and finalize the permanency plan in a timely manner. History: 1978 Comp., § 32A-4-22, enacted by Laws 1993, ch. 77, § 116; 1997, ch. 34, § 6; 1999, ch. 77, § 7; 2005, ch. 189, § 47; 2009, ch. 239, § 42; 2016, ch. 54, § 6; 2022, ch. 41, § 51. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed provisions related to Indian children which are now covered by the Indian Family Protection Act; in Subsection A, deleted Paragraph A(13); and deleted former Subsection I and redesignated former Subjection J as Subsection I. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2016 amendment, effective May 18, 2016, required the children’s court to include in its findings on disposition whether reasonable efforts to identify and locate grandparents and other relatives have been made and whether consideration has been given to the child’s familial identity and connections; in Subsection A, added new Paragraphs (6) and (7) and redesignated the succeeding paragraphs accordingly, in Paragraph (9), after "recommended in the", deleted "treatment" and added "case", in Paragraph (11), after each occurrence of "efforts were", deleted "used" and added "made", and in Paragraph (13), after "the Indian child’s", deleted "treatment" and added "case"; in Subsection B, Paragraph (3), after "the child to", deleted "any" and added "one", in Subparagraph B(3)(a), after the semicolon, added "or", deleted Subparagraphs B(3)(b) and (c) and added new Subparagraph B(3)(b); and in Subsection C, in the introductory paragraph, after "cooperate with any", deleted "treatment" and added "case". The 2009 amendment, effective July 1, 2009, added Paragraph (10) of Subsection A The 2005 amendment, effective June 17, 2005, in Subsection A(4), changed "his custodian" to "the child’s placement"; and deleted former Subsection C(3), which provided that the court may determine that reasonable efforts are not required to preserve and reunify the family if the parental rights of the parent to a sibling of the child have been terminated involuntarily. The 1999 amendment, effective July 1, 1999, in Subsection C, added the last two sentences in the introductory language and added Paragraphs (1) through (3); and added Subsection J. The 1997 amendment, effective July 1, 1997, added the first sentence in Subsection A, substituted "32A-4-21" for "32-4-19" in Paragraph A(7) and made minor stylistic changes in Paragraph A(9) and Subparagraph B(3)(a). Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-34 NMSA 1978 have been included in the annotations to this section. Dismissal of proceedings as to one parent. — Where the district court determined that the mother had abused her child; the court dismissed abuse and neglect proceedings against the father; the court determined that placement of the child with the father was in the best interests of the child, the CYFD ceased to have the authority to maintain custody of the child and the mother did not have a liberty interest in continuing the course of her treatment program with the CYFD. State ex rel. Children, Youth & Families Dep't v. Lisa A., 2008-NMCA-087, 144 N.M. 324, 187 P.3d 189. Grandparent visitation rights. — The Abuse and Neglect Act does not grant a grandparent unfettered visitation, particularly after an adoption proceeding has occurred. State ex rel. Children, Youth & Families Dep't v. Senaida C., 2008-NMCA- 007, 143 N.M. 335, 176 P.3d 324. Standard of review. – The district court did not err when it used the arbitrary and capricious standard to review CYFD’s denial of a grandmother’s right of placement. State ex rel. Children, Youth & Families Dep't v. Senaida C., 2008-NMCA-007, 143 N.M. 335, 176 P.3d 324. Mootness. — In adjudications of neglect or abuse, because the issue of sufficiency of the evidence is capable of repetition, but may evade appellate review, the appeal of an abuse or neglect adjudication challenging the sufficiency of the evidence is not rendered moot by the district court’s dismissal of the underlying case while the adjudication is on appeal. State ex rel., Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141 N.M. 299, 154 P.3d 674. No unconstitutional delegation of legislative power. — Since the provisions relating to the meaning of "neglected child" are to be defined and applied by a court and not the department of human services, there is no unconstitutional, standardless delegation of legislative power to a state agency. State ex rel. Health & Soc. Servs. Dep't v. Natural Father, 1979-NMCA-090, 93 N.M. 222, 598 P.2d 1182. Court can make child its ward before further disposition. — District court could make a child which it found to be dependent and neglected its ward and thereafter make such disposition of the child as in its considered judgment was in the child's best interests. N.M. Dep't of Pub. Welfare v. Cromer, 1948-NMSC-046, 52 N.M. 331, 197 P.2d 902. Court not bound by any prearranged disposition by agency. — District court was not bound by any prearranged disposition of child by the department of public welfare (now health care authority department) since placement in any home was to be with consent of the court, and the welfare of the child was the court's paramount consideration. N.M. Dep't of Pub. Welfare v. Cromer, 1948-NMSC-046, 52 N.M. 331, 197 P.2d 902. Adoption proceeding may not be circumvented. — Proceedings to determine if a child is dependent and neglected may not be used to circumvent an adoption proceeding, but where the court has announced its decision denying the petition to adopt, the welfare and best interest of the child are of paramount consideration. Herman v. McIver, 1959-NMSC-055, 66 N.M. 36, 341 P.2d 457. Parental right to custody can be taken away. — The state's claim that parental rights to custody of a child in need of supervision cannot be taken away absent a showing of incompetence on the part of the parent or parents is an overly narrow reading of this statute, which makes no such requirement. In re Doe, 1975-NMCA-131, 88 N.M. 505, 542 P.2d 1195. "Reasonable efforts". — Sections 32A-4-2C, 32A-4-22C, and 32A-4-28B(2) NMSA 1978 are constitutional facially and as applied to a mother, whose parental rights were terminated without the state making reasonable efforts toward family reunification, where the mother had previously had parental rights terminated as to another child and no progress was evident in the mother's efforts to kick a 4-year drug abuse problem. State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845. Enrollment of a child as a member of an Indian tribe. — Where the department filed an abuse and neglect petition and sought to terminate the parent’s parental rights to three children, prior to trial, the department was aware that the parent and the children were eligible for enrollment in the Navajo Nation, that the parent had undertaken efforts to enroll the parent and the children, and that the parent was delayed in the enrollment process due to unique circumstances; the department made no efforts to facilitate the enrollment of the children; prior to trial, the parent requested a continuance to permit the parent to complete the enrollment process; and the district court denied the continuance on the ground that the parent and the children were not enrolled in the Navajo Nation and subsequently terminated the parent’s parental rights, the district court erred in terminating the parent’s parental rights before the department had fulfilled its obligations under Subsection I of Section 32A-4-22 NMSA 1978 to pursue the enrollment of the children in the Navajo Nation. State ex rel. CYFD v. Marsalee P., 2013-NMCA-062, 302 P.3d 761. Department’s duty to investigate whether a child in its custody is eligible for enrollment as a member of an Indian tribe. — In termination of parental rights proceeding, the children, youth and families department (CYFD) complied with the mandate of 32A-4-22(I) NMSA 1978, where CYFD attempted to obtain evidence on mother’s genealogy, had many conversations with mother to gather information on her lineage in which mother was not cooperative, requested mother’s birth certificate on numerous occasions, but mother failed to produce the document, attempted to obtain mother’s birth certificate through a state agency, unsuccessfully attempted to retrieve father’s birth certificate and certificate of Indian blood from father and paternal grandmother, contacted the vital records department of the Navajo Nation, and worked with other entities within the Navajo Nation and the southern Ute tribe to determine if children were eligible for enrollment as a member of an Indian tribe. State ex rel. CYFD v. Nathan H., 2016-NMCA-043, cert. denied. Court vested with broad discretion in placement of minors. — The court did not violate the spirit and intent of the Children's Code by placing a 16-year-old girl in the custody of a woman who had helped to rear her and had been found to be a positive influence over her where the child felt compelled to run away from her mother's household and would in all likelihood continue to refuse to live with her mother since the children's court is vested with a broad discretion in hearing and deciding matters under it. In re Doe, 1975-NMCA-131, 88 N.M. 505, 542 P.2d 1195. Effect of agency not studying qualifications of individual awarded custody. — Contentions that no agency designated by the court had made a study of the qualifications of the woman awarded custody of a 16-year-old girl in need of supervision were never raised at the probation revocation hearing, and in awarding custody the court impliedly found the woman qualified to have custody of the girl. In re Doe, 1975- NMCA-131, 88 N.M. 505, 542 P.2d 1195. Counsel of record entitled to notice of subsequent termination action. — The human services department [health care authority department] was required to serve a parent's attorney with notice of the department's action to terminate parental rights, when the attorney was representing him in a separate neglect action before the children's court. Ronald v. State ex rel. Human Servs. Dep't, 1990-NMSC-071, 110 N.M. 454, 797 P.2d 243. Adoption of child requires notice to parents. — It is impossible to declare a child to be dependent and neglected and then place the child for adoption without notice to the parents. 1959 Op. Att'y Gen. No. 59-59. District judge has no authority to sign adoption consents after declaring child dependent and neglected. 1959 Op. Att'y Gen. No. 59-59. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973). For article, "Child Welfare Under the Indian Child Welfare Act of 1978; A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980). Am. Jur. 2d, A.L.R. and C.J.S. references. — Power of court or other public agency to order medical treatment for child over parental objections not based on religious grounds, 97 A.L.R.3d 421. Validity of state statute providing for termination of parental rights, 22 A.L.R.4th 774. Attorneys' fees awards in parent-nonparent child custody case, 45 A.L.R.4th 212. Foster parent's right to immunity from foster child's negligence claims, 55 A.L.R.4th 778. Denial or restriction of visitation rights to parent charged with sexually abusing child, 1 A.L.R.5th 776. 43 C.J.S. Infants §§ 69 to 91. 32A-4-23. Disposition of a child with a mental disorder or a developmental disability in a proceeding under the Abuse and Neglect Act. A. If in a hearing, at any stage of a proceeding on a neglect or abuse petition, the evidence indicates that a child has a mental disorder or a developmental disability, the court shall adjudicate the issue of neglect or abuse under the provisions of the Children's Code. B. When a child in department custody needs involuntary placement for residential mental health or developmental disability services as a result of a mental disorder or developmental disability, the department shall petition for that child's placement pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act [32A-6A-1 to 32A-6A-30 NMSA 1978]. C. Any child in department custody who is placed for residential treatment or habilitation pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act shall remain in the legal custody of the department while in residential treatment or habilitation or until further order of the court. D. A court hearing for consideration of an involuntary placement of a child for residential treatment or habilitation, when the child is subject to the provisions of the Abuse and Neglect Act, may be heard by the court as part of the abuse or neglect proceedings or may be heard in a separate proceeding. All parties to the abuse or neglect proceedings shall be provided with notice of the involuntary placement hearing. E. A guardian ad litem appointed pursuant to the Abuse and Neglect Act shall serve as a guardian ad litem for a child for the purposes of the Children's Mental Health and Developmental Disabilities Act. When a child is fourteen years of age or older, the child shall be represented by an attorney unless, after consultation between the child and the child's attorney, the child elects to be represented by counsel appointed in the proceedings under the Children's Mental Health and Developmental Disabilities Act. F. When a child is subject to the provisions of the Abuse and Neglect Act and is receiving residential treatment or habilitation services, any documentation required pursuant to the Children's Mental Health and Developmental Disabilities Act shall be filed with the court as part of the abuse or neglect proceeding. A review of the child's placement in a residential treatment or habilitation program shall occur in the same manner and within the same time requirements as provided in the Children's Mental Health and Developmental Disabilities Act. G. The clerk of the court shall maintain a separate section within an abuse or neglect file for documents pertaining to actions taken under the Children's Mental Health and Developmental Disabilities Act. H. A child subject to the provisions of the Abuse and Neglect Act who receives treatment in a residential treatment or habilitation program shall enjoy all the substantive and procedural rights set forth in the Children's Mental Health and Developmental Disabilities Act. History: 1978 Comp., § 32A-4-23, enacted by Laws 1993, ch. 77, § 117; 1995, ch. 206, § 23; 2005, ch. 189, § 48. ANNOTATIONS The 2005 amendment, effective June 17, 2005, in Subsection D, provided that a hearing for involuntary placement for residential treatment or habilitation may be heard in a proceeding separate from an abuse or neglect proceeding; and in Subsection E, provided that when a child is fourteen years of age or older, the child shall be represented by an attorney, unless the child elects to be represented by counsel appointed in a proceeding under the Children's Mental Health and Developmental Disabilities Act. The 1995 amendment, effective July 1, 1995, inserted "under the Abuse and Neglect Act" in the section heading, deleted former Subsection B, relating to abuse or neglect petitions, redesignated former Subsections C and D as Subsections B and C, substituted "When a child in department custody needs involuntary placement for residential" for "If the department has reason to believe that a child in department custody needs residential" in Subsection B, deleted Subsections E and F, relating to release from residential treatment or habilitation, and added Subsections D through H. 32A-4-23.1. Disposition of an undocumented immigrant child in a proceeding under the Abuse and Neglect Act. A. Whenever the court adjudicates that a child is abused or neglected, the department shall determine the child's immigration status. At the first judicial review, the department shall report the child's immigration status to the court. Services to children alleged to have been abused, neglected or abandoned must be provided without regard to the immigration status of the child except where immigration status is explicitly set forth as a statutory or regulatory condition of coverage or eligibility. B. If the child is an undocumented immigrant, the department shall include in the treatment plan a recommendation as to whether the permanency plan for the child includes reuniting the child with the child's parents and whether it is in the child's best interest to be returned to the child's country of origin. If the permanency plan does not include reunification and the department does not recommend that the child be returned to the country of origin, the department shall determine whether the child may be eligible for special immigrant juvenile status under federal law. C. If the child is eligible for special immigrant juvenile status, the department shall move the court for a special immigrant juvenile status order containing the necessary findings to establish that the child meets the criteria for federal special immigrant juvenile status. The department's motion shall include a statement of the express wishes of the child, as expressed by the child or the child's guardian ad litem or attorney. D. After consultation with the child and the child's guardian ad litem or attorney, the department shall determine whether the child's best interests would be served by the filing of a petition for special immigrant juvenile status and application for adjustment of status and if in the child's best interest, within sixty days after an entry of the special immigrant juvenile status order, the department shall file a petition for special immigrant juvenile status and an application for adjustment of status on behalf of the child. E. If a petition and application have been filed and the petition and application have not been granted by the time the child reaches eighteen years of age, the court may retain jurisdiction over the case for the sole purpose of ensuring that the child continues to satisfy the requirements for classification as a special immigrant juvenile. F. Review hearings for the child shall be set solely for the purpose of confirming that the child continues to satisfy such requirements and determining the status of the petition and application. G. The court's jurisdiction terminates upon the final decision of the federal authorities. H. Retention of jurisdiction in this instance does not affect the transition services available to the child. I. The court may not retain jurisdiction of the case after the immigrant child's twenty-first birthday. J. In a judicial review report provided to the court for a child for whom the court has granted the special immigrant juvenile status order described in Subsection C of this section, the court shall be advised of the status of the petition and application process concerning the child. History: 1978 Comp., § 32A-4-23.1, as enacted by Laws 2009, ch. 239, § 43. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made Laws 2009, ch. 239, § 43 effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-4-24. Limitations on dispositional judgments; modification, termination or extension of court orders. A. A judgment vesting legal custody of a child in an agency shall remain in force for an indeterminate period not exceeding two years from the date entered. B. A judgment vesting legal custody of a child in an individual, other than the child's parent or permanent guardian, shall remain in force for two years from the date entered, unless sooner terminated by court order. C. A judgment vesting legal custody of a child in the child's parent or a permanent guardian shall remain in force for an indeterminate period from the date entered until terminated by court order or until the child is emancipated or reaches the age of majority. D. At any time prior to expiration, a judgment vesting legal custody or granting protective supervision may be modified, revoked or extended on motion by any party, including the child by and through the child's guardian ad litem. E. Prior to the expiration of a judgment transferring legal custody to an agency, the court may extend the judgment for additional periods of one year if it finds that the extension is necessary to safeguard the welfare of the child or the public interest. F. When a child reaches eighteen years of age, all neglect and abuse orders affecting the child then in force automatically terminate except as provided in Section 32A-4-23.1 NMSA 1978 and Subsection D[C] of Section 32A-4-25.3 NMSA 1978. The termination of the orders shall not disqualify a child from eligibility for transitional services. History: 1978 Comp., § 32A-4-24, enacted by Laws 1993, ch. 77, § 118; 2009, ch. 239, § 44. ANNOTATIONS Bracketed material. — The bracketed material in Subsection F was inserted by the compiler to correct a typographical error, and is not part of the law. The 2009 amendment, effective July 1, 2009, in Subsection D, after "any party", added "including the child by and through"; and in Subsection F, in the first sentence, after "automatically terminate", added the remainder of the sentence. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. Federal proceeding barred. — A federal class action by mentally or developmentally disabled children against state officers was barred because the continuing jurisdiction of the children's court under this section, coupled with the mandatory six-month periodic review hearings under Section 32A-4-25 NMSA 1978, constituted an ongoing state judicial proceeding. J.B. v. Valdez, 186 F.3d 1280 (10th Cir. 1999). Jurisdiction not lost by expiration of custody order. — Since the children's court had jurisdiction at the beginning of abuse and neglect proceedings, expiration of a temporary custody order did not cause the loss of the court's jurisdiction. Spear v. McDermott, 1996-NMCA-048, 121 N.M. 609, 916 P.2d 228, cert. denied, 121 N.M. 644, 916 P.2d 844. District court did not exercise its contempt power consistent with purpose of civil contempt. — In a civil contempt proceeding, where the district court found the children, youth and families department (CYFD) in contempt of court for attempting to circumvent the court's order in placing two children that had been adjudicated to be abused, the acts of which effectively eliminated the likelihood of reconciliation between the children and their parents, the district court's order holding CYFD in contempt for violating the placement decision and imposing compensatory damages and costs was an abuse of discretion, because the district court had previously found that CYFD had no duty to support reconciliation and the court had refused the parents' proposed finding that the placements might undermine future prospects for reconciliation between the children and their parents. Because efforts toward reunification and reconciliation were no longer being required by the district court, and were therefore not a goal of any treatment plan, the purpose for which the district court exercised its contempt power was not remedial in nature and therefore cannot be upheld as a valid exercise of civil contempt power. State v. ex rel. CYFD v. Mercer-Smith, 2019-NMSC-005, rev'g 2015- NMCA-093, 356 P.3d 26. Jurisdiction to impose sanctions continues after abuse and neglect proceedings are terminated.- A district court retains jurisdiction under its inherent authority to impose sanctions at any time, subject only to constitutional limitations or equitable defenses. State ex rel. Children, Youth & Families Dep’t. v. Mercer-Smith, 2015-NMCA- 093, cert. granted, 2015-NMCERT-008. The district court did not lose jurisdiction to continue contempt proceedings against the children, youth and families department, in an abuse and neglect case involving foster placement of children, when the abuse and neglect proceedings were terminated after the children turned eighteen years old, because a court retains jurisdiction under its inherent authority to impose sanctions at any time, subject only to constitutional limitations or equitable defenses. State ex rel. Children, Youth & Families Dep’t. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008. 32A-4-25. Periodic judicial review of dispositional judgments. A. The initial judicial review shall be held within sixty days of the disposition. At the initial judicial review, the parties shall demonstrate to the court efforts made to implement the treatment plan approved by the court in its dispositional order. The court shall determine the extent to which the treatment plan has been implemented and make supplemental orders as necessary to ensure compliance with the treatment plan and the safety of the child. Prior to the initial judicial review, the department shall submit a copy of the adjudicatory order, the dispositional order and notice of the initial judicial review to the council. The staff of the council, or an entity contracting with the council, shall review the case. If the staff or contracting entity determines that the case meets the criteria established in council rules, the staff or contracting entity shall designate the case for review by a substitute care review board. A representative of the substitute care review board, if designated, shall be permitted to attend and comment to the court. B. The court shall conduct subsequent periodic judicial reviews of the dispositional order within six months of the conclusion of the permanency hearing or, if a motion has been filed for termination of parental rights or permanent guardianship, within six months of the decision on that motion and every six months thereafter. Prior to a subsequent periodic judicial review, the department shall submit a progress report to the council or any designated substitute care review board. Prior to any judicial review by the court pursuant to this section, the substitute care review board may review the dispositional order or the continuation of the order and the department's progress report and report its findings and recommendations to the court. C. Judicial review pursuant to this section may be carried out by either of the following: (1) a judicial review hearing conducted by the court; or (2) a judicial review hearing conducted by a special master appointed by the court; provided, however, that the court approve any findings made by the special master. D. The children's court attorney shall give notice of the time, place and purpose of any judicial review hearing held pursuant to Subsection A, B or C of this section to: (1) all parties, including: (a) the child alleged to be neglected or abused or in need of court-ordered services, by and through the child's guardian ad litem or attorney; (b) the child's parent, guardian or custodian, who has allegedly neglected or abused the child or is in need of court-ordered services; and (c) any other person made a party by the court; (2) the child's foster parent or substitute care provider; (3) the child's court-appointed special advocate; and (4) if designated by the council, the substitute care review board. E. At any subsequent judicial review hearing held pursuant to Subsection B of this section, the department and all parties given notice pursuant to Subsection D of this section shall have the opportunity to present evidence and to cross-examine witnesses. At the hearing, the department shall show that it has made reasonable effort to implement any treatment plan approved by the court in its dispositional order and shall present a treatment plan consistent with the purposes of the Children's Code [Chapter 32A NMSA 1978] for any period of extension of the dispositional order. The respondent shall demonstrate to the court that efforts to comply with the treatment plan approved by the court in its dispositional order and efforts to maintain contact with the child were diligent and made in good faith. The court shall determine the extent of compliance with the treatment plan and whether progress is being made toward establishing a stable and permanent placement for the child. F. The Rules of Evidence shall not apply to hearings held pursuant to this section. The court may admit testimony by any person given notice of the hearing who has information about the status of the child or the status of the treatment plan. G. At the conclusion of any hearing held pursuant to this section, the court shall make findings of fact and conclusions of law. H. Based on its findings at a judicial review hearing held pursuant to Subsection B of this section, the court shall order one of the following dispositions: (1) dismiss the action and return the child to the child's parent without supervision if the court finds that conditions in the home that led to abuse have been corrected and it is now safe for the return of the abused child; (2) permit the child to remain with the child's parent, guardian or custodian subject to those conditions and limitations the court may prescribe, including protective supervision of the child by the department; (3) return the child to the child's parent and place the child under the protective supervision of the department; (4) transfer or continue legal custody of the child to: (a) the noncustodial parent, if that is found to be in the child's best interests; (b) a relative or other individual who, after study by the department or other agency designated by the court, is found by the court to be qualified to receive and care for the child and is appointed as a permanent guardian of the child; or (c) the department, subject to the provisions of Paragraph (6) of this subsection; (5) continue the child in the legal custody of the department with or without any required parental involvement in a treatment plan; provided that reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child's health and safety unless the court finds that such efforts are not required. The court may determine that reasonable efforts are not required to be made when the court finds that: (a) the efforts would be futile; or (b) the parent, guardian or custodian has subjected the child to aggravated circumstances; (6) make additional orders regarding the treatment plan or placement of the child to protect the child's best interests if the court determines the department has failed in implementing any material provision of the treatment plan or abused its discretion in the placement or proposed placement of the child; or (7) if during a judicial review the court finds that the child's parent, guardian or custodian has not complied with the court-ordered treatment plan, the court may order: (a) the child's parent, guardian or custodian to show cause why the parent, guardian or custodian should not be held in contempt of court; or (b) a hearing on the merits of terminating parental rights. I. Dispositional orders entered pursuant to this section shall remain in force for a period of six months, except for orders that provide for transfer of the child to the child's noncustodial parent or to a permanent guardian. J. When the court determines, pursuant to Paragraph (5) of Subsection H of this section, that no reasonable efforts at reunification are required, the court shall conduct, within thirty days, a permanency hearing as described in Section 32A-4-25.1 NMSA 1978. The department shall make reasonable efforts to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child. History: 1978 Comp., § 32A-4-25, enacted by Laws 1993, ch. 77, § 119; 1995, ch. 206, § 24; 1997, ch. 34, § 7; 1999, ch. 77, § 8; 2005, ch. 189, § 49; 2009, ch. 239, § 45; 2016, ch. 60, § 2; 2022, ch. 41, § 52. ANNOTATIONS Compiler's note. — This section was enacted by Laws 1993, ch. 77, § 119 as 32-4-23 NMSA 1978. It was recompiled by the compiler as 32A-4-25 NMSA 1978. See note at the beginning of the chapter. Cross references. — For judicial review procedure, see Rule 10-325 NMRA. For applicability of the Rules of Evidence, see Rule 11-1101 NMRA. For the federal Indian Child Welfare Act, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act; and deleted former Subsection H and redesignated former Subsections I through K as Subsections H through J, respectively. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2016 amendment, effective July 1, 2016, provided certain duties and responsibilities for the substitute care advisory council, and amended notice provisions for judicial review hearings; in the catchline, added "judicial"; in Subsection A, after "At the initial", added "judicial", near the end of the fourth sentence, after "the initial judicial review to the", deleted "local substitute care review board for that judicial district created under the Citizen Substitute Care Review Act" and added "council" and added the next two sentences, after "A representative of the", deleted "local", and after "review board", added "if designated"; in Subsection B, added "The court shall conduct", after "subsequent periodic", added "judicial", after "reviews of", added "the", after "dispositional", deleted "orders shall be held" and added "order", after "Prior to", deleted "the" and added "a subsequent periodic judicial", after "progress report to the", deleted "local substitute care review board for that judicial district created under the Citizen Substitute Care Review Act" and added "council or any designated substitute care review board", after "pursuant to this section, the", deleted "local", and after "recommendations to the court.", deleted "The"; added the new subsection designation "C" and redesignated former Subsections C through I as Subsection D through J, respectively; in Subsection C, added "Judicial", and after "review", added "pursuant to this section"; in Subsection D, in the introductory sentence, after "shall give notice", added "of the time, place and purpose of any judicial review hearing held pursuant to Subsection A, B or C of this section", added new paragraph designation "(1)", in Paragraph (1), in the introductory phrase, added the subparagraph designation "(a)", and after "the child", added "alleged to be neglected or abused or in need of court- ordered services", added the subparagraph designation "(b)", and after "the child’s", deleted "CASA, a contractor administering the local substitute care review board and the child’s foster parent or substitute care provider of the time, place and purpose of any judicial review hearing held pursuant to Subsection A or B of this section" and added "parent, guardian or custodian, who has allegedly neglected or abused the child or is in need of court-ordered services; and", added new Subparagraph (c), and added new Paragraphs (2) through (4); in Subsection E, after "At any", added "subsequent", and after the first occurrence of "the department", deleted "the child’s guardian ad litem or attorney", and after "Subsection", deleted "C" and added "D"; deleted former Subsection J; and in Subsection K, after "Subsection", deleted "H" and added "I", after "NMSA 1978", added "The department shall make", and after "reasonable efforts", deleted "shall be made". The 2009 amendment, effective July 1, 2009, in Subsection C, after "notice to all parties", added "including the child by and through"; and in Subsections C and D, after "guardian ad litem", added ”or attorney". The 2005 amendment, effective June 17, 2005, deleted former Subsection H(5)(c), which provided that the court may determine that reasonable efforts are not required to preserve and reunify the family if the parental rights of the parent to a sibling of the child have been terminated involuntarily. The 1999 amendment, effective July 1, 1999, made a minor stylistic change in Subsection C; in Subsection H(5), added the last two sentences and Subparagraphs (a) through (c); and added Subsection K. The 1997 amendment, effective July 1, 1997, rewrote former Subsection A to form present Subsections A and B, redesignated former Subsections B to I as Subsections C to J and made minor stylistic changes in Subsections C, D, and J accordingly, and inserted "at a judicial review hearing held pursuant to Subsection B of this section" in the introductory language of Subsection H. The 1995 amendment, effective July 1, 1995, inserted "a contractor administering the local substitute care review board" following "CASA" in Subsection B. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-38.1 NMSA 1978 have been included in the annotations to this section. Hearsay evidence. — The trial court did not err by basing its finding of futility made at a judicial review hearing on hearsay evidence. State ex rel. Children, Youth & Families Dep't v. Vanessa C., 2000-NMCA-025, 128 N.M. 701, 997 P.2d 833, cert. denied, 128 N.M. 690, 997 P.2d 822. Federal proceeding barred. — A federal class action by mentally or developmentally disabled children against state officers was barred because the continuing jurisdiction of the children's court under Section 32A-4-24 NMSA 1978, coupled with the mandatory six-month periodic review hearings under this section, constituted an ongoing state judicial proceeding. J.B. v. Valdez, 186 F.3d 1280 (10th Cir. 1999). Court's authority after child in custody of department. — Once legal custody is in the department of human services, the children's court has no authority to prohibit the department from placing physical custody of the child with any particular person. In re Jacinta M., 1988-NMCA-100, 107 N.M. 769, 764 P.2d 1327. Sexual orientation of proposed custodian, standing alone, is not enough to support a conclusion that the person cannot provide a proper environment. In re Jacinta M., 1988- NMCA-100, 107 N.M. 769, 764 P.2d 1327. 32A-4-25.1. Permanency hearings; permanency review hearings. A. A permanency hearing shall be commenced within six months of the initial judicial review of a child's dispositional order or within twelve months of a child entering foster care pursuant to Subsection D [E] of this section, whichever occurs first. Prior to the initial permanency hearing: (1) the department shall submit a copy of any continuation of the dispositional order and notice of hearing to the council or any substitute care review board designated pursuant to Section 32A-8-5 NMSA 1978; (2) the department shall submit a progress report to any designated substitute care review board; (3) all parties to the hearing shall attend a mandatory meeting and attempt to settle issues attendant to the permanency hearing and develop a proposed treatment plan that serves the child's best interest; and (4) any designated substitute care review board may review the child's case and the department's progress report and report its findings and recommendations to the court. B. At the permanency hearing, all parties shall have the opportunity to present evidence and to cross-examine witnesses. At the conclusion of the permanency hearing, the court shall order one of the following permanency plans for the child: (1) reunification; (2) placement for adoption after the parents' rights have been relinquished or terminated or after a motion has been filed to terminate parental rights; (3) placement with a person who will be the child's permanent guardian; (4) placement in the legal custody of the department with the child placed in the home of a fit and willing relative; or (5) placement in the legal custody of the department under a planned permanent living arrangement, provided that there is substantial evidence that none of the above plans is appropriate for the child. C. If the court adopts a permanency plan of reunification, the court shall adopt a plan for transitioning the child home within a reasonable period depending on the facts and circumstances of the case, but not to exceed six months, and schedule a permanency review hearing within three months. If the child is reunified, the subsequent hearing may be vacated. D. At the permanency review hearing, all parties and the child's guardian ad litem or attorney shall have the opportunity to present evidence and cross-examine witnesses. Based on the evidence, the court shall: (1) change the plan from reunification to one of the alternative plans provided in Subsection B of this section; (2) dismiss the case and return custody of the child to the child's parent, guardian or custodian; (3) continue legal custody of the child in the department to complete a transition home to the child's parent, guardian or custodian and continue the case plan for not more than six months, after which the case shall be dismissed unless the plan is changed as provided in Paragraph (1) of this subsection; or (4) return the child to the custody of the child's parent, guardian or custodian, subject to any conditions or limitations as the court may prescribe, including protective supervision of the child by the department and continuation of the case plan for not more than six months, after which the case shall be dismissed. The department may seek removal of a child from the home by obtaining an order in the pending case or by seeking emergency removal under Section 32A-4-6 NMSA 1978 during the period of protective supervision if the child's best interest requires such action. When a child is removed in this situation, a permanency hearing shall be scheduled within thirty days of the child coming back into the department's legal custody. E. The court shall hold a permanency hearing and adopt a permanency plan for a child within twelve months of the child entering foster care. For purposes of this section, a child shall be considered to have entered foster care on the earlier of: (1) the date of the first judicial finding that the child has been abused or neglected; or (2) sixty days after the date on which the child was removed from the home. F. The court shall hold permanency hearings every twelve months when a child is in the legal custody of the department. G. The children's court attorney shall give notice of the time, place and purpose of any permanency hearing or permanency review hearing held pursuant to this section to: (1) all parties, including: (a) the child alleged to be neglected or abused or in need of court-ordered services, by and through the child's guardian ad litem or attorney; (b) the child's parent, guardian or custodian, who has allegedly neglected or abused the child or is in need of court-ordered services; and (c) any other person made a party by the court; (2) the child's foster parent or substitute care provider; (3) the child's court-appointed special advocate; and (4) if designated by the council, the substitute care review board. H. The Rules of Evidence shall not apply to permanency hearings. The court may admit testimony by any person given notice of the permanency hearing who has information about the status of the child or the status of the treatment plan. All testimony shall be subject to cross-examination. History: Laws 1997, ch. 34, § 8; 2005, ch. 189, § 50; 2009, ch. 239, § 46; 2016, ch. 54, § 7; 2016, ch. 60, § 3. ANNOTATIONS Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Cross references. — For permanency hearing rules, see Rules 10-345 and 10-346 NMRA. For applicability of the Rules of Evidence, see Rule 11-1101 NMRA. For the meaning of "CASA", see 32A-1-4 NMSA 1978. 2016 Multiple Amendments. — Laws 2016, ch. 54, §7 and Laws 2016, ch. 60, § 3 enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2016, ch. 60, § 3, as the last act signed by the governor, is set out above and incorporates both amendments. The amendments enacted by Laws 2016, ch. 54, § 7 and Laws 2015, ch. 60, § 3 are described below. To view the session laws in their entirety, see the 2016 session laws on NMOneSource.com. Laws 2016, ch. 60, § 3, effective July 1, 2016, required the children, youth and families department to submit a copy of the dispositional order and notice of hearing to the substitute care advisory council, submit progress reports and give notice of hearings to any designated substitute care review board; in Subsection A, in the introductory paragraph, after "Prior to the initial permanency hearing", deleted "all parties to the hearing shall attend a mandatory meeting and attempt to settle issues attendant to the permanency hearing and develop a proposed treatment plan that serves the child’s best interest. Prior to the initial permanency hearing, the department shall submit a progress report regarding the child to the local substitute care review board for that judicial district. The local substitute care review board may review the child’s dispositional order, any continuation of that order", added new Paragraphs (1) through (3) and designated the remaining language of Subsection A as Paragraph (4), and in Paragraph (4), added "any designated substitute care review board may review the child’s case"; in Subsection D, after "The court must ensure", deleted "the" and added "that"; and in Subsection H, after "shall give notice", deleted the remainder of the sentence, which related to those entitled to notice, and added "of the time, place and purpose of any permanency hearing or permanency review hearing held pursuant to this section to:", and added new Paragraphs (1) through (4). Laws 2016, ch. 54, § 7, effective May 18, 2016, set a six-month limit for transitioning a child home when a permanency plan of reunification is adopted; in Subsection A, after "develop a proposed", deleted "treatment" and added "case"; in Subsection C, after "transitioning the child home", added "within a reasonable period depending on the facts and circumstances of the case, but not to exceed six months"; deleted former Subsection D and redesignated the succeeding subsections accordingly; and in Subsection D, added new Paragraph (3) and redesignated former Paragraph (3) as Paragraph (4), and in Paragraph (4), after "continuation of the", deleted "treatment" and added "case". The 2009 amendment, effective July 1, 2009, in Subsection A, in the first sentence, changed "Subsection E" to "Subsection D"; added Subsection D; and in Subsection H, after "notice to all parties", added "including the child by and through" and after "guardian ad litem", added "or attorney". Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, in Subsection A, provided that a permanency hearing shall be held within six month of the initial review of a dispositional order or within twelve months of a child entering foster care pursuant to Subsection E, whichever occurs first; in Subsection B, deleted the former provision which provided that during a permanency hearing, there is a rebuttable presumption that the child's best interest will be served by returning the child to his parent, guardian or custodian; in Subsection B(1) through (5), provided the plans that the court may order at a permanency hearing; deleted former Subsection C, which provided that if the presumption is not rebutted, the court could dismiss the case and return the child to his parent, guardian or custodian or return the child under conditions and limitations prescribed by the court; in Subsection C, provided that if the court orders reunification, the court shall adopt a transition plan and schedule a review hearing; deleted former Subsection D, which provided that if the presumption is rebutted, the court shall order that the child remain in legal custody of the department; in Subsection D(1) through (3), provided the dispositions that the court may make at a permanency review hearing, deleted former Subsection E, which provided that in a subsequent permanency hearing, there shall be a presumption that the child's best interest shall be served by providing for the adoption, emancipation or permanent guardianship of the child; in Subsection E, provided that the court shall adopt a permanency plan within twelve months after the child has entered foster care and provides criteria for determining the date a child enters foster care; deleted former Subsection F, which provided that if the presumption in Subsection E is not rebutted, the court shall order the adoption, emancipation or permanent guardianship of the child and efforts to reunite the child with his parent shall not be attempted; in Subsection F, provided that the court shall hold a permanency hearing every twelve months when a child is in the legal custody of the department; deleted former Subsection G, which provided that if the presumption in Subsection E is rebutted, the court shall dismiss the case and return the child to his parent, guardian or custodian or return the child to his parent, guardian or custodian under conditions and limitations; and in Subsection G, provided that the children's court attorney shall give notice of a permanency review hearing. Permanency hearings represent a critical stage. State ex rel. Children, Youth & Families Dep’t. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796. Hearings bear direct relation to final termination hearing. State ex rel. Children, Youth & Families Dep’t. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796. Factual basis for termination is largely established at permanency hearing, even though a formal final termination hearing follows. State ex rel. Children, Youth & Families Dep’t. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796. Rights of parents at hearing. — Parents have a due process right to fair notice and an opportunity for meaningful participation at the permanency stage, including the right to present evidence and cross examine witnesses, when their presence or additional safeguards would be useful or beneficial to the defense. State ex rel. Children, Youth & Families Dep’t. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796. Reunification plan. — Parents do not have an unlimited time to rehabilitate and reunite with their children. State law allows a reunification plan to be maintained for a maximum of fifteen months. State ex rel. Children, Youth & Families Dep’t. v. Maria C., 2004- NMCA-083, 136 N.M. 53, 94 P.3d 796. Incarceration can be the sole legal ground for changing a permanency plan. State ex rel. Children, Youth & Families Dep’t. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796. A parent's absence from permanency hearings did not increase the risk of an erroneous deprivation of parental rights and deny the parent due process where the evidence at the permanency hearings and the termination of parental rights hearing was the same evidence, the parent was sentenced to a term of at least five years in federal prison and the parent had a poor parenting history and a prior incarceration. State ex rel. Children, Youth and Families Dep't v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796. A parent who was incarcerated and not present at the termination of parental rights hearing, but who was given the opportunity to participate in the hearing by telephone and who refused to participate in the proceedings by verbalizing profanities towards the judge and then hung up by telephone waived this right to participate in the hearing. State ex rel. Children, Youth and Families Dep't v. Christopher L., 2003-NMCA-068, 133 N.M. 653, 68 P.3d 199. Standing to appeal placement. — Where the parent’s parental rights were terminated; the district court entered a stipulated order that granted the cousin of the parent and the child the status of an intervenor; the order stated the intervenor had a sufficient legal interest to seek consideration as a placement for the child so as to preserve family connections; and the department failed to consider the intervenor as a potential placement, the intervenor had standing to appeal the issue of whether department made reasonable efforts to identify and locate relatives for potential placement of the child. State ex rel. Children, Youth & Families Dep’t v. Laura J., 2013-NMCA-057, 301 P.3d 860, cert. denied, 2013-NMCERT-003. Standard for reviewing compliance with the duty to identify and locate relatives for potential placement. — The district court’s obligation to inquire into whether the department has complied with its mandate to locate, identify, and consider relatives with whom to place children in its custody is not satisfied by a pro forma ratification of the department’s assertions that such efforts have been made or by placing the burden of locating and identifying relatives on the parents of children in departmental custody. Rather, in order to comply with the relative search requirement of Subsection D of Section 32A-2-25.1 NMSA 1978, the court must conclude that the department, through all of its resources, has met its affirmative duty to identify and locate and conduct home studies on any appropriate relative expressing an interest in providing permanency for the child. State ex rel. Children, Youth & Families Dep’t v. Laura J., 2013-NMCA-057, 301 P.3d 860, cert. denied, 2013-NMCERT-003. Failure to identify and locate relatives for potential placement. — Where the parent’s parental rights were terminated; a cousin of the mother and the child intervened in the proceeding and sought to have the child placed with the intervenor; the intervenor attended meetings at the department and expressed an interest in providing care for the child’s half sibling; the intervenor contacted the department about the child; the intervenor was a department-licensed foster parent and the guardian of the child’s half sibling; and the department failed to consider placing the child with the intervenor, the department failed to comply with the statutory requirement of Subsection G of Section 32A-4-25.1 NMSA 1978 of making reasonable efforts to place the child with willing and appropriate relatives. State ex rel. Children, Youth & Families Dep’t v. Laura J., 2013- NMCA-057, 301 P.3d 860, cert. denied, 2013-NMCERT-003. Preference that a child be placed with relatives. — New Mexico law expresses a preference that any child subject to the New Mexico Abuse and Neglect Act be placed with relatives. The court shall determine whether the children, youth and families department (department) has made reasonable efforts to identify and locate all grandparents and other relatives. The court shall also determine whether the department has made reasonable efforts to conduct home studies on any appropriate relative expressing an interest in providing permanency for the child. The court must ensure the consideration has been given to the child’s familial identity and connections. State ex rel. Children, Youth and Families Dep’t v. Casey J., 2015-NMCA-088. Where Indian children were taken into custody and placed into foster care by the children, youth and families department (department) due to ongoing concerns related to each parent’s issues with substance abuse and domestic violence, and where the children’s father claimed that the department failed to make reasonable efforts to identify, locate and conduct home studies on willing and appropriate relatives who could potentially serve as placement for children, the district court did not err in finding that the department’s efforts to place children with relatives satisfied the requirements of 32A-4- 25.1 NMSA 1978, where the evidence established that the department made consistent efforts to honor mother and father’s request that the children’s aunt be considered as a placement for children, that the department attempted to engage aunt in at least four home studies, but that aunt withdrew from the process each time, and that other relatives had been considered by the department, but that these relatives had been unwilling or unable to provide a suitable placement for children. State ex rel. Children, Youth and Families Dep’t v. Casey J., 2015-NMCA-088. A placement preference exists in favor of a child's relatives over non-relatives, but the preference must be tempered by the best interests of the child involved. — The intended purpose of the Abuse and Neglect Act, 32A-4-1 to 32A-4-35 NMSA 1978 in addition to making decisions in the child's best interests and providing due process to all involved parties, is to preserve the unity of the family, and therefore once a child is placed in the custody of the children, youth and families department, and a court has made a finding of abuse or neglect, a placement preference with qualified relatives is triggered, which remains the case for any future permanency changes involving the child. The law also supports, however, the notion that the preference must be tempered by the best interests of the child involved and therefore, there may be circumstances in which a court could reasonably conclude that a non-relative foster parent with whom a child is living and has an emotionally significant relationship may and should be given preference over a relative. Foster Parent Placement Preference (7/1/22), Att'y Gen. Adv. Ltr. 2022-05. Violation of six-month timeline in termination of parental rights case did not constitute fundamental error. — Where child was brought into children, youth and families department (CYFD) custody two months prior to mother pleading no contest to neglecting child due to her domestic violence, substance abuse, and mental health issues, and where, over the next several years, several attempts at visitation between child and mother took place, after which child exhibited negative, and sometimes violent, behavioral issues, and where mother argued that § 32A-4-25.1(D) NMSA 1978 required the district court to dismiss the case, change the permanency plan, or complete a plan to transition home within six months of the initial judicial review, and that the district court committed fundamental error when it failed to take one of these actions until two years after the initial judicial review, when the court changed the permanency plan to adoption, the district court did not commit fundamental error, because even if the court failed to comply with the six-month timeline, the additional time before termination proceedings benefitted mother's defense of termination by giving her additional opportunities to fully comply with her treatment plan and providing additional attempts to reestablish visitation with child. Because the alleged error did not go to the foundation of the case or deprive mother of rights essential to her defense, it did not constitute fundamental error. State ex rel. CYFD v. Josie G., 2021-NMCA-063, cert. denied. 32A-4-25.2. Transition services. A. Prior to a child's reaching seventeen years of age, the department shall meet with the child, the child's attorney and others of the child's choosing, including biological family members, to develop a transition plan. The department shall assist the child in identifying and planning to meet the child's needs after the child's eighteenth birthday, including housing, education, employment or income, health and mental health, local opportunities for mentors and continuing support services. B. The department shall present the child's proposed transition plan to the court at the first hearing scheduled after the child's seventeenth birthday. C. The court shall order a transition plan for the child. The transition plan approved by the court shall be reviewed at every subsequent review and permanency hearing. History: 1978 Comp., § 32A-4-25.2, as enacted by Laws 2009, ch. 239, § 47. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made Laws 2009, ch. 239, § 47 effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-4-25.3. Discharge hearing. A. At the last review or permanency hearing held prior to the child's eighteenth birthday, the court shall review the transition plan and shall determine whether the department has made reasonable efforts to implement the requirements of Subsection B of this section. B. The court shall determine: (1) whether written information concerning the child's family history, the whereabouts of any sibling if appropriate and education and health records have been provided to the child; (2) whether the child's social security card, certified birth certificate, state- issued identification card, death certificate of a parent and proof of citizenship or residence have been provided to the child; (3) whether assistance in obtaining medicaid has been provided to the child, unless the child is ineligible for medicaid; and (4) whether referral for a guardianship or limited guardianship if the child is incapacitated has been made. C. If the court finds that the department has not made reasonable efforts to meet all the requirements of Subsection B of this section and that termination of jurisdiction would be harmful to the young adult, the court may continue to exercise its jurisdiction for a period not to exceed one year from the child's eighteenth birthday. The young adult must consent to continued jurisdiction of the court. The court may dismiss the case at any time after the child's eighteenth birthday for good cause. History: 1978 Comp., § 32A-4-25.3, as enacted by Laws 2009, ch. 239, § 48. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made Laws 2009, ch. 239, § 48 effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-4-26. Parental responsibility. A. The court shall order the parent to pay the reasonable costs of support and maintenance of the child that the parent is financially able to pay if a child is adjudicated to be neglected or abused and the court orders the child placed with an agency or individual other than the parent. The court may use the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonable payment. B. The court may enforce any of its orders issued pursuant to this section by use of its contempt power. History: 1978 Comp., § 32A-4-26, enacted by Laws 1993, ch. 77, § 120. 32A-4-27. Intervention; persons permitted to intervene. A. At any stage of an abuse or neglect proceeding, a person described in this subsection may be permitted to intervene as a party with a motion for affirmative relief: (1) a foster parent with whom the child has resided for at least six months; (2) a relative within the fifth degree of consanguinity with whom the child has resided; (3) a stepparent with whom the child has resided; or (4) a person who wishes to become the child's permanent guardian. B. When determining whether a person described in Subsection A of this section should be permitted to intervene, the court shall consider: (1) the person's rationale for the proposed intervention; and (2) whether intervention is in the best interest of the child. C. When the court determines that the child's best interest will be served as a result of intervention by a person described in Subsection A of this section, the court may permit intervention unless the party opposing intervention can demonstrate that a viable plan for reunification with the respondents is in progress and that intervention could impede the progress of the reunification plan. D. A parent of the child who is not named in the petition alleging abuse or neglect shall be permitted to intervene during any stage of an abuse or neglect proceeding. E. The foster parent shall be permitted to intervene when: (1) the foster parent desires to adopt the child; (2) the child has resided with the foster parent for at least six months within the year prior to the termination of parental rights; (3) a motion for termination of parental rights has been filed by a person other than the foster parent; and (4) bonding between the child and the child's foster parent is alleged as a reason for terminating parental rights in the motion for termination of parental rights. F. The foster parent, preadoptive parent or relative providing care for the child shall be given notice of, and an opportunity to be heard in, any review or hearing with respect to the child, except that this subsection shall not be construed to require that any foster parent, preadoptive parent or relative providing care for the child be made a party to such a review or hearing solely on the basis of the notice and opportunity to be heard. History: 1978 Comp., § 32A-4-27, enacted by Laws 1993, ch. 77, § 121; 1999, ch. 77, § 9; 2022, ch. 41, § 53. ANNOTATIONS The 2022 amendment, effective July 1, 2022, removed provisions related to Indian children which are now covered by the Indian Family Protection Act; in Subsection B, after "rationale for the", deleted "purposed" and added "proposed"; in Subsection D, deleted "The person described in this subsection shall be permitted to intervene during any stage of an abuse or neglect proceeding", after "the petition alleging abuse or neglect", added "shall be permitted to intervene during any stage of an abuse or neglect proceeding", and deleted Paragraph D(2), which provided "when the child is an Indian child, the child's Indian tribe"; and in Subsection E, after "The", deleted "child's". Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 1999 amendment, effective July 1, 1999, added Subsection F. 32A-4-28. Termination of parental rights; adoption decree. A. In proceedings to terminate parental rights, the court shall give primary consideration to the physical, mental and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated. B. The court shall terminate parental rights with respect to a child when: (1) there has been an abandonment of the child by the child's parents; (2) the child has been a neglected or abused child as defined in the Abuse and Neglect Act and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by the department or other appropriate agency to assist the parent in adjusting the conditions that render the parent unable to properly care for the child. The court may find in some cases that efforts by the department or another agency are unnecessary, when: (a) there is a clear showing that the efforts would be futile; or (b) the parent has subjected the child to aggravated circumstances; or (3) the child has been placed in the care of others, including care by other relatives, either by a court order or otherwise and the following conditions exist: (a) the child has lived in the home of others for an extended period of time; (b) the parent-child relationship has disintegrated; (c) a psychological parent-child relationship has developed between the substitute family and the child; (d) if the court deems the child of sufficient capacity to express a preference, the child no longer prefers to live with the natural parent; (e) the substitute family desires to adopt the child; and (f) a presumption of abandonment created by the conditions described in Subparagraphs (a) through (e) of this paragraph has not been rebutted. C. A finding by the court that all of the conditions set forth in Subparagraphs (a) through (f) of Paragraph (3) of Subsection B of this section exist shall create a rebuttable presumption of abandonment. D. The department shall not file a motion, and shall not join a motion filed by another party, to terminate parental rights: (1) when the sole factual basis for the motion is that a child's parent is or was formerly incarcerated; or (2) if the motion is based, to any extent, on the fact that the child is an Indian child or that the child's parent or parents are Indian. E. If the court finds that parental rights should be terminated; that the requirements for the adoption of a child have been satisfied; that the prospective adoptive parent is a party to the action; and that good cause exists to waive the filing of a separate petition for adoption, the court may proceed to grant adoption of the child, absent an appeal of the termination of parental rights. The court shall not waive any time requirements set forth in the Adoption Act [Chapter 32A, Article 5 NMSA 1978] unless the termination of parental rights occurred pursuant to the provisions of Paragraph (3) of Subsection B of this section. The court may enter a decree of adoption only after finding that the party seeking to adopt the child has satisfied all of the requirements set forth in the Adoption Act. Unless otherwise stipulated by all parties, an adoption decree shall take effect sixty days after the termination of parental rights, to allow the department sufficient time to provide counseling for the child and otherwise prepare the child for the adoption. The adoption decree shall conform to the requirements of the Adoption Act and shall have the same force and effect as other adoption decrees entered pursuant to that act. The court clerk shall assign an adoption case number to the adoption decree. History: 1978 Comp., § 32A-4-28, enacted by Laws 1993, ch. 77, § 122; 1995, ch. 206, § 25; 1997, ch. 34, § 9; 1999, ch. 77, § 10; 2001, ch. 41, § 1; 2005, ch. 189, § 51; 2022, ch. 41, § 54. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act, and prohibited the department from filing or joining a motion to terminate parental rights when the sole factual basis for the motion is that a child's parent was formerly incarcerated or if the motion is based on the fact that the child is an Indian child or that the child's parent or parents are Indian; in Subsection D, Paragraph D(1), after "child's parent is", added "or was formerly", added Paragraph D(2); and deleted former Subsection E and redesignated former Subsection F as Subsection E. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2005 amendment, effective June 17, 2005, deleted former Subsection B(2)(c), which provided that the court may find that efforts to assist the parent care for the child are unnecessary when the parental rights of the parent to a sibling of the child have been terminated involuntarily. The 2001 amendment, effective July 1, 2001, added Subsection D and renumbered the remaining subsections accordingly. The 1999 amendment, effective July 1, 1999, in Subsection B(2), added the Subparagraph (a) designation, deleted "or when a parent has caused great bodily harm to the child or great bodily harm or death to the child's sibling; or" from the end of Subparagraph (a), and added Subparagraphs (b) and (c). The 1997 amendment, effective July 1, 1997, added "including the likelihood of the child being adopted if parental rights are terminated" at the end of Subsection A, inserted "or when a parent has caused great bodily harm to the child or great bodily harm or death to the child's sibling" near the end of Paragraph B(2), substituted "(a) through (f)" for "(a) through (e)" in Subsection C, and made minor stylistic changes in Subsections B and E. The 1995 amendment, effective July 1, 1995, added Subsection B(3)(f), inserted "Subparagraphs (a) through (e) of" following "set forth in" in Subsection C, rewrote Subsection E, and made minor stylistic changes throughout the section. I. GENERAL CONSIDERATION. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-54 NMSA 1978 have been included in the annotations to this section. Application of Subsection B. — Subsection (B)(1) is to be used to terminate parental rights by a finding of abandonment where a parent is absent prior to termination. Subsection (B)(2) is to be used where a parent is present and expresses a legitimate desire to take responsibility for a child prior to termination. In the Matter of Grace H., 2014-NMSC-034. Where respondent did not receive notice of and did not appear at hearings leading to termination of respondent’s parental rights; the district court’s permanency order incorporated a family treatment plan for respondent that had a completion date of May 1, 2010; in March 2010, the department filed a motion to terminate respondent’s parental rights; in April 2010, one month before the initial termination hearing, when respondent learned that the department had custody of respondent’s child, respondent met with the department and told the department that respondent wanted custody of the child; and the district court concluded that respondent had abandoned the child under Subsection (B)(1) as grounds for termination of respondent’s parental rights, respondent’s parental rights were improperly terminated under Subsection (B)(1) because respondent was entitled to assistance and treatment under Subsection (B)(2). In the Matter of Grace H., 2014-NMSC-034. Improper application of Subsection B. — In termination of parental rights case, where the record established that father was present prior to the district court’s termination and that father expressed a legitimate desire to take responsibility for the child, the district court’s use of 32A-4-28(B)(1) NMSA 1978 was improper because 32A- 4-28(B)(1) applies only where a parent is absent prior to termination, and conversely, 32A-4-28(B)(2) is to be used where a parent is present and expresses a legitimate desire to take responsibility for a child prior to termination. State ex rel. CYFD v. Alfonso M.E., 2016-NMCA-021. Application of Subsection B when CYFD proceeds under two theories. — Subsection B(1) should be used to terminate parental rights where a parent is completely absent prior to termination, while Subsection B(2) should be used where a parent is present and expresses a legitimate desire to take responsibility for a child prior to termination. Where the children, youth and families department proceeds under both theories and there is an adjudication of neglect under Subsection B(2), the application of Subsection B(1) is precluded. State ex rel. Children, Youth & Families Dep’t v. Melvin C., 2015-NMCA-067. Where father indicated his desire to reunify with his child and his willingness to work a treatment plan, and where the children, youth and families department stipulated to father’s no contest plea to the neglect allegation, the application of Subsection B(1) of this section was inappropriate because the record reflected father’s legitimate desire to take responsibility for his child and did not support a finding that father was completely absent. State ex rel. Children, Youth & Families Dep’t v. Melvin C., 2015-NMCA-067. Kinship guardians possess the rights of biological parents. — A kinship guardian appointed under the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq., possesses the same legal rights and responsibilities of a biological parent and may not be involuntarily dismissed as a party from a termination of parental rights case under the Abuse and Neglect Act, 32A-4-1 NMSA 1978 et seq., without first revoking the kinship guardianship according to the procedures specified in the Kinship Guardianship Act and the rules of evidence, but is not a necessary and indispensable party as defined by Rule 1-019 NMRA. State ex rel. Children, Youth & Families Dep’t v. Djamila B., 2015-NMSC-003. Where guardian was appointed by a family court as a kinship guardian pursuant to the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq., and where Children, Youth and Families Department (CYFD) brought abuse and neglect proceedings in children’s court against guardian and children’s biological parents pursuant to the Abuse and Neglect Act, 32A-4-1 NMSA 1978 et seq., the kinship guardian, who possesses the same legal rights and responsibilities of a biological parent, must be a party to a termination of parental rights hearing under the Abuse and Neglect Act, but is not a necessary and indispensable party as defined by Rule 1-019 NMRA. State ex rel. Children, Youth & Families Dep’t v. Djamila B., 2015-NMSC-003. Kinship guardian is a necessary and indispensable party. — A kinship guardian under the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq., who is named as a respondent in an abuse and neglect proceeding is a necessary and indispensable party in the abuse and neglect case and may not be involuntarily dismissed from the case without first revoking the kinship guardianship according to the procedures specified in the Kinship Guardianship Act. State ex rel. CYFD v. Djamila B., 2014-NMCA-045, cert. granted, 2014-NMCERT-004. Where the guardian was appointed as kinship guardian for the children pursuant to the Kinship Guardianship Act, 40-10B-1 NMSA 1978 et seq.; the children lived with the guardian; the department filed a neglect and abuse petition under the Abuse and Neglect Act, 32A-4-1 NMSA 1978 et seq., against the guardian and the children’s parents; the district court adopted the department’s permanency plan to reunify the children with the guardian; six months later, the district court changed the permanency plan from reunification to adoption and dismissed the guardian from the proceedings; and the guardian’s kinship guardianship had not been revoked pursuant to the Kinship Guardianship Act, because the permanency plan included a proposed adoption, the guardian was a necessary and indispensable party to the abuse and neglect case so long as the guardian’s kinship guardianship remained in effect. State ex rel. CYFD v. Djamila B., 2014-NMCA-045, cert. granted, 2014-NMCERT-004. Best-interests-of-the-child standard. — The statutory mandate to give primary consideration to the best interests of the child in a proceeding to terminate parental rights does not deny the fundamental interests of the parents in the care, custody and control of the child. State ex rel. Children, Youth & Families Dep't v. John R., 2009- NMCA-025, 145 N.M. 636, 203 P.3d 167. In abuse and neglect or termination proceedings, translations of court documents and interpreters do not have to be provided as a matter of law to non-English speaking respondents. State ex rel., Children, Youth & Families Dep't v. William M., 2007-NMCA- 055, 141 N.M. 765, 161 P.3d 262, cert. denied, 2007-NMCERT-005, 141 N.M. 762, 161 P.3d 259. Procedure after adjudication of neglect. — Termination of parental rights may be based on abandonment, abuse or neglect, or presumptive abandonment. After a court makes a finding of neglect in an adjudicatory proceeding, the children, youth and families department has a statutory duty to make reasonable efforts to assist a parent with reunification, and where there is a finding of neglect or abuse under Subsection B(2) of this section, the plain language of the statute requires a dispositional hearing and the creation of a treatment plan therein. State ex rel. Children, Youth & Families Dep’t v. Melvin C., 2015-NMCA-067. Where father entered a no contest plea to an allegation of neglect, and the district court entered a finding of neglect, it was error for the district court to proceed with a termination of parental rights hearing based on an allegation of abandonment. Although abuse or neglect and abandonment are separate and independent grounds for the termination of parental rights, where there is a finding of neglect or abuse under Subsection B(2) of this section, the statute requires a dispositional hearing and the creation of a treatment plan therein. The district court, having never acted to assess the propriety of a treatment plan and having never ordered that one be created, erred by failing to fulfill its statutory duties under the adjudication of neglect that it had previously entered as it was required to do by 32A-4-28(B)(2). State ex rel. Children, Youth & Families Dep’t v. Melvin C., 2015-NMCA-067. Procedure after reversal of abuse and neglect adjudication. — After an adjudication of abuse and neglect is reversed during termination of parental rights proceedings, the district court, on remand, retains jurisdiction to determine whether the parent prevailing on appeal should regain custody of the child. The court and CYFD must put a transition plan in place to attempt to return the child to the parent. CYFD may seek a termination of parental rights by filing new or current allegations of abuse, neglect or abandonment. To prevail on new allegations, the department must demonstrate by clear and convincing evidence that the prior reversed adjudications and CYFD’s own actions did not contribute to the new or current allegations of abuse or neglect against the parent. The court must determine whether the new allegations are supported by clear and convincing evidence. The court must make findings with respect to whether the new allegations are actually a result of the prior adjudication against the parent or whether the allegations actually constitute new incidences of abuse or neglect. If the court does not find clear and convincing evidence of abuse or neglect based on the new allegations, the court must expedite the transition of the child to the parent, putting in place any services or plans that may assist in the transition. If the court determines that there is clear and convincing evidence of new abuse or neglect by the parent, the court must approve a treatment plan for the parent or find that further efforts by CYFD would be futile. If a treatment plan is approved, the court must review compliance with the plan as provided in the Abuse and Neglect Act. If CYFD establishes that further efforts to assist the parent would be futile, then they may seek termination of parental rights. State ex rel., Children, Youth & Families Dep't v. Benjamin O., 2007-NMCA-070, 141 N.M. 692, 160 P.3d 601. Limitation on evidence. — In a termination of parental rights case, where the children, youth and families department’s (department) first motion to terminate father’s parental rights was denied due to lack of clear and convincing evidence that the statutory requirements for termination had been satisfied, the district court did not err in allowing the department to present evidence of events preceding the first hearing on the first motion to terminate parental rights in a subsequent termination of parental rights hearing, because to ignore all preceding evidence when there is no dispute as to the adjudication of abuse or neglect, which could include a parent’s history of compliance, information about the causes and conditions that led to the child being taken into custody, and attempts to alleviate those causes and conditions, would be to limit the district court’s access to information that is needed to appropriately assess whether a parent’s parental rights should be terminated. State ex rel. CYFD v. William C., Jr., 2017-NMCA-058. Constitutionality. — A similar statute was not constitutionally defective by failing to provide for a defense of mental illness. In re Jason Y., 1987-NMCA-120, 106 N.M. 406, 744 P.2d 181. A similar statute was not vague or ambiguous. In re Samantha D., 1987-NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert. denied, 106 N.M. 174, 740 P.2d 1158. No right to jury trial. — There is no right to a trial by jury in termination of parental rights proceedings provided by either the Children's Code or the state constitution. State ex rel. Children, Youth & Families Dep't v. T.J., 1997-NMCA-021, 123 N.M. 99, 934 P.2d 293, cert. denied, 122 N.M. 808, 932 P.2d 498. Effect of Child Custody Jurisdiction Act. — The former New Mexico Child Custody Jurisdiction Act (now see Sections 40-10A-101 to 40-10A-403 NMSA 1978) does not supersede or invalidate a proceeding to terminate parental rights. Laurie R. v. N.M. Human Servs. Dep't, 1988-NMCA-055, 107 N.M. 529, 760 P.2d 1295. Applicability of the federal Indian Child Welfare Act. — In termination of parental rights proceeding, the federal Indian Child Welfare Act did not apply where father failed to show that his children were eligible for membership in an Indian tribe, and therefore did not satisfy the definition of Indian child as set forth in the federal law. State ex rel. CYFD v. Nathan H., 2016-NMCA-043, cert. denied. Applicability of Americans with Disabilities Act. — Even though the federal Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) might apply in the context of abandonment under this section if, because of a violation thereof, the parent lacked responsibility for destruction of the parent-child relationship, there was no violation in this case since the mother refused to cooperate or participate voluntarily in treatment plans. State ex rel. Children, Youth & Families Dep't v. John D., 1997-NMCA-019, 123 N.M. 114, 934 P.2d 308. Services provided by CYFD must reasonably accommodate a parent’s disability. — Where the Children, Youth and Families Department (CYFD) alleged that the children in this case were neglected due to their mother’s intellectual disability, and where, following an adjudicatory hearing, the district court entered an adjudication of neglect based on mother’s intellectual disability, which the court found interfered with mother’s ability to properly feed, clean and care for her children, and where the district court adopted CYFD’s treatment plan and ordered CYFD to comply with the ADA, which directs CYFD to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to provide the parent an equal opportunity to participate in the treatment plan, unless such modifications would fundamentally alter the nature of the service, program or activity, and where, because of mother’s struggles with complying with the treatment plan and upon CYFD’s motion, the district court terminated mother’s parental rights, the district court erred in finding that CYFD provided reasonable accommodations for mother’s intellectual disability in compliance with the ADA and in terminating mother’s parental rights, because the state law requirement that CYFD make reasonable efforts to assist a parent incorporates the ADA requirement that the services provided by CYFD reasonably accommodate a parent’s disability, and in this case, CYFD failed to incorporate into mother’s case plan the district court’s orders concerning the accommodations it was required to implement, failed to seek modification of the court’s order, and failed to advise the court of its lack of compliance. The district court, therefore, was not fulling informed when it found that CYFD provided reasonable accommodations for mother’s intellectual disability in compliance with the ADA and 32A-4-28(B)(2) NMSA 1978. CYFD v. Geneva C., 2023- NMCA-003. Adequacy of notice when parent represented by counsel. — The human services department [health care authority department] was required to serve a parent's attorney with notice of the department's action to terminate parental rights, when the attorney was representing him in a separate neglect action before the children's court. Ronald v. State ex rel. Human Servs. Dep't, 1990-NMSC-071, 110 N.M. 454, 797 P.2d 243. Assistance of counsel. — The appointment of one attorney to represent both the mother and father in a proceeding for termination of parental rights may create a conflict of interest for the attorney. State ex rel. Children, Youth & Families Dep't v. Tammy S., 1999-NMCA-009, 126 N.M. 664, 974 P.2d 158. Efforts to assist parents. — Because parenting is a fundamental liberty interest, reasonable efforts must be made by the department to assist the parent before parental rights may be terminated. In re Elizabeth H., 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, cert. denied, 132 N.M. 397, 49 P.3d 76. Reasonable efforts by the department to assist a parent vary with a number of factors, including the level of cooperation demonstrated by the parent and the recalcitrance of the problems that render the parent unable to provide adequate parenting. In re Elizabeth H., 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, cert. denied, 132 N.M. 397, 49 P.3d 76. Case law. — The provisions of Section 32A-4-28B NMSA 1978 which permit the court to relieve the state of the burden of engaging in reasonable efforts to assist the parent in adjusting the conditions that render the parent unable to properly care for the child and relieve the state of the burden of proving that such efforts would not result in a change of the conditions and causes of the neglect or abuse are not unconstitutional as denial of a parent's right to due process as a termination of parental rights hearing. State ex rel. Children, Youth and Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845. Department not required to assist parent where abandonment's effects are unremediable. — Where abandonment by a father is proven, and the results of the father's past conduct are not remediable, the department is not required to show that it has made efforts to assist the father in remedying the problem. State ex rel. Dep't of Human Servs. v. Peterson, 1986-NMSC-001, 103 N.M. 617, 711 P.2d 894, cert. denied, 103 N.M. 525, 710 P.2d 92. Aggravating circumstances relieved the department of the obligation to make efforts to reunify the family. — Where the department filed proceedings to terminate the parent’s parental rights to the child; the parent had a chronic illegal drug abuse problem, but never entered or completed a drug treatment plan, never had a home or employment, failed to complete work on a GED, and had been in and out of jail since the beginning of the case; the child had a high level of methamphetamine in the child’s system when the child was taken into custody by the department; the parent’s parental rights to the child’s sibling had previously been terminated; the district court found that there were aggravating circumstances based on the prior termination of the parent’s parental rights to the child’s sibling, relieved the department of its obligation to make efforts to reunify the family, and terminated the parent’s parental rights to the child; the parent’s appeal of the prior termination of the parent’s parental rights to the child’s sibling was pending and unresolved during the neglect and abuse proceeding regarding the child; and the parent claimed that the parent’s right to due process had been violated by the district court’s finding of aggravated circumstances when the prior termination had not been resolved on appeal, the parent’s due process rights were not violated. State ex rel. CYFD v. Raquel M., 2013-NMCA-061, 303 P.3d 865, cert. quashed, 2013-NMCERT-007. Notice required that parent's relation with partner is a condition of abuse and neglect. — When the behavior of a parent's partner is such that it is difficult for a person of ordinary intelligence and sensibilities to realize that the partner's self- centeredness or other characteristic is harming the child, the department must put the parent on notice that the parent's relation with the partner is a condition and cause of the abuse and neglect of the child and that a continued relation with the partner is grounds for termination of the parent's parental rights in order to satisfy the department's duty to engage in reasonable efforts to assist the parent in adjusting the conditions that render the parent unable to properly care for the child. State ex rel. Children, Youth & Families Dep't v. Joseph M., 2006-NMCA-029, 139 N.M. 137, 130 P.3d 198. Termination of parental rights because of neglect or abuse does not require a prior adjudication of neglect. State ex rel. Dep't of Human Servs. v. Ousley, 1985-NMCA-035, 102 N.M. 656, 699 P.2d 129. Injury to child not condition precedent. — While a court may not speculate as to the future care of a child, the primary consideration is the best interests and welfare of the child, and the court should not be forced to refrain from taking action until each child suffers an injury. It is not necessary to wait until a child has been injured, since knowingly, intentionally, or negligently placing a child in danger constitutes abuse and is a ground for terminating parental rights. State ex rel. Dep't of Human Servs. v. Tommy A. M., 1987-NMCA-043, 105 N.M. 664, 735 P.2d 1170. II. PARENTAL RIGHTS. Due process. — Minimum consideration of due process required court to inquire on the record whether mother waived certain due process rights and failure to do so was fundamental error. A mother was denied due process when her parental rights were terminated at a hearing that she did not attend and at which only a proffer was made of the evidence supporting the termination. State ex rel. Children, Youth & Families Dep't v. Stella P., 1999-NMCA-100, 127 N.M. 699, 986 P.2d 495. The trial court has a responsibility to inquire into whether mother has waived her due process rights. If the parties were not prepared to address the issue, the trial court should have ordered a brief continuance. Such a continuance will give the parties an opportunity to propose arrangements for mother to participate even though she cannot be physically present. State ex rel. Children, Youth, & Families Dep't v. Steven, 1999- NMCA-141, 128 N.M. 304, 992 P.2d 317. District court’s refusal to appoint a guardian ad litem did not violate disabled parent’s procedural due process rights. — Where the Children, Youth and Families Department (CYFD) alleged that the children in this case were neglected due to their mother’s intellectual disability, and where, following an adjudicatory hearing, the district court entered an adjudication of neglect based on mother’s intellectual disability, which the court found interfered with mother’s ability to properly feed, clean and care for her children, and where the district court adopted CYFD’s treatment plan and ordered CYFD to comply with the ADA, which directs CYFD to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to provide the parent an equal opportunity to participate in the treatment plan, unless such modifications would fundamentally alter the nature of the service, program or activity, and where, throughout the proceedings, mother’s counsel requested that a guardian ad litem be appointed to assist mother in understanding the proceedings, the district court did not abuse its discretion in refusing to appoint a guardian ad litem, because mother was both competent and capable of making decisions with the advice of counsel, and the district court made a series of accommodations for hearings, including allowing family members to attend court with mother and allowing a care provider to confer with mother to clarify the proceedings. Refusing to appoint a guardian ad litem did not deprive mother of due process, and providing other accommodations in the courtroom for mother’s disability instead of a guardian ad litem was not an abuse of the court’s discretion. CYFD v. Geneva C., 2023-NMCA-003. Sufficient procedural protections of non-English speaking parent. — Father, whose primary language was Spanish, was afforded adequate procedural protections to ensure that he had adequate notice and an opportunity to be heard, where the father was represented by a court-appointed attorney who spoke Spanish and could discuss the case with him; the father appeared by telephone at the adjudicatory hearing and in person at all other in-court proceedings with the assistance of a certified interpreter; CYFD used a Spanish-speaking social worker on occasion to assist in communicating with the father; and the father was apprized of the critical aspects of the case throughout the proceedings by his counsel, the department, and the court. State ex rel., Children, Youth & Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262, cert. denied, 2007-NMCERT-005, 141 N.M. 762, 161 P.3d 259. Due process rights of parents generally. — Because the right to raise one’s child is a fundamental right protected by the fourteenth amendment to the United States constitution, termination proceedings must be conducted in a constitutional manner. As such, a parent’s legal relationship with his or her child cannot be severed without due process of law, which requires that termination proceedings be conducted with scrupulous fairness to the parent. State ex rel. Children, Youth and Families Dep’t v. Mafin M., 2003-NMSC-015, 133 N.M. 827, 70 P.3d 1266. Parent’s due process rights were not violated. — Where petitioner was not given notice or an opportunity to participate in two permanency hearings in an abuse and neglect proceeding; after the court’s approval of a permanency plan, the court terminated petitioner’s parental rights on the grounds of abandonment; and petitioner claimed that the court erred in terminating petitioner’s parental rights without first providing petitioner with notice and an opportunity to participate in the permanency hearings regarding abuse and neglect, which could have altered the court’s unchallenged findings of abandonment, petitioner did not suffer an abuse of due process because abuse and neglect are separate and independent grounds for termination of parental rights. State ex rel. CYFD v. Christopher B., 2014-NMCA-016. Where the parent claimed that the termination of the parent’s parental rights violated due process because the department failed to make reasonable efforts to assist the parent to adjust to the causes and conditions that led to the department taking custody of the child; specifically, the parent claimed that the department created a near- insurmountable obstacle to the parent’s adjustment by placing the child in a home in Las Vegas where the case was being managed and by failing to create a treatment plan that accommodated the parent’s learning disorder and cognitive limitations; the parent lived on Santa Fe; the department transported the child to Santa Fe twice a week for supervised visits and the parent was provided transportation to Las Vegas for additional visits; the parent was admitted to a residential treatment center where the parent underwent a psychiatric evaluation and a psychosocial assessment; and the department provided individual dialectical behavior therapy and emotional literacy and mindfulness training by a therapist who was aware of the parent’s history of ADHD and special education, the department made a reasonable efforts to assist and to accommodate the parent’s limitations and the parent was not denied due process. State ex rel. Children, Youth and Families Dep’t v. Laura J., 2013-NMCA-057, 301 P.3d 860, cert. denied, 2013-NMCERT-003. Mother's due process rights were not denied. — Where child was brought into children, youth and families department (CYFD) custody two months prior to mother pleading no contest to neglecting child due to her domestic violence, substance abuse, and mental health issues, and where, over the next several years, several attempts at visitation between child and mother took place, after which child exhibited negative, and sometimes violent, behavioral issues, and where mother argued that she was denied due process because she was excluded from certain proceedings where CYFD acted unilaterally and without judicial oversight and because the district court failed to comply with the six-month timeline set out in § 32A-4-25.1(D) NMSA 1978, mother's due process rights were not violated because mother failed to direct the court to any proceedings where she was not present, where she was unrepresented by counsel, where she was denied the opportunity to cross-examine CYFD's witnesses or present evidence of her own, or where she was denied an impartial decision-maker, and, moreover, mother does not allege that there is a reasonable likelihood that the outcome of the termination proceedings might have been different had CYFD complied with the statutory deadlines it allegedly violated. State ex rel. CYFD v. Josie G., 2021-NMCA- 063, cert. denied. Mother’s due process rights were not denied where witness’s testimony was aided by an outline prepared by attorney. — In a termination of parental rights proceeding, where the permanency planning worker from the children, youth and families department (CYFD) testified that she prepared for her testimony by reading an outline prepared by CYFD’s attorney which he emailed to her two days before the hearing, the district court did not err in denying mother’s motion to strike the witness’s testimony based on a violation of due process, because the outline, created from the witness’s family treatment plan and court reports, were part of the record and available to mother’s attorney, nothing in the record indicated that the outline or the witness’s testimony was inaccurate or incorrect, and the district court sufficiently corrected any alleged impropriety in CYFD’s handling of its witnesses by allowing for cross- examination and voir dire of the witness, and therefore the risk to mother of an erroneous deprivation of her parental rights was low. State ex rel. CYFD v. Rosalia M., 2017-NMCA-085. Witness’s testimony aided by an outline prepared by attorney did not result in structural error. — In a termination of parental rights proceeding, where the permanency planning worker from the children, youth and families department (CYFD) testified that she prepared for her testimony by reading an outline prepared by CYFD’s attorney which he emailed to her two days before the hearing, the witness’s testimony did not render the entire proceeding fundamentally unfair, because the witness only read and relied on the portion of the outline that pertained to her testimony, which was created from her own court reports and family treatment plan, and mother’s attorney was provided an opportunity to question and to cross-examine the witness which corrected any alleged impropriety in CYFD’s handling of its witnesses. State ex rel. CYFD v. Rosalia M., 2017-NMCA-085. Due process rights of incarcerated parent in termination hearing. — Because a fundamental liberty interest is implicated in proceedings involving the termination of parental rights, a parent who is incarcerated and is unable to attend a hearing on a petition to terminate parental rights is entitled to procedural due process, including the right to review and challenge the evidence presented against him and to present evidence on his behalf. State ex rel. Children, Youth & Families Dep't v. Ruth Anne E., 1999-NMCA-035, 126 N.M. 670, 974 P.2d 164. Incarcerated father’s due process rights were not violated where he was given the opportunity to participate in a termination hearing via telephone, despite his insistence that he be physically present in the courtroom. State ex rel. Children, Youth & Families Dep’t v. Christopher L., 2003-NMCA-068, 133 N.M. 653, 68 P.3d 199. Right of custodians to termination proceedings. — That the nonparent custodians of a child were "acting as parents" pursuant to Section 40-10-3H NMSA 1978 (now 40- 10A-102(13) NMSA 1978) because they had physical custody of the child and claimed a right to custody did not have applicability in a neglect or abuse case so as to entitle the custodians to the protections afforded in a termination of parent rights case. In re Agnes P., 1990-NMCA-091, 110 N.M. 768, 800 P.2d 202, cert. denied, 110 N.M. 749, 799 P.2d 1121. Plea of nolo contendere to abuse and neglect charge. — The trial court's taking judicial notice of a mother's nolo contendere plea in a prior abuse and neglect case did not deprive the mother of due process since the court heard testimony and made its findings based on the evidence presented, rather than simply relying on the prior adjudication. State v. Eventyr J., 1995-NMCA-087, 120 N.M. 463, 902 P.2d 1066. III. PROOF. Efforts of the department. — The court is justified in terminating parental rights where it is clear after several years of effort by the department that the child will not thrive, and the causes of neglect and abuse are unlikely to change in the foreseeable future. State ex rel. Human Servs. Dep't v. Penny J., 1994-NMCA-143, 119 N.M. 328, 890 P.2d 389, cert. denied, 119 N.M. 20, 888 P.2d 466 Evidence of negect of siblings. — Although child was taken into CYFD custody at the time of birth, and was therefore never in parents' care, the court could rely on evidence of neglect or abuse to the other children as a factor in determining whether parental rights to child should be terminated. State ex rel. Children, Youth & Families Dep't v. David F., Sr., 1996-NMCA-018, 121 N.M. 341, 911 P.2d 235, cert. denied, 121 N.M. 242, 910 P.2d 318. Parent's right to raise child to be considered. — While a court must give primary consideration to the physical, mental and emotional welfare and needs of the child, this cannot be done to the utter exclusion of consideration of the rights of a parent to raise her children. State ex rel. Dep't of Human Servs. v. Natural Mother, 1981-NMCA-103, 96 N.M. 677, 634 P.2d 699. Relative merits of parental environments not considered. — The process of making a determination of termination of parental rights does not include a comparison of the relative merits of the environments provided by the foster parents and by the natural parents. The only consideration is whether the environment provided for the children by the parents is and will be adequate. State ex rel. Dep't of Human Servs. v. Natural Mother, 1981-NMCA-103, 96 N.M. 677, 634 P.2d 699. The fact that a child might be better off in a different environment is not a basis for termination of parental rights. State ex rel. Department of Human Servs. v. Williams, 1989-NMCA-008, 108 N.M. 332, 772 P.2d 366 (Ct. App.), cert. denied, 108 N.M. 273, 771 P.2d 981 (1989). Failure to assist parents. — Where the department's treatment plans treated the parents as a unit with the goal of reunification of the family; one parent failed to make progress toward becoming an adequate parent; the other parent made positive progress; and the department did not provide a specific treatment plan or specifically alert the parent who was progressing of the consequences of staying with the parent who was not progressing, the court erred in terminating the parental rights of the parent who was progressing because there was no clear and convincing evidence that it was unlikely that the parent who was progressing would be able to properly parent the children in the forseeable future. State ex rel. Children, Youth & Families Dep't v. Joseph M., 2006-NMCA-029, 139 N.M. 137, 130 P.3d 198. Mere comparative analysis of prospective homes is improper in proceedings seeking to terminate parental rights. In re Doe, 1982-NMCA-094, 98 N.M. 340, 648 P.2d 798, cert. denied sub nom, Cook v. Brownfield, 98 N.M. 336, 648 P.2d 794. Futile efforts to preserve family not required. — When it becomes clear that preserving the family is not compatible with protecting the child, further efforts at preservation are not required. Further efforts to assist the parents are not required when there is a clear showing that they would be futile. In re Kenny F., 1990-NMCA-004, 109 N.M. 472, 786 P.2d 699, overruled on other grounds by In re Adoption of J.J.B., 1993- NMCA-145, 117 N.M. 31, 868 P.2d 1256. Advice regarding right to appointed counsel. — A district court must advise a parent in termination proceedings under the adoption provisions of the Children's Code that the parent is entitled to have counsel appointed if indigency can be established. The court's failure to advise a parent that the parent would be entitled to appointed counsel if the parent can establish indigency constitutes fundamental error. Chris L. v. Vanessa O., 2013-NMCA-107. Where, in an adoption proceeding, the petitioners sought to terminate the parental rights of the child's biological parent; the parent appeared in the proceeding pro se; the district court told the parent that the parent would be required to follow the rules and that the parent could hire an attorney at any time during the proceedings, but failed to advise the parent that the court would appoint counsel for the parent if the parent was indigent and requested counsel, the failure of the court to advise the parent that the parent would be entitled to appointed counsel if the parent could establish indigency constituted fundamental error. Chris L. v. Vanessa O., 2013-NMCA-107. "Reasonable efforts". — Sections 32A-4-2C, 32A-4-22C, and 32A-4-28B(2) NMSA 1978 are constitutional facially and as applied to a mother, whose parental rights were terminated without the state making reasonable efforts toward family reunification, where the mother had previously had parental rights terminated as to another child and no progress was evident in the mother's efforts to kick a four-year drug abuse problem. State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845. Abandonment by father does not mandate termination. — When a child has been abandoned by a father, i.e., when the parental relationship between father and child is nonexistent, it is not mandatory that the court terminate parental rights. The decision rests within the judicial discretion of the court. Wasson v. Wasson, 1978-NMCA-092, 92 N.M. 162, 584 P.2d 713. Abandonment during incarceration. — Whether "abandonment" has occurred during incarceration is a question of fact to be determined on a case by case basis. Not every act of a parent which results in incarceration, nor every criminal act perpetrated between parents, can be deemed to be abandonment as a matter of law. In re Doe, 1982-NMCA-183, 99 N.M. 278, 657 P.2d 134, cert. denied, 99 N.M. 358, 658 P.2d 443. Abandonment rests upon incarceration coupled with other factors such as parental neglect, lack of affection shown toward the child, failure to contact the child, financially support the child if able to do so, as well as disregard for the general welfare of the child. In re Doe, 1982-NMCA-183, 99 N.M. 278, 657 P.2d 134, cert. denied, 99 N.M. 358, 658 P.2d 433. Act of selling children constitutes abandonment of them as a matter of law. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. When father, in child's presence, murders child's mother, the district court may terminate the father's parental rights. In re Doe, 1982-NMCA-183, 99 N.M. 278, 657 P.2d 134, cert. denied, 99 N.M. 358, 658 P.2d 443. Summary judgment improper. — In termination proceeding, mother's contentions as to alleged constructive abandonment, her fitness as a parent, and the state's efforts to assist her in complying with rehabilitation plan were material factual issues which were sufficient to defeat state's summary judgment motion. State ex rel. Children, Youth & Families Dep't v. Erika M., 1999-NMCA-036, 126 N.M. 760, 975 P.2d 373. "Neglect" by noncustodial parent. — Termination of parental rights by reason of "neglect" requires a showing by clear and convincing evidence of culpability on the part of the parent through intentional or negligent disregard of the child's well-being and proper needs. If the parents are separated and living in different communities, in order to hold a noncustodial parent responsible for the neglect of the parent having actual physical custody of the child, it must be established that the noncustodial parent knew or should have known of the condition of the child, that the child was without proper care by the custodial parent because of the faults or habits of that parent, and when able to do so, to provide that care. In re Adoption of J.J.B., 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256, rev'd in part on other grounds, Roth v. Bookert, 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995). Department may not use psychologists' testimony where it sought examination. — If the human services department [health care authority department] induces a person to be examined and counseled by psychologists, something she would not do but for such inducement, the department is estopped by such conduct to use the psychologists' testimony. In re Doe, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510. State must prove one of specific statutory grounds. — In order to terminate a parent's rights, the state must plead and prove one of the specific grounds for termination set out in the statute. State ex rel. Dep't of Human Servs. v. Williams, 1989- NMCA-008, 108 N.M. 332, 772 P.2d 366, cert. denied, 108 N.M. 273, 771 P.2d 981. Judicial standard for terminating parental rights. — The court shall terminate parental rights with respect to a neglected child when the court finds by clear and convincing evidence that the conditions and causes of the neglect are unlikely to change in the foreseeable future despite reasonable efforts by the children, youth and families department to assist the parent in adjusting the conditions that render the parent unable to properly care for the child. State ex rel. Children, Youth & Families Dep’t v. Jerry K., 2015-NMCA-047, cert. denied, 2015-NMCERT-004. Where incarcerated father, beginning a thirty-five year sentence for sex crimes, conceded that his children were neglected pursuant to 32A-4-2E(4) NMSA 1978, in that he was unable to discharge his responsibilities to and for his children because of incarceration, and where the district court permitted father to provide evidence that he had given placement alternatives and information to the children, youth and families department (department) and evidence about whether the department made reasonable efforts to assist father, the district court did not err in concluding that the conditions and causes of the neglect were unlikely to change in the foreseeable future despite the department’s reasonable efforts to facilitate a treatment plan, and that it was in the children’s best interest to be adopted and not reunified with father. State ex rel. Children, Youth & Families Dep’t v. Jerry K., 2015-NMCA-047, cert. denied, 2015- NMCERT-004. Grounds for termination to be shown by clear and convincing evidence. — In proceedings seeking the termination of parental rights, the grounds for any attempted termination must be proven by clear and convincing evidence. The clear and convincing evidence standard requires proof stronger than a mere "preponderance" and yet something less than "beyond a reasonable doubt." In re Doe, 1982-NMCA-094, 98 N.M. 340, 648 P.2d 798, cert. denied sub nom. Cook v. Brownfield, 98 N.M. 336, 648 P.2d 794. Quantum of proof required concerning evidence as to parents' unfitness must be such as to clearly and convincingly show parents' unfitness. A mere preponderance of the evidence is insufficient. Huey v. Lente, 1973-NMSC-098, 85 N.M. 597, 514 P.2d 1093. Because of the fundamental rights involved in a termination proceeding, the burden of proof of clear and convincing evidence is something stronger than a mere preponderance and yet something less than beyond a reasonable doubt. State ex rel. Dep't of Human Servs. v. Natural Mother, 1981-NMCA-103, 96 N.M. 677, 634 P.2d 699. The findings to support termination must be supported by clear and convincing evidence. State ex rel. Dep't of Human Servs. v. Natural Mother, 1981-NMCA-103, 96 N.M. 677, 634 P.2d 699. A trial court's decision in termination of parental rights cases will be upheld if its findings are supported by clear and convincing evidence and if it applied the proper rule of law. State ex rel. Dep't of Human Servs. v. Minjares, 1982-NMSC-065, 98 N.M. 198, 647 P.2d 400. Evidence that the mother had continually neglected her children by failing to complete and progress in substance abuse treatment and by continuing to place herself in situations involving domestic violence and suspected criminal activity was sufficient to support a finding of neglect. State ex rel. Children, Youth & Families Dep't v. Vanessa C., 2000-NMCA-025, 128 N.M. 701, 997 P.2d 833, cert. denied, 128 N.M. 690, 997 P.2d 822. Clear and convincing evidence supported termination. — Where the parent was abusing drugs and physically neglecting the child; the child tested positive for opiates; the parent was unsuccessfully discharged from an addiction-recovery program; and the parent failed to keep home visit, therapy, and urinalyses appointments, tested positive for marijuana; failed to attend substance abuse group meetings; was not able to provide a safe and stable living environment for the parent or the child, failed to comply with the department’s treatment plan and to use the department’s recommended services, and lacked a commitment to the child, clear and convincing evidence supported termination of the parent’s parental rights. State ex rel. Children, Youth and Families Dep’t v. Laura J., 2013-NMCA-057, 301 P.3d 860, cert. denied, 2013-NMCERT-003. Separate finding of parental unfitness not required for termination. — Parental unfitness is inherent in a finding by the court of any of the statutory conditions: abandonment, neglect or abuse; and no separate showing or finding by the court with reference to unfitness is necessary. In re Adoption of J.J.B., 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995). Clear and convincing evidence necessary to support abandonment. — In proceedings seeking to terminate parental rights on grounds of abandonment, the court must be satisfied, by clear and convincing evidence, that the best interests of the child will be served by severing the parent-child relationship. In re Samantha D., 1987- NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert. denied, 106 N.M. 174, 740 P.2d 1158. Proof of abandonment. — To prove abandonment (1) parental conduct, evidencing a conscious disregard of obligations owed to the child, and (2) that such conduct led to the disintegration of the parent-child relationship must be established; evidence of the disintegration of the parent-child relationship is of no consequence if not caused by the parent's conduct. In re Adoption of J.J.B., 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995). The presumption of abandonment imposes on the parent against whom it is directed the burden of going forward to rebut or meet the presumption; however, it does not shift the burden of proof which remains on the person seeking termination of parental rights. In re Adoption of J.J.B., 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995). The presumption of abandonment that arrives through the statutory factors is completely rebutted by showing that a parent lacks responsibility for the destruction of the parent-child relationship. In re Adoption of J.J.B., 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995). Presumption of abandonment rebutted by evidence that parents did not cause disintegration of parent-child relationship. — In proceedings seeking to terminate parental rights on the grounds of abandonment, where the district court found all of the conditions set forth in 32A-4-28(B)(3) NMSA 1978, but did not enter any findings of fact or conclusions of law regarding the cause of the disintegration of the parent-child relationship between daughter and respondents, the district court erred in terminating parental rights on the grounds of abandonment, because a party seeking termination of parental rights has the burden of proving that the objective parental conduct is the cause of the destruction of the parent-child relationship, and in this case, there was no evidence that respondents caused the delays that contributed to the disintegration of the parent-child relationship with daughter; the suspension of visitation that lasted for several years, based on an unsubstantiated allegation that there may have been child pornography in the home, and the consequent disintegration of the parent-child relationship cannot be blamed on the respondents. State ex rel. CYFD v. Donna E., 2017-NMCA-088. Intent to abandon. — A parent need not have a subjective intent to abandon the child for abandonment to have occurred; rather, abandonment is defined by the outward behavior of the parent as perceived and interpreted by others and there is no inquiry into the parent's concealed and unexpressed intentions. In re Adoption of J.J.B., 1995- NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995). Authority of court after mother's consent declared invalid. — Since the mother's consent to adoption has been declared invalid in keeping with the best interests of the child, the trial court retains the power to determine custody in the absence of a legally valid consent, and it is within the authority of the trial court to continue the child in the custody of the couple seeking to adopt her. Although they lacked standing to petition the court for adoption, they were not left without remedy, since they did have standing to seek relief. In re Samantha D., 1987-NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert. denied, 106 N.M. 174, 740 P.2d 1158. Clear and convincing evidence that the conditions and causes of neglect and abuse were unlikely to change. — In termination of parental rights proceeding, there was clear and convincing evidence to prove that the conditions and causes of neglect and abuse were unlikely to change in the foreseeable future where father, due to his repeated incarcerations, was unable to participate in parenting classes, retain stable housing, follow the recommendations from his substance abuse and mental health assessments, and participate in scheduled visits with his children. State ex rel. CYFD v. Nathan H., 2016-NMCA-043, cert. denied. Evidence of conditions and causes of neglect and abuse. — Evidence sufficient to support finding that conditions and causes of neglect and abuse were unlikely to change. State ex rel. Human Servs. Dep't v. Wayne R.N., 1988-NMCA-048, 107 N.M. 341, 757 P.2d 1333. Incarceration. — Even though incarceration alone is not an appropriate reason to terminate parental rights, where the father was convicted of the murder of the mother, his subsequent long-term incarceration was sufficient to establish that the child was neglected, and that termination of his parental rights was justified. State ex rel. Children, Youth & Families Dep't v. Joe R., 1997-NMSC-038, 123 N.M. 711, 945 P.2d 76. Components of "unfit" mother not required findings by trial court. — Since the ultimate fact is that a mother is unfit, the trial court is not required to make findings as to the components of "unfit" because those components are not ultimate facts. State Health & Social Servs. Dep't v. Smith, 1979-NMCA-004, 93 N.M. 348, 600 P.2d 294, cert. denied, 92 N.M. 532, 591 P.2d 286 (decided under prior law). Appellate issue to determine substantial evidence of components of "unfit". — Having found the ultimate fact that the mother is unfit, the appellate issue does not involve the sufficiency of findings as to the components of "unfit"; rather, the appellate issue is whether there was substantial evidence of each of the components so that the finding of the ultimate fact was supported by the evidence. State Health & Social Servs. Dep't v. Smith, 1979-NMCA-004, 93 N.M. 348, 600 P.2d 294, cert. denied, 92 N.M. 532, 591 P.2d 286. Effect of abuse of sibling. — While abuse of a sibling may be insufficient to justify terminating parental rights, it is evidence that should be considered in determining whether a child has been placed in danger. State ex rel. Dep't of Human Servs. v. Tommy A. M., 1987-NMCA-043, 105 N.M. 664, 735 P.2d 1170. IV. SUFFICIENT EVIDENCE. Abandonment. — Where the children, youth and families department arranged a visit between the parent and the child, and the parent could not visit at the appointed time because the parent was incarcerated in Colorado; the child moved to Georgia to live with an aunt; when the parent was released from incarceration, the CYFD attempted to set up a home visit with the parent in Colorado, but the parent refused because the parent was traveling to Georgia; the CYFD attempted to set up visits between the child and the parent in Georgia, but could not reach the parent and the parent never attempted to reach the CYFD; when the parent returned to Colorado, the CYFD arranged for calls to the child at the aunt’s home and when the parent complained that the aunt wasn’t answering the calls and when the parent’s comments to the child became inappropriate, the CYFD set up standing calls to the child at the child’s therapists office; after the parent failed twice to reach the child at the therapist’s office, the parent stopped trying and had no contact with the child for five months, the evidence showed that the parent consciously disregarded the parent’s obligations to the child and as a result, the parent-child relationship disintegrated and the trial court properly terminated the parent’s parental rights based on abandonment. State ex rel. CYFD v. Benjamin O., 2009-NMCA-039, 146 N.M. 60, 206 P.3d 171. Sufficient evidence to support termination of parental rights. — Where father did not dispute that child was a neglected child, and where the children, youth and families department (department) presented evidence that father was not consistent in attending treatment or counseling services despite numerous referrals, that both the clinical therapist and psychologist indicated that services were needed, that father missed two substance abuse assessments and only completed a mental health assessment less than two weeks prior to the second termination hearing, that father’s participation in drug screenings was inconsistent, that father did not have stable housing as required by his treatment plan, and that father was inconsistent in his contact with the department even though he was ordered to maintain contact as part of his treatment plan, there was sufficient evidence for the district court to conclude that father had not alleviated the causes and conditions that led to child being taken into custody and that he would not do so in the foreseeable future, despite reasonable efforts by the department to assist father. The evidence supported termination of father’s parental rights in child. State ex rel. CYFD v. William C., Jr., 2017-NMCA-058. Sufficient evidence to support termination of mother's parental rights. — Where child was brought into children, youth and families department (CYFD) custody two months prior to mother pleading no contest to neglecting child due to her domestic violence, substance abuse, and mental health issues, and where, over the next several years, several attempts at visitation between child and mother took place, after which child exhibited negative, and sometimes violent, behavioral issues, and where mother argued that CYFD failed to present sufficient evidence that (1) the conditions and causes of the neglect and abuse were unlikely to change in the foreseeable future, (2) CYFD made reasonable efforts to assist mother in adjusting the conditions that rendered her unable to properly care for child, (3) termination of parental rights was in child's best interests, and (4) child was adoptable, the district court's decision to terminate parental rights were supported by clear and convincing evidence that child was severely traumatized and her state of mind was not conducive to reunification with mother, and it was reasonable for the district court to conclude that mother could not safely parent child based on evidence of child's continued pattern of severe behavioral issues following contact with mother. Clear and convincing evidence supported the district court's finding that the causes and conditions of neglect were not alleviated and were unlikely to change in the foreseeable future, that CYFD made reasonable efforts to reunify child and mother, and that termination of parental rights was in child's best interests. State ex rel. CYFD v. Josie G., 2021-NMCA-063, cert. denied. Termination of parental rights was in child’s best interest. — In a termination of parental rights case, where the children, youth and families department presented evidence of neglect based on father’s plea of no contest to neglect of child, evidence that mother’s contact with child was inconsistent, leading child to be confused about his future and causing child to become emotionally volatile, which resulted in acts of self- harm and low tolerance regarding conflict with peers, and evidence that father had shown an inability to follow the laws of the state of New Mexico and that his ability to change was uncertain, and where CYFD was not required to make reasonable efforts to assist father in adjusting the conditions that rendered him unable to care for the child because father stipulated to a finding that reunification with child was futile based on father’s potential penitentiary sentence on pending criminal charges, there was sufficient evidence to support the district court’s finding that it was in child’s best interests to terminate father’s parental rights. State ex rel. CYFD v. Raymond D., 2017- NMCA-067. Sufficient evidence. — Where although parent gave parent’s best effort to comply with a treatment plan, because of parent’s personality disorder and because of the psychological trauma and emotional damage that the children suffered while in the parent’s care, the parent could not safely parent the children and meet their psychological and emotional needs in the forseeable future; children had suffered from sexual and physical abuse; children had a long history of foster care and parent was emotionally depressed and not emotionally available to the children; although parent had obtained mental health treatment, the parent stopped treatment two years prior to the termination hearing; the parent did not exercise the parent’s visitation rights with one child for a two year period; and the parent sent another child back to the parent’s spouse knowing that the spouse had sexually abused the child, there was sufficient evidence to support termination of parental rights. State ex rel. Children, Youth & Families v. Athena H., 2006-NMCA-113, 140 N.M. 390, 142 P.3d 978. Sufficient evidence of reasonable efforts to assist a parent in adjusting conditions. — In a termination of parental rights proceeding that began after a two- month-old child was found to have sustained multiple fractures, including twenty-three rib fractures and four skull fractures in various stages of healing, facial bruising, liver lacerations, brain bleeding, and a possible detached retina while in the care of her mother and father, and where the children, youth and families department (department) prepared a family treatment plan for father, went over the treatment plan with father, detailing ways the father could comply with the plan, provided father with the department's contact information, and scheduled appointments for a court-ordered psychosocial assessment, and where father did not show up for the appointments, did not participate in the psychosocial assessment, made no attempts to contact the department when he was incarcerated and failed to contact the department during any period of time when he was out of custody, and where father failed to show any interest in his child's specialized needs that required a high level of care, the district court did not err in finding that the conditions and causes of child's neglect and abuse were unlikely to change in the foreseeable future despite reasonable efforts by the department under 32A-4-28(B)(2) NMSA 1978 and that termination was in the child's best interest. State ex rel. CYFD v. Keon H., 2018-NMSC-033, rev’g 2017-NMCA-004, 387 P.3d 313. There was clear and convincing evidence to support the district court's decision that CYFD made reasonable efforts to assist father. — In a case involving the termination of parental rights, where the district court concluded that it was unlikely that father's inability to parent his children would change in the foreseeable future despite the Children, Youth and Families Department's (CYFD) reasonable efforts to assist him, and where father claimed that CYFD did not make reasonable efforts to assist him in adjusting the conditions that rendered him unable to properly care for his children because CYFD did not provide him with specific contact information or direction to the services he was referred to and because he was not given sufficient time to work the case plan, there was clear and convincing evidence to support the district court's decision based on evidence that CYFD attempted to assist father repeatedly during the pendency of his case, but father repeatedly demonstrated an unwillingness to engage with his treatment plan, never participated in a psychological evaluation as ordered by the court, and missed twenty percent of all scheduled visitation and refused to acknowledge the circumstances that brought his children into CYFD custody. State ex rel. CYFD v. Brian F., 2023-NMCA-087. Evidence supported presumptive abandonment. — The evidence did not support a finding that the causes and conditions of the father’s neglect were unlikely to change in the foreseeable future where after the father was released from prison, he participated in all programs that CYFD recommended; he made substantial changes in this life to ensure the return of his children; and he held a stable job, established a support system, ceased to use drugs, and stayed clear of his past gang life, but the evidence supported the district court’s termination of the father’s parental rights based on the father’s presumptive abandonment of the children where a parent-child bond with one child had disintegrated and had never existed with the other child; the children lived in the home of foster parents for an extended time and developed a parent-child relationship with the foster parents; the father had limited contact with the children during his incarceration; and the father made minimal effort to have the children placed with relatives. State ex rel. Children, Youth & Families Dep't v. Hector C., 2008-NMCA- 079, 144 N.M. 222, 185 P.3d 1072, cert. denied, 2008-NMCERT-004, 144 N.M. 47, 183 P.3d 932. Substantial evidence. — Evidence which established that the father failed to be involved in the children's lives prior to his incarceration; his failure to provide a safe and stable home by dealing in drugs in their home; his decision to leave the children’s home when they were very young; his decision to violate the terms of his probation resulting in his incarceration; his failure to provide for the children or to protect them from the mother’s neglect both prior to and during his incarceration; his knowledge that the mother used drugs and had a history of neglecting her children; his failure to contact the children while incarcerated; the termination of the father’s parental rights to another child under similar circumstances; the father’s parole to Florida; CYFD continued to offer reunification services to the father while he was incarcerated and after he was paroled, was substantial evidence of neglect, that the father was unlikely to properly parent the children in the future, that the department made reasonable efforts to assist the father, that the father abandoned the children and that aggravated circumstance existed that made further efforts to assist the father unnecessary. State ex rel., Children, Youth & Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262, cert. denied, 2007-NMCERT-005, 141 N.M. 762, 161 P.3d 259. Abandonment found. — Termination of a mother's parental rights was proper since the evidence established a rebuttable presumption of abandonment which the mother failed to overcome. State ex rel. Children, Youth & Families Dep't v. John D., 1997- NMCA-019, 123 N.M. 114, 934 P.2d 308. Disintegration of parent-child relationship. — Substantial evidence beyond reasonable doubt supported court's termination of parental rights due to disintegration of parent-child relationship. Laurie R. v. N.M. Human Servs. Dep't, 1988-NMCA-055, 107 N.M. 529, 760 P.2d 1295. Evidence held sufficient to terminate parental rights. — Trial court's findings for termination of the mother's parental rights were supported by clear and convincing evidence, since the human services department [health care authority department] made reasonable efforts to assist her in improving her ability to care for her children, which efforts proved ultimately futile. State ex rel. Human Serv. Dep't v. Dennis S., 1989-NMCA-032, 108 N.M. 486, 775 P.2d 252, cert. denied, 108 N.M. 485, 775 P.2d 251. Termination of a mother's parental rights to four children was justified by clear and convincing evidence that the children were abused and neglected, the conditions and causes of the abuse and neglect were unlikely to change in the foreseeable future, and the children, youth and families department made reasonable efforts to assist the mother in adjusting the conditions which rendered her unable to properly care for the children. State v. Eventyr J., 1995-NMCA-087, 120 N.M. 463, 902 P.2d 1066. Where department made minimal but statutorily sufficient efforts to assist mother, but there were no signs that the parent-child relationship would likely change for the better in the foreseeable future, parental rights were rightfully terminated. In re Elizabeth H., 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, cert. denied, 132 N.M. 397, 49 P.3d 76. Trial court was justified in terminating parental rights to a four-year old child who had been adjudicated as a neglected child after being diagnosed as having nonorganic failure to thrive, where there was clear and convincing evidence to support the court's finding that the conditions and causes of the neglect were unlikely to change in the foreseeable future. State ex rel. Dep't of Human Servs. v. Williams, 1989-NMCA-008, 108 N.M. 332, 772 P.2d 366, cert. denied, 108 N.M. 273, 771 P.2d 981. V. INSUFFICIENT EVIDENCE. Insufficient evidence for termination of parental rights. — Where CYFD claimed that the parental rights of the petitioner should be terminated, because the petitioner failed to understand the harm that had been done to the petitioner’s children and because the petitioner failed to take responsibility for the causes that had prompted the department to take custody of the children; CYFD’s claims were based on the facts that had initially caused CYFD to take the petitioner’s children into custody; and since the time when CYFD had taken the children into custody, the petitioner had successfully addressed the petitioner’s alcohol and drug dependency, the petitioner regularly attended AA meetings, the petitioner made some, but not all, required child support payments, and the petitioner complied with all other requirements of CYFD’s treatment plan; the petitioner made positive behavioral changes and learned skills to manage emotional moods; the petitioner recognized that the petitioner had made some poor choices regarding the petitioner’s personal life that had affected the children; and the petitioner was openly affectionate with the children and the children were attached to the petitioner, the evidence did not support a determination that the causes and conditions of abuse and neglect were unlikely to change in the foreseeable future or that the petitioner had presumptively abandoned the children. State ex rel. Children, Youth & Families Dep't v. Lance K., 2009-NMCA-054, 146 N.M. 286, 209 P.3d 778, cert. denied, 2009-NMCERT-004, 146 N.M. 641, 213 P.3d 791. Insufficient evidence of "active efforts" requirement. — Where father’s parental rights to his three children were terminated following the district court’s adjudication of neglect, and where father argued that there was insufficient evidence to support the district court’s finding that the Children, Youth and Families Department (CYFD) made "active efforts" to reunite father and children and prevent the breakup of the Indian family, the undisputed evidence presented by CYFD of the efforts to reunite father and children was not sufficient to reasonably support the district court’s finding that CYFD made the "active efforts" to provide father with remedial services and rehabilitative programs designed to prevent the breakup of the family, where the evidence showed that CYFD had not provided active assistance in obtaining services for father, had not developed or proposed alternative ways of meeting father’s need for parenting classes in light of his difficulty with computer technology, had not facilitated in-person visits with children, had not monitored father’s progress, had not provided assistance to father in obtaining appropriate housing for him and children, and had not assessed either the home father ultimately found without CYFD assistance prior to the termination of his parental rights or father’s ability to care for children in his North Dakota home without creating a likelihood of serious emotional or physical damage to children. CYFD v. James M., 2023-NMCA-025, cert. denied. Insufficient evidence of abandonment. — Under 32A-4-28(B)(2) NMSA 1978, the children, youth and families department (CYFD) must establish that a child has been neglected or abused and that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future despite reasonable efforts by CYFD or other appropriate agency to assist the parent in adjusting the conditions that render the parent unable to properly care for the child, and CYFD must also demonstrate that termination serves the physical, mental and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated. State ex rel. CYFD v. Alfonso M.E., 2016-NMCA-021. Where children, youth and families department (CYFD) moved to terminate father’s parental rights one month after his deportation and discontinued its communication shortly thereafter, failed to introduce any other evidence in support of the conclusion that father’s past conduct demonstrated that the causes and conditions of neglect persisted at the time of trial, were unlikely to change, and currently impacted father’s ability to parent child, and failed to reevaluate father’s progress in ameliorating the causes and conditions of neglect, despite father’s efforts to comply with significant aspects of his treatment plan, CYFD’s subsequent presentation of incomplete evidence was not substantial evidence of a clear and convincing nature that justified termination of father’s parental rights under the Abuse and Neglect Act. The district court erred in terminating father’s parental rights for abandonment. State ex rel. CYFD v. Alfonso M.E., 2016-NMCA-021. Insufficient evidence to terminate parental rights of incarcerated parent. — Where the children, youth and families department (CYFD) filed a motion to terminate father’s parental rights based on father’s "unavailability", due to father’s incarceration for much of the time his child was in CYFD custody, and for failure to follow the treatment plan adopted by the district court, there was insufficient evidence to support the termination of parental rights, because CYFD’s actions were incomplete as to both implementing an appropriate treatment plan for father in facilitating interaction with him during his incarceration and when he was released from incarceration, and therefore CYFD failed in its burden to proffer sufficient evidence of reasonable efforts to assist father with reunification. State ex rel. CYFD v. Keon H., 2017-NMCA-004, cert. granted. Law reviews. — For note, "Family Law - A Limitation on Grandparental Rights in New Mexico: Christian Placement Service v. Gordon," see 17 N.M.L. Rev. 207 (1987). For article, "Incorporating the Law of Criminal Procedure in Termination of Parental Rights Cases: Giving Children a Voice Through Mathews v. Eldridge," see 32 N.M.L. Rev. 143 (2002). For note, "Family Law: New Mexico Expands Due Process Rights of Parents in Termination of Parental Rights: In re Ruth Anne E.", see 31 N.M. L. Rev. 439 (2001). Am. Jur. 2d, A.L.R. and C.J.S. references. — Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203. Parent's transsexuality as factor in award of custody of children, visitation rights, or termination of parental rights, 59 A.L.R.4th 1170. Validity and construction of surrogate parenting agreement, 77 A.L.R.4th 70. Parent's mental deficiency as factor in termination of parental rights - modern status, 1 A.L.R.5th 469. Parent's use of drugs as factor in award of custody of children, visitation rights, or termination of parental rights, 20 A.L.R.5th 534. Smoking as factor in child custody and visitation cases, 36 A.L.R.5th 377. Sufficiency of evidence to establish parent's knowledge or allowance of child's sexual abuse by another under statute permitting termination of parental rights for "allowing" or "knowingly allowing" such abuse to occur, 53 A.L.R.5th 499. Parents’ mental illness or mental deficiency as ground for termination of parental rights – constitutional issues, 110 A.L.R.5th 579. 32A-4-29. Termination procedure. A. A motion to terminate parental rights may be filed at any stage of the abuse or neglect proceeding by a party to the proceeding. B. The motion for termination of parental rights shall set forth: (1) the date, place of birth and marital status of the child, if known; (2) the grounds for termination and the facts and circumstances supporting the grounds for termination; (3) the names and addresses of the persons or authorized agency or agency officer to whom legal custody might be transferred; (4) whether the child resides or has resided with a foster parent who desires to adopt the child; (5) whether the motion is in contemplation of adoption; (6) the relationship or legitimate interest of the moving party to the child; and (7) whether the child is subject to the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978]. C. Notice of the filing of the motion, accompanied by a copy of the motion, shall be served by the moving party on all other parties, the foster parent, preadoptive parent or relative providing care for the child with whom the child is residing, foster parents with whom the child has resided for six months within the previous twelve months, the custodian of the child, any person appointed to represent any party and any other person the court orders. Service shall be in accordance with the Children's Court Rules for the service of motions, except that foster parents and attorneys of record in this proceeding shall be served by certified mail. The notice shall state specifically that the person served shall file a written response to the motion within twenty days if the person intends to contest the termination. Further notice shall not be required on a parent who has been provided notice previously pursuant to Section 32A-4-17 NMSA 1978 and who failed to make an appearance. D. When a motion to terminate parental rights is filed, the moving party shall request a hearing on the motion. The hearing date shall be at least thirty days, but no more than sixty days, after service is effected upon the parties entitled to service under this section. The moving party shall also file a motion for court-ordered mediation between the parent and any prospective adoptive parent to discuss an open adoption agreement. If an open adoption agreement is reached at any time before termination of parental rights, it shall be made a part of the court record. E. In any action for the termination of parental rights brought by a party other than the department and involving a child in the legal custody of the department, the department may: (1) litigate a motion for the termination of parental rights that was initially filed by another party; or (2) move that the motion for the termination of parental rights be found premature and denied. F. When a motion to terminate parental rights is filed, the department shall perform concurrent planning. G. When a child has been in foster care for not less than fifteen of the previous twenty-two months, the department shall file a motion to terminate parental rights, unless: (1) a parent has made substantial progress toward eliminating the problem that caused the child's placement in foster care; it is likely that the child will be able to safely return to the parent's home within three months; and the child's return to the parent's home will be in the child's best interests; (2) the child has a close and positive relationship with a parent and a permanent plan that does not include termination of parental rights will provide the most secure and appropriate placement for the child; (3) the child is fourteen years of age or older, is firmly opposed to termination of parental rights and is likely to disrupt an attempt to place the child with an adoptive family; (4) a parent is terminally ill, but in remission, and does not want parental rights to be terminated; provided that the parent has designated a guardian for the child; (5) the child is not capable of functioning if placed in a family setting. In such a case, the court shall reevaluate the status of the child every ninety days unless there is a final court determination that the child cannot be placed in a family setting; (6) grounds do not exist for termination of parental rights; (7) the child is an unaccompanied, refugee minor and the situation regarding the child involves international legal issues or compelling foreign policy issues; (8) adoption is not an appropriate plan for the child; or (9) the parent's incarceration or participation in a court-ordered residential substance abuse treatment program constitutes the primary factor in the child's placement in substitute care and termination of parental rights is not in the child's best interest. H. For purposes of this section, a child shall be considered to have entered foster care on the earlier of: (1) the date of the first judicial finding that the child has been abused or neglected; or (2) the date that is sixty days after the date on which the child was removed from the home. I. The grounds for any attempted termination shall be proved by clear and convincing evidence. J. When the court terminates parental rights, it shall appoint a custodian for the child and fix responsibility for the child's support. K. A judgment of the court terminating parental rights divests the parent of all legal rights and privileges and dispenses with both the necessity for the consent to or receipt of notice of any subsequent adoption proceeding concerning the child. A judgment of the court terminating parental rights shall not affect the child's rights of inheritance from and through the child's biological parents. L. When the court denies a motion to terminate parental rights, the court shall issue appropriate orders immediately. The court shall direct the parties to file a stipulated order and interim plan or a request for hearing within thirty days of the date of the hearing denying the termination of parental rights. History: 1978 Comp., § 32A-4-29, enacted by Laws 1993, ch. 77, § 123; 1997, ch. 34, § 10; 1999, ch. 77, § 11; 2001, ch. 315, § 1; 2003, ch. 108, § 1; 2005, ch. 189, § 52; 2009, ch. 239, § 49; 2022, ch. 41, § 55. ANNOTATIONS Cross references. — For termination procedures in adoption cases, see 32A-5-16 NMSA 1978. For termination of parental rights, see Rule 10-347 NMRA. For service of motions, see Rule 10-104 NMRA. For motion to terminate parental rights, see Rule 10-470 NMRA. For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed provisions related to Indian children which are now covered by the Indian Family Protection Act, and required that a motion for termination of parental rights set forth whether the child is subject to the Indian Family Protection Act; in Subsection B, Paragraph B(7), after "subject to the", deleted "federal Indian Child Welfare Act of 1978 and, if so" and added "Indian Family Protection Act", deleted Subparagraphs B(7)(a) through B(7)(c); in Subsection C, deleted "In any case involving a child subject to the federal Indian Child Welfare Act of 1978, notice shall also be sent by certified mail to the tribes of the child's parents and upon any 'Indian custodian' as that term is defined in 25 U.S.C. Section 1903(6)"; in Subsection I, deleted "In any proceeding involving a child subject to the federal Indian Child Welfare Act of 1978, the grounds for any attempted termination shall be proved beyond a reasonable doubt and shall meet the requirements set forth in 25 U.S.C. Section 1912(f)"; and deleted former Subsection K and redesignated former Subsections L and M as Subsections K and L, respectively. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2009 amendment, effective July 1, 2009, in Subsection D, added the third and fourth sentences; added Paragraph (9) of Subsection G; and added Subsection M. The 2005 amendment, effective June 17, 2005, deleted former Subsection A(1) through (3), which listed the persons and entities who could initiate a termination proceeding and provides that a motion to terminate parental rights may be made by a party to the proceeding; deleted the former requirement in Subsection B that a motion be signed, verified and filed with the court; deleted former Subsection C, which provided that a parent who has not been a party shall be named a party in the motion and shall be become a party unless the parent has not established a protected liberty interest with respect to the child; in Subsection C, provided that service shall be in accordance with the Children's Court Rules; deleted former Subsection E, which provided that if the identity or whereabouts of a person are unknown, the court could permit service by publication; deleted former Subsection F, which provided that after a motion is filed, the parent shall be advised of the right to counsel and that counsel shall be appointed upon request for any parent who cannot afford counsel or the interests of justice require the appointment; deleted former Subsection G, which provided that the court shall ensure that a guardian ad litem represents the child in all proceedings for termination of parental rights; in Subsection E, changed "custody" to "legal custody"; and in Subsection G(3), changed "thirteen years of age" to "fourteen years of age". The 2003 amendment, effective June 20, 2003, substituted "foster care" for "the custody of the department" preceding "for not less" in Subsection K; added present Subsection L and redesignated former Subsections L to O as present Subsections M to P. The 2001 amendment, effective July 1, 2001, inserted Subsections J and K and redesignated subsequent subsections. The 1999 amendment, effective July 1, 1999, in Subsection D, substituted "the foster parent, preadoptive parent or relative providing care for the child" for "foster parents" in the first sentence and updated a statutory reference in the last sentence. The 1997 amendment, effective July 1, 1997, added "unless the court determines that the parent has not established a protected liberty interest in his relationship with the child" at the end of Subsection C; in Subsection D, in the first sentence, substituted "all other parties" for "the parents of the child, any parent who has not previously been made a party to the proceeding", deleted "the department," following "custodian of the child," and deleted "including the child's guardian ad litem,", in the second sentence, substituted "service of motions" for "service of process", in the fourth sentence, substituted "sent by certified mail to" for "served upon" and added the last sentence; inserted "but no more than sixty days," in the second sentence in Subsection H; and made minor stylistic changes in Subparagraph B(7)(b) and in Subsection D. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-55 NMSA 1978 have been included in the annotations to this section. Sufficient evidence. — Where the parent physically abused and neglected the child’s siblings; the parent had a history of reoccurring domestic violence that involved drug and alcohol use; three incidences of domestic violence occurred when the child was in utero; the parent failed to follow a treatment plan that included drug testing and counseling to improve family relations and parenting skills; and the parent failed to participate in most of the remedial services and rehabilitative programs provided by the Children, Youth and Families Department that included a program for parenting skills, supervised visitations, drug and alcohol assessment and treatment, mental health and family relations assessment, transportation for the parent’s appointments to programs and services provided by the department, there was sufficient evidence to determine that the child was abused and neglected and that the department had made active efforts to provide remedial services and rehabilitative programs to prevent the family’s break up. State ex rel. Children, Youth & Families Dep't v. Arthur C., 2011-NMCA-022, 149 N.M. 472, 251 P.3d 729. Burden of proof for neglect determinations involving the federal Indian Child Welfare Act. — The grounds supporting termination of parental rights in cases involving the federal Indian Child Welfare Act, including the determination that a child has been abused or neglected under § 32A-4-28(B)(2) NMSA 1978, must be proved beyond a reasonable doubt. State ex rel. CYFD v. Maisie Y., 2021-NMCA-023, overruling in part State ex rel. CYFD v. Yodell B., 2016-NMCA-029, 367 P.3d 881. Where the children, youth and families department (CYFD) filed an abuse and neglect petition against appellant (mother), alleging that mother neglected her two-month old child, and where CYFD moved to terminate mother's parental rights to all four of her children, and where, following a termination of parental rights trial, the district court, taking judicial notice of mother's prior adjudications of neglect, terminated mother's parental rights but failed to tie its finding of neglect to evidence presented during the trial, the district court's reliance solely on mother's prior adjudications of abuse and neglect, which were made under a clear and convincing standard, to support its finding that the children were neglected, was inadequate to demonstrate that it made the necessary finding beyond a reasonable doubt to support termination of parental rights. State ex rel. CYFD v. Maisie Y., 2021-NMCA-023, overruling in part State ex rel. CYFD v. Yodell B., 2016-NMCA-029, 367 P.3d 881. "Active efforts," in a termination of parental rights proceeding, must be proved beyond a reasonable doubt. — In cases where the federal Indian Child Welfare Act (ICWA) applies, a showing of active efforts on the part of the children, youth & families department is required before a parent's parental rights may be terminated, and because § 32A-4-29(I) NMSA 1978, applies the beyond a reasonable doubt standard to the grounds for parental terminations in ICWA cases, New Mexico law requires that active efforts be proven beyond a reasonable doubt. State ex rel. CYFD v. Maisie Y., 2021-NMCA-023, overruling in part State ex rel. CYFD v. Yodell B., 2016-NMCA-029, 367 P.3d 881. Standard of proof for determinations of "active efforts" under the federal Indian Child Welfare Act. — Under the federal Indian Child Welfare Act (ICWA), a party seeking to terminate parental rights shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. "Active efforts" are intended primarily to maintain and reunite an Indian child with his or her family or tribal community and connotes a more involved and less passive standard than that of reasonable efforts. The proper standard of proof for determinations under 25 U.S.C. § 1912(d) of the ICWA is the clear and convincing standard, which is applicable to the underlying termination of parental rights proceedings under 32A-4- 29(I) NMSA 1978. State ex rel. CYFD v. Yodell B., 2016-NMCA-029, 367 P.3d 881, overruled in part by State ex rel. CYFD v. Maisie Y., 2021-NMCA-023. In a termination of parental rights case, where the evidence established that the children, youth and families department (department) permanency planning worker took affirmative steps of meeting with father to create a treatment plan, and referring father to a parenting class, but did little else to assist father in implementing the treatment plan, the department took a passive role by shouldering father with the burden of not only independently locating and obtaining services, but also ensuring the service providers were communicating with the department about his progress. The department did not present clear and convincing evidence that active efforts were made to prevent the breakup of father’s family. State ex rel. CYFD v. Yodell B., 2016-NMCA-029, 367 P.3d 881, overruled in part by State ex rel. CYFD v. Maisie Y., 2021-NMCA-023. Presumption of retroactivity. — Based on the importance of the especially significant interests at stake for children and parents in cases involving the Abuse and Neglect Act, Chapter 32A, Article 4 NMSA 1978, as well as the need to eliminate disparate outcomes in such cases simply by virtue of the position of a case on the judicial docket, the presumption of retroactivity applies to abuse and neglect cases. State ex rel. CYFD v. Ruben C., 2022-NMCA-063, cert. granted. Clarifications of New Mexico law regarding standards of proof in termination of parental rights cases subject to the federal Indian Child Welfare Act. — The New Mexico court of appeals decision in State ex rel. Children, Youth & Families Dep’t v. Maisie Y., 2021-NMCA-023 (Maisie Y.), which held that in cases subject to the federal Indian Child Welfare Act (ICWA), all grounds to terminate parental rights, including determinations of abuse and neglect, must be proven beyond a reasonable doubt, judicial notice of prior adjudications of abuse and neglect made under the clear and convincing evidence standard, without more, is insufficient, and the active efforts requirement of the ICWA must be proven beyond a reasonable doubt, will be applied retroactively. State ex rel. CYFD v. Ruben C., 2022-NMCA-063, cert. granted. Application of higher standards of proof required by State ex rel. CYFD v. Maisie Y. — Where father's parental rights were terminated prior to the New Mexico court of appeals decision in State ex rel. Children, Youth & Families Dep’t v. Maisie Y., 2021- NMCA-023 (Maisie Y.), which held that in cases subject to the federal Indian Child Welfare Act (ICWA), all grounds to terminate parental rights, including determinations of abuse and neglect, must be proven beyond a reasonable doubt, judicial notice of prior adjudications of abuse and neglect made under the clear and convincing evidence standard, without more, is insufficient, and the active efforts requirement of the ICWA must be proven beyond a reasonable doubt, the district court’s termination of father's parental rights required reversal, because it was possible that CYFD may not have met the higher standards of proof required by Maisie Y. State ex rel. CYFD v. Ruben C., 2022-NMCA-063, cert. granted. Judicial notice of case file. — If the district court feels it necessary to take judicial notice of all or part of a case file in a termination of parental rights proceeding, the court should state what information, specifically, is being judicially noticed and how the court intends to use the judicially noticed information. State ex rel. Children, Youth & Families Dep't v. Brandy S., 2007-NMCA-135, 142 N.M. 705, 168 P.3d 1129. Required filing of termination motion. — Barring exceptional circumstances, the Abuse and Neglect Act requires a termination motion to be filed when the child has been in foster care for 15 out of 22 months. State ex rel. Children, Youth & Families Dep’t. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796. Timing of hearing. — Failure to hold the termination of parental rights hearing within 60 days, as required by Subsection H (now D), does not mandate a dismissal of the motion to terminate parental rights. State ex rel. Children, Youth & Families Dep't v. Anne McD., 2000-NMCA-020, 128 N.M. 618, 995 P.2d 1060. No right to jury trial. — There is no right to a trial by jury in termination of parental rights proceedings provided by either the Children's Code or the state constitution. State ex rel. Children, Youth & Families Dep't v. T.J., 1997-NMCA-021, 123 N.M. 99, 934 P.2d 293, cert. denied, 122 N.M. 808, 932 P.2d 498. Due process rights of incarcerated parent in termination hearing. — Because a fundamental liberty interest is implicated in proceedings involving the termination of parental rights, a parent who is incarcerated and is unable to attend a hearing on a petition to terminate parental rights is entitled to procedural due process, including the right to review and challenge the evidence presented against him and to present evidence on his behalf. State ex rel. Children, Youth & Families Dep't v. Ruth Anne E., 1999-NMCA-035, 126 N.M. 670, 974 P.2d 164. Waiver of objection to venue. — Mother, who appealed district court's judgment terminating her parental rights, waived her claim of improper venue, where she failed to raise her venue-statute objection at a time when any error could have been cured promptly. In re Kenny F., 1990-NMCA-004, 109 N.M. 472, 786 P.2d 699, overruled on other grounds by In re Adoption of J.J.B., 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256. Lack of notice of issue of continuation of parental rights violates mother's due process rights. — Since the issue of termination of parental rights was not raised in the pleadings, nor properly tried and was mentioned for the first time after closing arguments, when counsel for the father made an oral motion that the parental rights of the mother be terminated, the procedural due process rights of the mother were violated as she was never given notice that the continuation of her parental rights was at issue, she did not have a full opportunity to prepare her case and, consequently, she was not given a full and fair hearing. In re Arnall, 1980-NMSC-052, 94 N.M. 306, 610 P.2d 193. Sufficiency of notice. — Although the summons served upon a father in a termination of parental rights action did not meet the requirements in the statute, there was no showing that the father was prejudiced by the various errors in the notice. Ronald A. v. State ex rel. Human Servs. Dep't, 1990-NMSC-071, 110 N.M. 454, 794 P.2d 371. Prior proceeding concerned with the fact of neglect is not a jurisdictional bar to a later, separate termination proceeding. In re Doe, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510. Since neglect proceedings do not result in final judgment on merits, the department is not barred under the "judgments" rule from later bringing termination proceedings. In re Doe, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510. Verification of pleadings. — Although the human services department [health care authority department] failed to obtain the court's permission prior to filing its amended petitions to terminate parental rights, the court granted permission to file the final amended petition and verification prior to the commencement of trial. Allowance of this amendment rectified any insufficiency in the earlier pleadings not being verified. The court, therefore, was not deprived of subject matter jurisdiction. Laurie R. v. N.M. Human Servs. Dep't, 1988-NMCA-055, 107 N.M. 529, 760 P.2d 1295. Authority of court after mother's consent declared invalid. — Since the mother's consent to adoption has been declared invalid in keeping with the best interests of the child, the trial court retains the power to determine custody in the absence of a legally valid consent, and it is within the authority of the trial court to continue the child in the custody of the couple seeking to adopt her. Although they lacked standing to petition the court for adoption, they were not left without remedy, since they did have standing to seek relief. In re Samantha D., 1987-NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert. denied, 106 N.M. 174, 740 P.2d 1158. Right to competent counsel. — The right of a parent to counsel includes the right to competent counsel. In a trial the judge has an obligation to facilitate the resolution of the issue of whether that parent has received effective assistance of counsel by holding an evidentiary hearing if he or she expresses concerns that merit such a hearing. In re James W.H., 1993-NMCA-028, 115 N.M. 256, 849 P.2d 1079, cert. denied sub nom. Hellums v. State, 115 N.M. 545, 854 P.2d 872. Right to counsel on appeal. — Mother had a right to court-appointed counsel on appeal of a decision terminating her parental rights and counsel had an obligation to present her issues in accordance with the guidelines set forth in State v. Franklin, 1967- NMSC-151, 78 N.M. 127, 428 P.2d 982. State ex rel. Children, Youth & Families Dep't v. Alice P., 1999-NMCA-098, 127 N.M. 664, 986 P.2d 460, cert. denied, 127 N.M. 391, 981 P.2d 1209. Rules of Civil Procedure apply in all proceedings to terminate parental rights. State ex rel. Children, Youth & Families Dep't v. Wendy T., 1994-NMCA-096, 118 N.M. 352, 881 P.2d 712. Summary judgment may be used to terminate parental rights where there are no issues of fact underlying the basis or termination. State ex rel. Children, Youth & Families Dep't v. Wendy T., 1994-NMCA-096, 118 N.M. 352, 881 P.2d 712. Termination of parental rights severs the parent’s support obligation. Aeda v. Aeda, 2013-NMCA-095, cert. granted, 2013-NMCERT-009. Where a divorce decree ordered respondent to pay monthly child support until respondent’s children reached majority, were emancipated or until further order of the court; petitioner subsequently filed for termination of respondent’s parental rights; respondent entered an appearance, but did not participate in the case; the termination order made no mention of alteration of the child support order; and petitioner sought to collect child support arrearages under the divorce decree, termination of respondent’s parental rights terminated respondent’s child support obligations. Aeda v. Aeda, 2013- NMCA-095, cert. granted, 2013-NMCERT-009. Law reviews. — For note, "Family Law: New Mexico Expands Due Process Rights of Parents in Termination of Parental Rights: In re Ruth Anne E.", see 31 N.M. L. Rev. 439 (2001). Am. Jur. 2d, A.L.R. and C.J.S. references. — Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203. 32A-4-30. Attorney fees. The court may order the department to pay attorney fees for the child's guardian ad litem or attorney if: A. the child is in the legal custody of the department; B. the child's guardian ad litem or the child, through the child's attorney: (1) requests in writing that the department move for the termination of parental rights; (2) gives the department written notice that if the department does not move for termination of parental rights, the guardian ad litem or the child, through the child's attorney, intends to move for the termination of parental rights and seek an award of attorney fees; (3) successfully moves for the termination of parental rights; and (4) applies to the court for an award of attorney fees; and C. the department refuses to litigate the motion for the termination of parental rights or fails to act in a timely manner. History: 1978 Comp., § 32A-4-30, enacted by Laws 1993, ch. 77, § 124; 2005, ch. 189, § 53. ANNOTATIONS The 2005 amendment, effective June 17, 2005, provided that the court may order the department to pay attorney fees to a child's attorney; in Subsection A, changed "custody" to "legal custody"; and in Subsections B and B(2), added "or the child, through the child's attorney". 32A-4-31. Permanent guardianship of a child. A. In proceedings for permanent guardianship, the court shall give primary consideration to the physical, mental and emotional welfare and needs of the child. Permanent guardianship vests in the guardian all rights and responsibilities of a parent, other than those rights and responsibilities of the natural or adoptive parent, if any, set forth in the decree of permanent guardianship. B. Any adult, including a relative or foster parent, may be considered as a permanent guardian, provided that the department grants consent to the guardianship if the child is in the legal custody of the department. An agency or institution may not be a permanent guardian. The court shall appoint a person nominated by the child, if the minor is fourteen years of age or older, unless the court finds the appointment contrary to the best interests of the child. C. The court may establish a permanent guardianship between a child and the guardian when the prospective guardianship is in the child's best interest and when: (1) the child has been adjudicated as an abused or neglected child; (2) the department has made reasonable efforts to reunite the parent and child and further efforts by the department would be unproductive; (3) reunification of the parent and child is not in the child's best interests because the parent continues to be unwilling or unable to properly care for the child; and (4) the likelihood of the child being adopted is remote or it is established that termination of parental rights is not in the child's best interest. History: 1978 Comp., § 32A-4-31, enacted by Laws 1993, ch. 77, § 125; 2005, ch. 189, § 54. ANNOTATIONS Cross references. — For the Kinship Guardianship Act, see 40-10B-1 NMSA 1978 et seq. The 2005 amendment, effective June 17, 2005, in Subsection B, changed "department's custody" to "legal custody of the department". 32A-4-32. Permanent guardianship; procedure. A. A motion for permanent guardianship may be filed by any party. B. A motion for permanent guardianship shall set forth: (1) the date, place of birth and marital status of the child, if known; (2) the facts and circumstances supporting the grounds for permanent guardianship; (3) the name and address of the prospective guardian and a statement that the person agrees to accept the duties and responsibilities of guardianship; (4) the basis for the court's jurisdiction; (5) the relationship of the child to the petitioner and the prospective guardian; and (6) whether the child is subject to the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978] and, if so, any additional requirements for that motion as provided pursuant to the Indian Family Protection Act. C. If the motion is not filed by the prospective guardian, the motion shall be verified by the prospective guardian. D. Notice of the filing of the motion, accompanied by a copy of the motion, shall be served by the moving party on any parent who has not previously been made a party to the proceeding, the parents of the child, foster parents with whom the child is residing, the foster parent, preadoptive parent or relative providing care for the child with whom the child has resided for six months, the child's custodian, the department, any person appointed to represent any party, including the child's guardian ad litem, and any other person the court orders provided with notice. Service shall be in accordance with the Children's Court Rules for the service of motions. Further notice shall not be required to a parent who has been provided notice previously pursuant to Section 32A-4-17 NMSA 1978 and who failed to make an appearance. E. The grounds for permanent guardianship shall be proved by clear and convincing evidence. F. A judgment of the court vesting permanent guardianship with an individual divests the biological or adoptive parent of legal custody or guardianship of the child, but is not a termination of the parent's rights. A child's inheritance rights from and through the child's biological or adoptive parents are not affected by this proceeding. G. Upon a finding that grounds exist for a permanent guardianship, the court may incorporate into the final order provisions for visitation with the natural parents, siblings or other relatives of the child and any other provision necessary to rehabilitate the child or provide for the child's continuing safety and well-being. H. The court shall retain jurisdiction to enforce its judgment of permanent guardianship. I. Any party may make a motion for revocation of the order granting guardianship when there is a significant change of circumstances, including: (1) the child's parent is able and willing to properly care for the child; or (2) the child's guardian is unable to properly care for the child. J. The court shall appoint a guardian ad litem for the child in all proceedings for the revocation of permanent guardianship if the child is under the age of fourteen. The court shall appoint an attorney for the child in all proceedings for the revocation of permanent guardianship if the child is fourteen years of age or older at the inception of the proceedings. K. The court may revoke the order granting guardianship when a significant change of circumstances has been proven by clear and convincing evidence and it is in the child's best interests to revoke the order granting guardianship. History: 1978 Comp., § 32A-4-32, enacted by Laws 1993, ch. 77, § 126; 1999, ch. 77, § 12; 2005, ch. 189, § 55; 2009, ch. 239, § 50; 2022, ch. 41, § 56. ANNOTATIONS Cross references. — For process in the Children's Court, see Rule 10-103 NMRA. For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, required that a motion for permanent guardianship set forth whether the child is subject to the Indian Family Protection Act, removed provisions related to the federal Indian Child Welfare Act of 1978, and provisions related to Indian children which are now covered by the Indian Family Protection Act; in Subsection B, Paragraph B(6), after "subject to the", deleted "federal Indian Child Welfare Act of 1978" and added "Indian Family Protection Act", and after "if so", added "any additional requirements for that motion as provided pursuant to the Indian Family Protection Act", and deleted Subparagraphs B(6)(a) through B(6)(c); in Subsection D, deleted "In a case involving a child subject to the federal Indian Child Welfare Act of 1978, notice shall also be sent by certified mail to the Indian tribes of the child's parents and to any 'Indian custodian' as that term is defined in 25 U.S.C. Section 1903(6)"; and in Subsection E, deleted "The grounds for permanent guardianship shall be proved beyond a reasonable doubt and meet the requirements of 25 U.S.C. Section 1912(f) in any proceeding involving a child subject to the federal Indian Child Welfare Act of 1978". Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2009 amendment, effective July 1, 2009, in Subsection J, after “permanent guardianship”, added the remainder of the sentence and added the last sentence. The 2005 amendment, effective June 17, 2005, in Subsection B, deleted the former requirement that an application had to be signed, verified and filed with the court; in Subsection D, provided that service shall be in accordance with the Children's Court Rules, that in a case involving a child subject to the Indian Child Welfare Act, notice shall also be sent by certified mail to the Indian tribes of the child's parents and that further notice shall not be required to a parent who has been provided with notice previously pursuant to Section 32A-4-17 NMSA 1978 or who has failed to make an appearance; in Subsection I, deleted the former qualification that a party to the abuse or neglect proceeding, the child or a parent of the child could make a motion; and in Subsection K, changed "change of circumstance" to "significant change of circumstance". The 1999 amendment, effective July 1, 1999, in Subsection D, substituted "the foster parent, preadoptive parent or relative providing care for the child" for "foster parents" in the first sentence, substituted "motions" for "process" in the second sentence, and made a minor stylistic change in the last sentence. 32A-4-33. Confidentiality; information; penalty. A. In investigations and proceedings alleging abuse or neglect, the department shall not disclose personal identifier information of the child or the child's parent, guardian or custodian, except as follows: (1) in the case of the fatality or near fatality of a child; (2) in cases in which a child is missing or abducted or the child is or may be in danger of serious injury or death unless immediate action is taken or there are other exigent circumstances, the department shall release to law enforcement and the nationally recognized organization that serves as the national clearinghouse and resource center for information about missing and exploited children as much personal identifier information as necessary to identify the child, a possible abductor or a suspect in an abuse or neglect case or to protect evidence of a crime against the child; (3) when a child or child's parent or guardian has been publicly identified by a person outside the department, but only that personal identifier information that has been publicly identified; or (4) to the persons enumerated in Subsection G of this section. B. Department information obtained during the course of an investigation into allegations of abuse or neglect shall be maintained by the department as required by federal law as a condition of the allocation of federal funds in New Mexico. The public release of department information shall be construed as openly as possible under federal and state law. C. Information released by the department that has not otherwise been publicly released shall be redacted as needed to safeguard personal identifier information of the child and the child's family. In a case in which a child or the child's family has been publicly identified through news reports, a lawsuit or other means, the department may respond publicly with factual and complete information about the actions the department has taken in the case. D. Except as provided in Subsections E, F and G of this section, information concerning a party to a neglect or abuse proceeding, including social records, diagnostic evaluations, psychiatric or psychological reports, videotapes, transcripts and audio recordings of a child's statement of abuse or medical reports incident to or obtained as a result of a neglect or abuse proceeding or that were produced or obtained during an investigation in anticipation of or incident to a neglect or abuse proceeding, shall be confidential and closed to the public. E. The department may release redacted information described in Subsection D of this section to a person who is conducting bona fide research or investigations, the results of which shall provide the department information on child abuse and neglect that would be useful to the department in developing policy and practice. F. In the case of a fatality, the department shall release all information described in Subsection D of this section to a person who is conducting bona fide research or investigations, the results of which shall provide the department information on child abuse and neglect that would be useful to the department in developing policy and practice. G. The information described in Subsection D of this section shall be disclosed without redaction to the parties and: (1) court personnel and persons or entities authorized by contract with the court to review, inspect or otherwise have access to information in the court's possession; (2) court-appointed special advocates appointed to the neglect or abuse proceeding; (3) the child's guardian ad litem; (4) the attorney representing the child in an abuse or neglect action, a delinquency action or any other action under the Children's Code [Chapter 32A NMSA 1978]; (5) department personnel and persons or entities authorized by contract with the department to review, inspect or otherwise have access to information in the department's possession; (6) any local substitute care review board or any agency contracted to implement local substitute care review boards; (7) law enforcement officials, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978; (8) district attorneys, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978; (9) any state government or tribal government social services agency in any state or when, in the opinion of the department, it is in the best interest of the child, a governmental social services agency of another country; (10) a foster parent, if the information is that of a child currently placed with that foster parent or of a child being considered for placement with that foster parent and the information concerns the social, medical, psychological or educational needs of the child; (11) school personnel involved with the child but only if the information concerns the child's social, medical or educational needs; (12) a grandparent, parent of a sibling, relative or fictive kin, if the information pertains to a child being considered for placement with that grandparent, parent of a sibling, relative or fictive kin and the information concerns the social, medical, psychological or educational needs of the child; (13) health care or mental health professionals involved in the evaluation or treatment of the child or of the child's parents, guardian, custodian or other family members; (14) protection and advocacy representatives pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991; (15) children's safehouse organizations conducting interviews of children on behalf of a law enforcement agency or the department; (16) representatives of the federal government or their contractors authorized by federal statute or regulation to review, inspect, audit or otherwise have access to information pertaining to neglect or abuse proceedings; (17) a person attending a meeting arranged by the department to discuss the safety, well-being and permanency of a child, when the parent or child, or parent or custodian on behalf of a child younger than fourteen years of age, has consented to the disclosure; (18) the office of the state medical investigator; (19) any other person, by order of the court, having a legitimate interest in the case or the work of the court; and (20) the attorney general and the office of child advocate and its employees and contractors, pursuant to the requirements of the Office of Child Advocate Act [32A- 30-1 to 32A-30-15 NMSA 1978], if the records are needed for the purpose of implementing that act. H. A party to a court proceeding relating to a department investigation into allegations of abuse and neglect may comment publicly as long as the party does not disclose personal identifier information that is still confidential regarding the child or the child's parent or guardian. I. A parent, guardian or custodian whose child has been the subject of an investigation of abuse or neglect where no petition has been filed shall have the right to inspect any medical report, psychological evaluation, law enforcement reports or other investigative or diagnostic evaluation; provided that any personal identifier information related to the reporting party or any other party providing information shall be deleted or redacted. The parent, guardian or custodian shall also have the right to the results of the investigation and the right to petition the court for full access to all department records and information, except that information the department finds would be likely to endanger the life or safety of a person providing information to the department. J. The department is not required by this section to disclose department information if the district attorney successfully petitions the children's court that disclosure would cause specific, material harm to a criminal investigation or prosecution. K. The department shall provide pertinent department information upon request to a prospective adoptive parent, foster parent or guardian if the information concerns a child for whom the prospective adoptive parent, foster parent or guardian seeks to adopt or provide care. L. A person may authorize the release of department information about the person's self but shall not waive the confidentiality of department information concerning any other person. M. The department shall provide a summary of the outcome of a department investigation to the person who reported the suspected child abuse or neglect in a timely manner no later than twenty days after the deadline for closure of the investigation. N. Whoever intentionally and unlawfully releases any information closed to the public pursuant to the Abuse and Neglect Act or releases or makes other unlawful use of information in violation of that act is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. O. The department may promulgate rules for implementing disclosure of records pursuant to this section and in compliance with state and federal law and the Children's Court Rules. P. Nothing in this section or Section 32A-4-33.1 NMSA 1978 limits the right of a person to seek documents or information through other provisions of law. Q. Nothing in this section applies to the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978], information concerning Indian children or Indian parents, guardians or custodians, as those terms are defined in that act, or investigations or proceedings pursuant to that act. History: 1978 Comp., § 32A-4-33, enacted by Laws 1993, ch. 77, § 127; 2005, ch. 189, § 56; 2009, ch. 239, § 51; 2016, ch. 54, § 8; 2022, ch. 41, § 57; 2025, ch. 13, § 17; 2025, ch. 156, § 11. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. For the federal Development Disabilities Assistance and Bill of Rights act, see 42 U.S.C. § 6000. For the federal Protection and Advocacy for Mentally Ill Individuals Act of 1991, see 42 U.S.C. § 10801. 2025 Multiple Amendments. — Laws 2025, ch. 13, § 17, effective July 1, 2025, and Laws 2025, ch. 156, § 11, effective June 20, 2025, enacted different amendments to this section that can be reconciled. Pursuant to 12-1-8 NMSA 1978, Laws 2025, ch. 156, § 11 as the last act signed by the governor is set out above and incorporates both amendments. The amendments enacted by Laws 2025, ch. 13, § 17 and Laws 2025, ch. 156, § 11 are described below. To view the session laws in their entirety, see the 2025 session laws on NMOneSource.com. The nature of the difference between the amendments is that Section 32A-4-33 NMSA 1978, as amended by Laws 2025, ch. 13, § 17, included the attorney general and office of child advocate, and their employees and contractors, as entities that may access confidential records for the purpose of implementing the Office of Child Advocate Act, and Laws 2025, ch. 156, § 11, updated confidentiality provisions related to the handling of child welfare information. Laws 2025, ch. 156, § 11, effective June 20, 2025, updated confidentiality provisions related to the handling of child welfare information; added new Subsections A through C and redesignated former Subsection A as Subsection D; in Subsection D, after the subsection designation, deleted "All records or" and added "Except as provided in Subsections E, F and G of this section"; added new Subsections E and F and redesignated former Subsection B as Subsection G; in Subsection G, in the introductory clause, after "shall be disclosed" deleted "only" and added "without redaction", and added a new Paragraph G(18); added new Subsection H and redesignated former Subsection C as Subsection I; added new Subsections J through M and redesignated former Subsections D and E as Subsections N and O, respectively; and added new Subsections O through Q. Laws 2025, ch. 13, § 17, effective July 1, 2025, included the attorney general and office of child advocate, and their employees and contractors, as entities that may access confidential records for the purpose of implementing the Office of Child Advocate Act; in Subsection B, added Paragraph B(19). The 2022 amendment, effective July 1, 2022, included tribal government social service agencies in the list of parties that have access to records concerning a party to a neglect or abuse proceeding, and removed "those persons or entities of an Indian tribe specifically authorized to inspect the records pursuant to the federal Indian Child Welfare Act of 1978 or any regulations promulgated thereunder" from the list of parties that have access to records concerning a party to a neglect or abuse proceeding; in Subsection B, Paragraph B(9), after "any state government", added "or tribal government", and deleted former Paragraph B(10) and redesignated former Paragraphs B(11) through B(19) as Paragraphs B(10) through B(18), respectively. The 2016 amendment, effective May 18, 2016, expanded permitted disclosure of confidential information regarding a neglect or abuse case to certain people or entities; in Subsection B, Paragraph (1), after "court personnel", added "and persons or entities authorized by contract with the court to review, inspect or otherwise have access to records or information in the court’s possession", in Paragraph (2), after "special advocates", added "appointed to the neglect or abuse proceedings", in Paragraph (5), after "department personnel", added "and persons or entities authorized by contract with the department to review, inspect or otherwise have access to records or information in the department’s possession", added new Paragraph (13) and redesignated former Paragraphs (13) through (15) as Paragraphs (14) through (16), respectively, in Paragraph (14), after "of the child", added "or of", in Paragraph (16), deleted the paragraph designation "(16)", added new Paragraphs (17) and (18) and designated the language from former Paragraph (16) as Paragraph (19). The 2009 amendment, effective July 1, 2009, in Paragraph (9) of Subsection B, after "agency in any state", added the remainder of the sentence; and deleted former Subsection E, which provided that when a child’s death is allegedly caused by abuse or neglect, the department may release information about the case after consulting with the district attorney. The 2005 amendment, effective June 17, 2005, in Subsection A, deleted the former qualification that the records be in the possession of the court or the department and provided that information as well as records concerning a party that are incident to or obtained as a result of a proceeding or that were produced during an investigation are confidential; in Subsection B, provided that records may be disclosed only to the parties and the persons listed in Subsection B(1) through (16); added the attorney representing a child in an abuse or neglect action, a delinquency action or any other action under the Children's Code in Subsection B(4) as a person to whom records may be disclosed; and added Subsection F, which provided that the department shall promulgate rules for the disclosure of records. In camera review of records. — Where defendant, who was charged with criminal sexual contact of a minor, had evidence suggesting that the victim had been interviewed a number of times by the children, youth and families department and had made unsubstantiated allegations of sexual abuse in the past; defendant sought to obtain records of the victim’s past interviews to establish defendant’s claim that as a result of the past interviews, the victim had learned how to respond to questions in a way that gave the victim’s allegations credence; and because there was no physical evidence of abuse of the victim, the state’s case rested on the victim’s credibility; defendant made a threshold showing of materiality sufficient to require the district court to conduct in camera review of the records of the victim’s prior allegations. State v. Garcia, 2013- NMCA-064, 302 P.3d 111, cert. denied, 2013-NMCERT-004. 32A-4-33.1. Fatalities; near fatalities; records release. A. As used in this section: (1) "near fatality" means an act that, as certified by a physician, including the child's treating physician, placed a child in a serious or critical medical condition; and (2) "personal identifier information" means: (a) a person's name; (b) all but the last four digits of a person's: 1) taxpayer identification number; 2) financial account number; 3) credit or debit card number; or 4) driver's license number; (c) all but the year of a person's date of birth; (d) a person's social security number; and (e) a person's street address, but not the city, state or zip code. B. After learning that a child fatality or near fatality has occurred and that there is reasonable suspicion that the fatality or near fatality was caused by abandonment, abuse or neglect, the department shall upon written request release the following information, if in the department's possession, within five business days: (1) for a fatality: (a) the name, age and gender of the child; (b) the date and location of the fatality; and (c) the cause of death, if known; (2) for a near fatality: (a) the age and gender of the child; and (b) the type and extent of injuries; (3) for either a fatality or near fatality: (a) whether the child is currently or has been in the custody of the department within the last five years or the child's family is currently or has been served or under investigation by the department within the last five years; (b) whether the child lived with a parent, guardian or custodian; was in foster care; was in a residential facility or detention facility; was a runaway; or had some other living arrangement; (c) whether an investigation is being conducted by the department or by a law enforcement agency, if known; (d) a detailed synopsis of prior reports of abuse or neglect involving the child, siblings or other children in the home, if applicable; and (e) actions taken by the department to ensure the safety of siblings, if applicable; and (4) any other information that is publicly known. C. Upon completion of a child abandonment, abuse or neglect investigation into a fatality or near fatality, if it is determined that abandonment, abuse or neglect caused the fatality or near fatality, the following documents shall be released upon written request: (1) a summary of the department's investigation; (2) a law enforcement investigation report, if in the department's possession; (3) the medical investigator's report, if in the department's possession; and (4) in the case of a fatality, the department's file on the child who died. D. Prior to releasing documents specified in Subsection C of this section, the department shall consult with the district attorney and shall redact: (1) information that, in the opinion of the district attorney, would cause specific material harm to a criminal investigation or prosecution; (2) personal identifier information related to a reporting party or any other party providing information and any other child living in the home; (3) information that is privileged, confidential or not subject to disclosure pursuant to Section 32A-4-33 NMSA 1978 or other state or federal law; and (4) in the case of a near fatality, personal identifier information for the child, parent, guardian, resource parent and any other child living in the home. E. If documents pursuant to this section have been released by the department, the department may comment on the case. F. Information released by the department consistent with the requirements of this section does not require prior notice to any other person. G. Nothing in this section shall be construed as requiring the department to obtain documents not in the abuse and neglect case file. H. A person disclosing abandonment, abuse or neglect case file information as required by this section shall not be subject to suit in civil or criminal proceedings for complying with the requirements of this section. I. The department shall continue to provide timely allowable information to the public on the investigation into a case of fatality or near fatality of a child, including a summary report that shall include: (1) actions taken by the department in response to the case, including changes in policies, practices, procedures and processes that have been made to address issues raised in the investigation of the case and any recommendations for further changes in policies, practices, procedures, processes and other rules or laws to address the issues; and (2) the information described in Subsection J or K of this section. J. If the summary report involves a child who was residing in the child's home, the report shall contain a summary of all of the following: (1) whether services pursuant to the Abuse and Neglect Act were being provided to the child, a member of the child's household or a person who had been arrested for abandonment, abuse or neglect of the child prior to the time of the fatality or near fatality and the date of the last contact between the person providing the services and the person receiving the services prior to or at the time of the fatality or near fatality; (2) whether the child, a member of the child's household or the person who had been arrested for abandonment, abuse or neglect of the child prior to the fatality or near fatality was the subject of a current or previous department report; (3) all involvement of the child's parents or the person who had been arrested for abuse or neglect of the child prior to the fatality or near fatality in a situation for which a department report was made or services provided pursuant to the Abuse and Neglect Act in the five years preceding the incident that culminated in the fatality or near fatality; and (4) any investigation pursuant to a department report concerning the child, a member of the child's household or the person who had been suspected of or arrested for the abandonment, abuse or neglect of the child or services provided to the child or the child's household since the date of the incident involving a fatality or a near fatality. K. If the summary report involves a child who was in out-of-home placement, the summary report shall include: (1) the name of the agency the licensee was licensed by; and (2) the licensing history of the out-of-home placement, including the type of license held by the operator of the placement, the period for which the placement has been licensed and a summary of all violations by the licensee and any other actions by the licensee or an employee of the licensee that constitute a substantial failure to protect and promote the health, safety and welfare of a child. L. Nothing in this section shall apply to the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978], information or records concerning Indian children or Indian parents, guardians or custodians or investigations or proceedings pursuant to that act. History: 1978 Comp., § 32A-4-33.1, as enacted by Laws 2009, ch. 239, § 52; 2025, ch. 156, § 12. ANNOTATIONS The 2025 amendment, effective June 20, 2025, defined the term "near fatality" as used in this section, required the children, youth and families department to release information about near fatalities, and required the department to provide timely allowable information to the public on investigations into fatalities and near fatalities, including a summary report; in the section heading, added "Fatalities; near fatalities" and after "records release" deleted "when a child dies"; added new Subsection A and redesignated former Subsection A as Subsection B; in Subsection B, added "or near fatality" after each occurrence of "fatality", after "caused by" added "abandonment", deleted former Paragraphs A(1) through A(4) and added new Paragraphs B(1) through B(4); deleted former Subsection B; in Subsection C, in the introductory clause, replaced each occurrence of "child's death" with "fatality or near fatality", after "determined that" added "abandonment", and after "released upon" added "written", and added new Paragraph C(4); in Subsection D, Paragraph D(2), after the paragraph designation, deleted "identifying" and added "personal identifier", and after "providing information and" added "any other child living in the home", and added Paragraph D(4); and added Subsections I through L.. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-4-33.2. Creation and maintenance of dashboard on department website; annual report. A. The department shall create and maintain a public, easily accessible and searchable dashboard on the department's website. The confidentiality of personal identifier information shall be safeguarded consistent with federal and state law. The dashboard shall be updated at least quarterly and shall include the data to be reported to the governor and the legislature. B. By February 1 of each year, the department shall submit a report to the governor and the legislature that includes the following data for the prior twelve months ending on December 31: (1) the number of fatalities and near fatalities of children in the custody of the department or as a result of abandonment, abuse or neglect when in the custody of a parent, guardian, custodian or other person; (2) the number of children in department custody and the average length of time in custody, including the number of in-state and out-of-state placements in which children are placed; (3) the number of children in foster care and the length of time in foster care or living with relatives or fictive kin; (4) the number of complaints received alleging abandonment, abuse or neglect; (5) the number of investigations that resulted from the complaints, the number of complaints accepted for investigation and not accepted for investigation and the identified reasons in the aggregate for not investigating a complaint; (6) the number of children removed from the custody of a parent, guardian, custodian or other person and the reasons for removals; (7) the number of children returned to a household from which they were removed; (8) the number of children placed in the custody of the department who have run away while in custody; (9) the number of cases in which families subject to court-ordered treatment plans or voluntary placement agreements have absconded with children placed in the custody of the department; (10) the number of adoptions and the number of adoptions for which funding was terminated prior to the child reaching the age of eighteen; (11) the number of children and cases transferred to the jurisdiction of Indian nations, tribes and pueblos pursuant to the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978]; and (12) any other information the department considers of interest to the public. C. Data shall be disaggregated by age, race, ethnicity, gender, disability status and geographic location. D. The report shall be published on the department's website. History: Laws 2025, ch. 156, § 13. ANNOTATIONS Effective dates. — Laws 2025, ch. 156 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. 32A-4-34. Duties of employees. All employees of the department shall be trained in their legal duties to protect the constitutional and statutory rights of children and families from the initial time of contact, during the investigation and throughout any treatment. History: Laws 2005, ch. 189, § 57. ANNOTATIONS Effective dates. — Laws 2005, ch. 189 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 17, 2005, 90 days after adjournment of the legislature. 32A-4-35. Appointment or change of educational decision maker. A. In all matters involving children alleged by the state to be abused or neglected, including proceedings to terminate parental rights, the children's court shall appoint an educational decision maker in every case. B. The children's court shall appoint an educational decision maker at the custody hearing; provided that the children's court: (1) may change the appointment of an educational decision maker upon motion of a party at any stage of the proceedings; and (2) shall review at each subsequent stage of the proceedings whether to continue or change the appointment of an educational decision maker for the child. C. The children's court shall appoint a respondent as the child's educational decision maker, unless the children's court determines that doing so would be contrary to the best interests of the child. If the children's court determines that no respondent should be appointed as the child's educational decision maker, the children's court shall appoint another qualified individual, taking into account the following: (1) whether the individual knows the child and is willing to accept responsibility for making educational decisions; (2) whether the individual has any personal or professional interests that conflict with the interests of the child; and (3) whether the individual is permitted to make all necessary educational decisions for the child, including decisions related to whether the child is a child with a disability under the federal Individuals with Disabilities Education Act. History: Laws 2017, ch. 64, § 3. ANNOTATIONS Effective dates. — Laws 2017, ch. 64 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 16, 2017, 90 days after the adjournment of the legislature. Cross references. — For the federal Individuals with Disabilities Education Act, see 20 U.S.C. § 1400. ARTICLE 4A Children's Advocacy Centers 32A-4A-1. Short title. This act [32A-4A-1 to 32A-4A-4 NMSA 1978] may be cited as the "Children's Advocacy Centers Act". History: Laws 2019, ch. 134, § 1. ANNOTATIONS Effective dates. — Laws 2019, ch. 134 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 14, 2019, 90 days after the adjournment of the legislature. 32A-4A-2. Definition. As used in the Children's Advocacy Centers Act, "center" means a children's advocacy center, which is an entity that provides a comprehensive multidisciplinary team response to allegations of child abuse or neglect in a neutral, child-friendly setting by representatives of the following fields and professions: A. child protective services; B. family and victim advocacy; C. forensic interviewers; D. law enforcement; E. medical examiners; F. behavioral health; and G. services related to those fields and professions listed in Subsections A through F of this section. History: Laws 2019, ch. 134, § 2. ANNOTATIONS Effective dates. — Laws 2019, ch. 134 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 14, 2019, 90 days after the adjournment of the legislature. The child protective services task force is not a public body subject to the Open Meetings Act. — The Open Meetings Act, 10-15-1 to 10-15-4 NMSA 1978, applies to any "public body" and the act provides that it applies to all meetings of a quorum of members of any board, commission, administrative adjudicatory body or other policymaking body of any state agency or any agency or authority of any county, municipality, district or political subdivision. The child protective services task force, which was created by a house joint memorial during the 2019 legislative session for the purpose of making recommendations to generally improve the safety and well-being of children in the care of the child protective services system, is not subject to the Open Meetings Act, because it is not a policymaking entity as it holds a purely advisory role and exists only to make recommendations to real policymakers. Applicability of Open Meetings Act to Child Protective Services Task Force (1/30/20), Att'y Gen. Adv. Ltr. 2020-01. 32A-4A-3. Children's advocacy centers; duties. A center shall: A. be an entity that is a private, incorporated agency, a hospital or a governmental entity; B. have a neutral, child-focused facility where forensic interviews with children take place; provided that all agencies shall have a place to interact with the child as investigative or treatment needs require; C. have a designated staff trained according to standards approved by the national children's alliance; D. have a multidisciplinary team established in accordance with the provisions of the Children's Advocacy Centers Act that meets on a regular basis, at least every other month; E. provide case tracking of child abuse cases seen through the center. Case tracking or data collected shall include: (1) the number of child abuse cases seen at the center; (2) demographic data; (3) the number of cases referred for prosecution; and (4) the number of cases referred for behavioral health services, medical examinations and other related services; F. provide medical examinations or mental health services at the center or provide referrals for medical examinations or mental health therapy provided by an agency not located at the center but with which the center has a memorandum of understanding or interagency agreement; G. provide family and victim advocacy services to a child and to a non-offending caregiver of the child; H. facilitate the provision of training of center staff and multidisciplinary team members; and I. adhere to the national children's alliance standards. History: Laws 2019, ch. 134, § 3. ANNOTATIONS Effective dates. — Laws 2019, ch. 134 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 14, 2019, 90 days after the adjournment of the legislature. 32A-4A-4. Multidisciplinary child abuse teams; establishment; membership; duties. A. The following persons shall comprise a multidisciplinary child abuse investigation team in each judicial district in the state: (1) the district attorney of the judicial district in which the team is created and established, or the district attorney's designee; (2) a representative from the protective services division of the children, youth and families department, appointed by the director of the division or the director's designee; (3) a representative from a center that exists in the judicial district in which the team is located; and (4) the following members, appointed by the agency head or designee of the following agencies: (a) a representative from each law enforcement agency within the judicial district; (b) medical personnel with expertise and certification in pediatric sexual assault, child physical abuse and neglect identification or treatment; (c) a mental health service provider with training and experience in evidence- supported trauma-focused cognitive behavioral therapy; and (d) a family or victim advocate from an agency designated for advocacy services in that judicial district. B. The following multidisciplinary child abuse investigation team members shall be present before a forensic interview can take place: (1) the center's forensic interviewer; and (2) when available and as appropriate: (a) a representative from law enforcement; and (b) the representative from the protective services division of the children, youth and families department. C. A multidisciplinary child abuse investigation team shall: (1) develop a written protocol for the investigation and prosecution of cases of child abuse and neglect in accordance with each member agency's requirements; (2) convene on a regular ongoing basis, at least every other month, for the purpose of conducting case tracking, case review and general business and considering proposed modifications to the team's existing protocol; and (3) train and provide technical assistance to team members, agencies and medical providers that investigate child abuse and neglect cases. History: Laws 2019, ch. 134, § 4. ANNOTATIONS Effective dates. — Laws 2019, ch. 134 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 14, 2019, 90 days after the adjournment of the legislature. ARTICLE 5 Adoptions ANNOTATIONS Compiler's notes. — Sections 32A-5-1 to 32A-5-45 NMSA 1978 were originally enacted as 32-5-1 to 32-5-45 NMSA 1978 by Laws 1993, ch. 77, §§ 128 to 172, but since the former provisions of the Residential Treatment Program Act were compiled at that location, the sections as enacted by Chapter 77 of Laws 1993 have been recompiled to Chapter 32A NMSA 1978 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under former law have been retained whenever possible. For the Adoption Act prior to 1993, see 40-7-29 NMSA 1978 on NMOneSource.com. 32A-5-1. Short title. Chapter 32A, Article 5 NMSA 1978 may be cited as the "Adoption Act". History: 1978 Comp., § 32A-5-1, enacted by Laws 1993, ch. 77, § 128; 2003, ch. 294, § 1; 2003, ch. 321, § 1. ANNOTATIONS Cross references. — For provisions of Safe Haven for Infants Act, see 24-22-1 NMSA 1978 et seq. For adult adoptions, see 40-14-1 to 40-14-15 NMSA 1978. The 2003 amendment, effective July 1, 2003, substituted "Chapter 32A" for "Chapter 32". Identical amendments to this section were enacted by Laws 2003, ch. 294, § 1, and Laws 2003, ch. 321, § 1. This section is set out as amended by Laws 2003, ch. 321, § 1. See 12-1-8 NMSA 1978. Equitable adoption. — New Mexico recognizes "equitable adoptions"; those that are inferred by the law in the absence of compliance with statutory requirements. However, this recognition will only be made when certain strict requirements have been satisfied, such as the formation of a legally valid agreement by the purported parent to adopt the child. Otero v. City of Albuquerque, 1998-NMCA-137, 125 N.M. 770, 965 P.2d 354. Prerequisite for wrongful death recovery. — Child who had not been legally adopted by decedent and could not establish a basis for equitable adoption could not recover in a wrongful death action based on the accident that killed decedent. Otero v. City of Albuquerque, 1998-NMCA-137, 125 N.M. 770, 965 P.2d 354. Law reviews. — For note, "Family Law - A Limitation on Grandparental Rights in New Mexico: Christian Placement Service v. Gordon," see 17 N.M.L. Rev. 207 (1987). Am. Jur. 2d, A.L.R. and C.J.S. references. — 2 Am. Jur. 2d Adoption § 1 et seq. Required parties in adoption proceedings, 48 A.L.R.4th 860. Action for wrongful adoption based on misrepresentation of child's mental or physical condition of parentage, 56 A.L.R.4th 375. Attorney malpractice in connection with services related to adoption of child, 18 A.L.R.5th 892. Adoption of child by same-sex partners, 27 A.L.R.5th 54. "Wrongful adoption" causes of action against adoption agencies where children have or develop mental or physical problems that are misrepresented or not disclosed to adoptive parents, 74 A.L.R.5th 1. 2 C.J.S. Adoption of Persons §§ 5 to 9. 32A-5-2. Purpose. The purpose of the Adoption Act is to: A. establish procedures to effect a legal relationship between a parent and adopted child that is identical to that of a parent and biological child; B. provide for family relationships that will give the adopted child protection and economic security and that will enable the child to develop physically, mentally and emotionally to the maximum extent possible; and C. ensure due process protections. History: 1978 Comp., § 32A-5-2, enacted by Laws 1993, ch. 77, § 129. ANNOTATIONS Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 40-7-29 NMSA 1978 have been included in the annotations to this section. Statutory proceeding. — Adoption, unknown at common law, is a creature of statute. Poncho v. Bowdoin, 2006-NMCA-013, 138 N.M. 857, 126 P.3d 1221. Purpose of statutes for adoption is to make provision for the welfare of children and the legislation should be liberally construed to effect that purpose. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. Adoption statutes accorded liberal construction. — Adoption statutes are enacted in favor of humanity and are to be accorded a liberal construction by the courts. Hahn v. Sorgen, 1946-NMSC-015, 50 N.M. 83, 171 P.2d 308. Construed to promote welfare of children. — The proper construction of New Mexico adoption statutes is such as will promote the welfare of children. Nevelos v. Railston, 1959-NMSC-013, 65 N.M. 250, 335 P.2d 573. Jurisdictional requirements to be strictly followed. — The power to adopt children was unknown to the common law; it is a creation of statute which may prescribe the conditions under which adoption may be legally effected. Thus, the jurisdictional requirements of the statute for this special proceeding must be strictly followed. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. Equitable adoption. — New Mexico courts have recognized the doctrine of equitable adoption. Poncho v. Bowdoin, 2006-NMCA-013, 138 N.M. 857, 126 P.3d 1221. Biological father cannot relinquish duties. — In the absence of a formal adoption under the Adoption Act, the biological father cannot voluntarily effect a relinquishment of his parental duties imposed upon him by law. Poncho v. Bowdoin, 2006-NMCA-013, 138 N.M. 857, 126 P.3d 1221. 32A-5-3. Definitions. As used in the Adoption Act: A. "accrediting entity" means an entity that has entered into an agreement with the United States secretary of state pursuant to the federal Intercountry Adoption Act of 2000 and regulations adopted by the United States secretary of state pursuant to that act, to accredit agencies and approve persons who provide adoption services related to convention adoptions; B. "adoptee" means a person who is the subject of an adoption petition; C. "adoption service" means: (1) identifying a child for adoption and arranging the adoption of the child; (2) arranging or assisting in the process of connecting or matching parents who may place a child for adoption with prospective adoptive parents; (3) providing counseling, advice or guidance related to a potential adoption; (4) receiving or disbursing funds or anything of value on behalf of a prospective adoptive parent or to a parent who may place or has placed a child for adoption; (5) securing termination of parental rights to a child or consent to adoption of the child; (6) performing a background study on a child and reporting on the study; (7) performing a home study on a prospective adoptive parent and reporting on the study; (8) making determinations regarding the best interests of a child and the appropriateness of an adoptive placement for the child; (9) performing post-placement monitoring of a child until an adoption is final; or (10) when there is a disruption before an adoption of a child is final, assuming custody of the child and providing or facilitating the provision of child care or other social services for the child pending an alternative placement of the child; D. "agency" means a person certified, licensed or otherwise specially empowered by law to place a child in a home in this or any other state for the purpose of adoption; E. "agency adoption" means an adoption when the adoptee is in the custody of an agency prior to placement; F. "acknowledged father" means a father who: (1) acknowledges paternity of the adoptee pursuant to the putative father registry, as provided for in Section 32A-5-20 NMSA 1978; (2) is named, with his consent, as the adoptee's father on the adoptee's birth certificate; (3) is obligated to support the adoptee under a written voluntary promise or pursuant to a court order; (4) has openly held out the adoptee as his own child by establishing a custodial, personal or financial relationship with the adoptee as follows: (a) for an adoptee under six months old at the time of placement: 1) has initiated an action to establish paternity; 2) is living with the adoptee at the time the adoption petition is filed; 3) has lived with the mother a minimum of ninety days during the two-hundred-eighty-day period prior to the birth or placement of the adoptee; 4) has lived with the adoptee within the ninety days immediately preceding the adoptive placement; 5) has provided reasonable and fair financial support to the mother during the pregnancy and in connection with the adoptee's birth in accordance with his means and when not prevented from doing so by the person or authorized agency having lawful custody of the adoptee or the adoptee's mother; 6) has continuously paid child support to the mother since the adoptee's birth in an amount at least equal to the amount provided in Section 40-4-11.1 NMSA 1978, or has brought current any delinquent child support payments; or 7) any other factor the court deems necessary to establish a custodial, personal or financial relationship with the adoptee; or (b) for an adoptee over six months old at the time of placement: 1) has initiated an action to establish paternity; 2) has lived with the adoptee within the ninety days immediately preceding the adoptive placement; 3) has continuously paid child support to the mother since the adoptee's birth in an amount at least equal to the amount provided in Section 40-4-11.1 NMSA 1978, or is making reasonable efforts to bring delinquent child support payments current; 4) has contact with the adoptee on a monthly basis when physically and financially able and when not prevented by the person or authorized agency having lawful custody of the adoptee; or 5) has regular communication with the adoptee, or with the person or agency having the care or custody of the adoptee, when physically and financially unable to visit the adoptee and when not prevented from doing so by the person or authorized agency having lawful custody of the adoptee; or (5) has established a parent-child relationship pursuant to Article 2 of the New Mexico Uniform Parentage Act [40-11A-201 to 40-11A-204 NMSA 1978]; G. "alleged father" means a person who alleges or is alleged to be a genetic parent or possible genetic parent of a child, but whose parentage has not been adjudicated. "Alleged father" does not include: (1) a presumed parent; (2) a person whose parental rights have been terminated or declared not to exist; or (3) a donor; H. "assisted reproduction" means a method of causing pregnancy other than sexual intercourse. "Assisted reproduction" includes: (1) intrauterine or vaginal insemination; (2) donation of eggs or sperm; (3) donation of embryos; (4) in-vitro fertilization and transfer of embryos; and (5) intracytoplasmic sperm injection; I. "confirmatory adoption" means an action in which a parent or parents of a child born through assisted reproduction seek to confirm parentage of the child and obtain a judgment of adoption; J. "consent" means a document: (1) signed by a biological parent whereby the parent grants consent to the adoption of the parent's child by another; (2) whereby the department or an agency grants its consent to the adoption of a child in its custody; or (3) signed by the adoptee if the child is fourteen years of age or older; K. "convention adoption" means: (1) an adoption by a United States resident of a child who is a resident of a foreign country that is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption; or (2) an adoption by a resident of a foreign country that is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of a child who is a resident of the United States; L. "counselor" means a person certified by the department to conduct adoption counseling in independent adoptions; M. "department adoption" means an adoption when the child is in the custody of the department; N. "donor" means a person who contributes a gamete or gametes or an embryo or embryos to another person for assisted reproduction or gestation, whether or not there is consideration for the contribution. "Donor" does not include a person who: (1) provides gametes for use in assisted reproduction with that person's spouse; (2) gives birth to a child by means of assisted reproduction, unless declared otherwise by a court pursuant to a surrogacy agreement; (3) is a parent of a child of assisted reproduction pursuant to Article 7 of the New Mexico Uniform Parentage Act [40-11A-701 to 40-11A-707 NMSA 1978]; or (4) is an intended parent pursuant to a surrogacy agreement; O. "foreign born child" means any child not born in the United States who is not a citizen of the United States; P. "former parent" means a parent whose parental rights have been terminated or relinquished; Q. "full disclosure" means mandatory and continuous disclosure by the investigator, agency, department or petitioner throughout the adoption proceeding and after finalization of the adoption of all known, nonidentifying information regarding the adoptee, including: (1) health history; (2) psychological history; (3) mental history; (4) hospital history; (5) medication history; (6) genetic history; (7) physical descriptions; (8) social history; (9) placement history; and (10) education; R. "independent adoption" means an adoption when the child is not in the custody of the department or an agency; S. "investigator" means an individual certified by the department to conduct pre- placement studies and post-placement reports; T. "office" means a place for the regular transaction of business or performance of particular services; U. "parent" means a person who has established a parent-child relationship; V. "parent-child relationship" means a relationship between a person and a child that is established by: (1) the person having given birth to the child; (2) an adjudication of the person's maternity or paternity; (3) adoption of the child by the person; (4) a presumption of parentage pursuant to Section 40-11A-204 NMSA 1978; (5) an effective acknowledgment of parentage by the person pursuant to Article 3 of the New Mexico Uniform Parentage Act [40-11A-301 to 40-11A-314 NMSA 1978], unless the acknowledgment has been rescinded or successfully challenged; or (6) the person's having consented to assisted reproduction pursuant to Article 7 of the New Mexico Uniform Parentage Act that resulted in the birth of the child; W. "parental rights" means all rights of a parent with reference to a child, including parental right to control, to withhold consent to an adoption or to receive notice of a hearing on a petition for adoption; X. "placement" means the selection of a family for an adoptee or matching of a family with an adoptee and physical transfer of the adoptee to the family in all adoption proceedings, except in adoptions filed pursuant to Paragraphs (1) and (2) of Subsection C of Section 32A-5-12 NMSA 1978, in which case placement occurs when the parents consent to the adoption, parental rights are terminated or parental consent is implied; Y. "post-placement report" means a written evaluation of the adoptive family and the adoptee after the adoptee is placed for adoption; Z. "pre-placement study" means a written evaluation of the adoptive family, the adoptee's biological family and the adoptee; AA. "presumed father" means: (1) the husband of the biological mother at the time the adoptee was born; (2) an individual who was married to the mother and either the adoptee was born during the term of the marriage or the adoptee was born within three hundred days after the marriage was terminated by death, annulment, declaration of invalidity or divorce; or (3) before the adoptee's birth, an individual who attempted to marry the adoptee's biological mother by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid and if the attempted marriage: (a) could be declared invalid only by a court, the adoptee was born during the attempted marriage or within three hundred days after its termination by death, annulment, declaration of invalidity or divorce; or (b) is invalid without a court order, the adoptee was born within three hundred days after the termination of cohabitation; BB. "record" means any petition, affidavit, consent or relinquishment form, transcript or notes of testimony, deposition, power of attorney, report, decree, order, judgment, correspondence, document, photograph, invoice, receipt, certificate or other printed, written, videotaped or tape-recorded material pertaining to an adoption proceeding; CC. "relinquishment" means the document by which a parent relinquishes parental rights to the department or an agency to enable placement of the parent's child for adoption; DD. "resident" means a person who, prior to filing an adoption petition, has lived in the state for at least six months immediately preceding filing of the petition for adoption or a person who has become domiciled in the state by establishing legal residence with the intention of maintaining the residency indefinitely; and EE. "stepparent adoption" means an adoption of the adoptee by the adoptee's stepparent when the adoptee has lived with the stepparent for at least one year following the marriage of the stepparent to the custodial parent. History: 1978 Comp., § 32A-5-3, enacted by Laws 1993, ch. 77, § 130; 1995, ch. 206, § 26; 2001, ch. 162, § 1; 2003, ch. 294, § 2; 2003, ch. 321, § 2; 2005, ch. 189, § 58; 2012, ch. 28, § 1; 2025, ch. 15, § 1. ANNOTATIONS Cross references. — For the federal Intercountry Adoption Act, see 42 U.S.C. § 14901 et seq. The 2025 amendment, effective June 20, 2025, revised the terms "acknowledged father" and "alleged father", and defined the terms "assisted reproduction", confirmatory adoption", "donor", "parent", and "parent-child relationship" as used in the Adoption Act; in Subsection F, added Paragraph F(5); in Subsection G, after "'alleged father' means" deleted "an individual whom the biological mother has identified as the biological father, but the individual has not acknowledged paternity or registered with the putative father registry as provided for in Section 32A-5-20 NMSA 1978" and added "a person who alleges or is alleged to be a genetic parent or possible genetic parent of a child, but whose parentage has not been adjudicated. 'Alleged father' does not include:", and added Paragraphs G(1) through G(3); added new Subsections H and I and redesignated former Subsections H through K as Subsections J through M, respectively; added a new Subsection N and redesignated former Subsections L through Q as Subsections O through T, respectively; and added new Subsections U and V and redesignated former Subsections R through Z as Subsections W through EE, respectively. Applicability. — Laws 2025, ch. 15, § 8 provided that Laws 2025, ch. 15 apply to actions commenced on or after June 20, 2025. The 2012 amendment, effective March 3, 2012, expanded the definition of "adoption service" and in Subsection C, added Paragraphs (2), (3) and (4). The 2005 amendment, effective June 17, 2005, defined "consent" in Subsection H(3) to include a document signed by the adoptee if the child is fourteen years of age or older and added the definition of "foreign born child" in Subsection L to mean a child not born in the United States who is a citizen of the United States. The 2003 amendment, effective July 1, 2003, inserted a new Subsection A; redesignated former Subsection A as Subsection B; inserted a new Subsection C; redesignated the subsequent subsections accordingly; added a new Subsection I; and redesignated the subsequent subsections accordingly. Laws 2003, ch. 294, § 2 and Laws 2003, ch. 321, § 2, enacted identical amendments to this section.The section was set out as amended by Laws 2003, ch. 321, § 2. See 12-1-8 NMSA 1978. The 2001 amendment, effective June 15, 2001, in Subsection D, deleted former Paragraph (5) and inserted and augmented those provisions in Paragraph (4); deleted former Subsection S, defining "putative father", and renumbered the remaining subsections accordingly. The 1995 amendment, effective July 1, 1995, added Subsections C, G, H, and W, and redesignated the remaining subsections accordingly; substituted "32A-5-2" for "32-5-20" in Subsections D, E, and S; in Subsection J, inserted "or petitioner" following "department", inserted "and after finalization of the adoption" following "proceeding", and inserted "history" in Paragraph (9); in Subsection O, substituted "32A-5-12" for "32- 5-12", and made minor stylistic changes throughout the section. Acknowledged father. — Where a biological father, who knew that the mother of his child was pregnant, did not register his paternity within ten days of the child’s birth or file a paternity action before an adoption petition was filed, the father was not an acknowledged father and his consent was not a prerequisite to the adoption of his child. Helen G. v. Mark J.H., 2008-NMSC-002, 143 N.M. 246, 175 P.3d 914. Time to initiate an action to establish paternity. — The legislature did not place time limitations on the initiation of a paternity action and a biological father's status as an acknowledged father does not turn on whether he initiated a paternity action prior to the time of the child's placement or prior to the filing of the adoption petition. Helen G. v. Mark J. H., 2006-NMCA-136, 140 N.M. 618, 145 P.3d 98, rev'd, 2008-NMSC-002, 143 N.M. 246, 175 P.3d 914. Time to initiate an action to establish paternity. — The legislature did not place time limitations on the initiation of a paternity action and a biological father’s status as an acknowledged father does not turn on whether he initiated a paternity action prior to the time of the child’s placement or prior to the filing of the adoption petition. Helen G. v. Mark J. H., 2006-NMCA-136, 140 N.M. 618, 145 P.3d 98, cert. granted, 2006- NMCERT-010, 140 N.M. 674, 146 P.3d 809. Full disclosure means mandatory and continuous disclosure, including health, psychological, mental, medication, education, and social histories. Young v. Van Duyne, 2004-NMCA-074, 135 N.M. 695, 92 P.3d 1269. 32A-5-3.1. Applicability of terms. To the extent practicable, any provision of the Adoption Act applicable to a father- child relationship applies to a mother-child relationship or parent-child relationship, and any provision of the Adoption Act applicable to a mother-child relationship applies to a father-child relationship or parent-child relationship. History: 1978 Comp., § 32A-5-3.1, enacted by Laws 2025, ch. 15, § 2. ANNOTATIONS Effective dates. — Laws 2025, ch. 15 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. 32A-5-4. Application of the federal Indian Child Welfare Act of 1978. The protections set forth in the federal Indian Child Welfare Act of 1978, including provisions concerning notice to the Indian child's tribe, transfer to tribal court and placement preferences, apply to all proceedings involving an Indian child under the Adoption Act. History: 1978 Comp., § 32A-5-4, enacted by Laws 1993, ch. 77, § 131. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. 32A-5-5. Indian child placement preferences. A. In any adoptive placement of an Indian child under state law, preference shall be given, in the absence of good cause to the contrary, to a placement with: (1) a member of the Indian child's extended family; (2) other members of the child's Indian tribe; or (3) other Indian families. B. An Indian child accepted for pre-adoptive placement shall be placed in the least restrictive setting which most approximates a family in which the child's special needs, if any, may be met. The Indian child shall also be placed within reasonable proximity to the Indian child's home, taking into account special needs of the Indian child. In any foster care or pre-adoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with: (1) a member of the Indian child's extended family; (2) a foster home licensed, approved and specified by the Indian child's tribe; (3) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or (4) an institution for children approved by the Indian tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs. C. If the placement preferences of this section are not followed or if the Indian child is placed in an institution, a plan shall be developed to ensure that the Indian child's cultural ties are protected and fostered. History: 1978 Comp., § 32A-5-5, enacted by Laws 1993, ch. 77, § 132. ANNOTATIONS Cross references. — For applicability of this section where an Indian child is taken into custody pursuant to the Safe Haven for Infants Act, see 24-22-1 NMSA 1978. 32A-5-6. Authority of the department. A. The department may adopt and promulgate necessary rules and forms for the administration of the Adoption Act, including rules for the assessment of fees. The rules shall not conflict with the provisions of the Adoption Act. B. The department has the authority to provide or request additional information from an investigator or an attorney representing any person involved in any action filed pursuant to the provisions of the Adoption Act. C. The department has the authority to intervene in any action filed pursuant to the provisions of the Adoption Act. The intervention shall be effected when legal counsel for the department files a motion for an entry of appearance and an appropriate response. D. The department shall be served by mail by the attorney for the petitioner with copies of all pleadings filed in any action pursuant to the provisions of the Adoption Act, except for copies of the petition for adoption, the request for placement and the decree of adoption, which shall be served as provided in Section 32A-5-7 NMSA 1978. E. The department is authorized to act as an accrediting entity on behalf of the state. F. The department may assess fees for the cost of accrediting an agency or approving a person in matters related to convention adoptions. The department shall establish the amount of the fees by rule and the fees shall be subject to approval by the United States secretary of state. The amount of the fees shall not exceed the cost of similar services provided by the department. History: 1978 Comp., § 32A-5-6, enacted by Laws 1993, ch. 77, § 133; 1995, ch. 206, § 27; 2003, ch. 294, § 3; 2003, ch. 321, § 3. ANNOTATIONS The 2003 amendment, effective July 1, 2003, rewrote Subsection A and added Subsections E and F. Laws 2003, ch. 294, § 3 and Laws 2003, ch. 321, § 3 enacted identical amendments to this section. The section was set out as amended by Laws 2003, ch. 321, § 3. See 12-1-8 NMSA 1978. The 1995 amendment, effective July 1, 1995, added "which shall be served as provided in Section 32A-5-7 NMSA 1978" at the end of Subsection D. 32A-5-7. Clerk of the court; duties. A. The clerk of the court shall file pleadings captioned pursuant to the provisions of Section 32A-5-9 NMSA 1978. The clerk of the court shall not file incorrectly captioned pleadings. B. The clerk of the court shall mail a copy of the request for placement to the department within one working day of the request for placement being filed with the court. The attorney for the person requesting placement shall provide to the clerk of the court a copy of the request for placement and a stamped envelope addressed to the department as specified in department rules. C. The clerk of the court shall mail a copy of the petition for adoption within one working day of the petition for adoption being filed with the court. The attorney for the petitioner shall provide to the clerk of the court a copy of the petition for adoption and a stamped envelope addressed to the department as specified in department rules. D. The clerk of the court shall mail a copy of the decree of adoption to the department within one working day of the entry of the decree of adoption. The attorney for the petitioner shall provide to the clerk of the court a copy of the decree of adoption and a stamped envelope addressed to the department as specified in department rules. E. The clerk of the court shall provide a certificate of adoption with an adoptee's new name. F. The attorney for the petitioner shall forward the certificate of adoption provided for in Subsection E of this section as follows: (1) for a person born in the United States, to the appropriate vital statistics office of the place, if known, where the adoptee was born; or (2) for all other persons, to the state registrar of vital statistics. History: 1978 Comp., § 32A-5-7, enacted by Laws 1993, ch. 77, § 134; 1995, ch. 206, § 28; 2005, ch. 189, § 59; 2022, ch. 41, § 58. ANNOTATIONS Cross references. — For the Federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act; and deleted former Subsection E and redesignated former Subsections F and G as Subsections E and F, respectively. The 2005 amendment, effective June 17, 2005, in Subsection F, provided that the clerk of the court shall provide a certificate of adoption with the adoptee's new name; and added Subsection G, which provided that the attorney for the petitioner shall forward the certificate of adoption as provided in Subsection G(1) and (2). The 1995 amendment, effective July 1, 1995, substituted "32A-5-9" for "32-5-9" in Subsection A and added the second sentence in Subsection E. 32A-5-8. Confidentiality of records. A. Unless the petitioner agrees to be contacted or agrees to the release of the petitioner's identity to the parent and the parent agrees to be contacted or agrees to the release of the parent's identity to the petitioner, the attorneys, the court, the agency and the department shall maintain confidentiality regarding the names of the parties, unless the information is already otherwise known. After the petition is filed and prior to the entry of the decree, the records in adoption proceedings shall be open to inspection only by the attorney for the petitioner, the department or the agency, any attorney appointed as a guardian ad litem or attorney for the adoptee, any attorney retained by the adoptee or other persons upon order of the court for good cause shown. B. All records, whether on file with the court, an agency, the department, an attorney or other provider of professional services in connection with an adoption, are confidential and may be disclosed only pursuant to the provisions of the Adoption Act. All information and documentation provided for the purpose of full disclosure is confidential. Documentation provided for the purpose of full disclosure shall remain the property of the person making full disclosure when a prospective adoptive parent decides not to accept a placement. Immediately upon refusal of the placement, the prospective adoptive parent shall return all full disclosure documentation to the person providing full disclosure. A prospective adoptive parent shall not disclose any confidential information received during the full disclosure process, except as necessary to make a placement decision or to provide information to a child's guardian ad litem or attorney or the court. C. All hearings in adoption proceedings shall be confidential and shall be held in closed court without admittance of any person other than parties and their counsel. D. A person who intentionally and unlawfully releases any information or records closed to the public pursuant to the Adoption Act or releases or makes other unlawful use of records in violation of that act is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. E. Prior to the entry of the decree of adoption, the parent consenting to the adoption or relinquishing parental rights to an agency or the department shall execute an affidavit stating whether the parent will permit contact or the disclosure of the parent's identity to the adoptee or the adoptee's prospective adoptive parents. History: 1978 Comp., § 32A-5-8, enacted by Laws 1993, ch. 77, § 135; 1995, ch. 206, § 29; 2005, ch. 189, § 60; 2009, ch. 239, § 53. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection A, in the last sentence, after "guardian ad litem", added "or attorney". Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, added Subsection D, which provided that any person who intentionally and unlawfully releases any information or records closed to the public or releases or makes other unlawful use of records is guilty of a petty misdemeanor. The 1995 amendment, effective July 1, 1995, added all of the language in Subsection B following the first sentence and made a minor stylistic change in Subsection D. Am. Jur. 2d, A.L.R. and C.J.S. references. — Restricting access to judicial records of concluded adoption proceedings, 103 A.L.R.5th 255. 32A-5-9. Caption. The caption for adoption proceedings shall be styled "In the Matter of the Adoption Petition of (Petitioner's Name)". History: 1978 Comp., § 32A-5-9, enacted by Laws 1993, ch. 77, § 136. ANNOTATIONS Cross references. — For captions of pleadings filed in the district courts, see Rule 1- 008.1 NMRA. For captions of pleadings and papers filed with the children's courts, see Rule 10-112 NMRA. 32A-5-10. Venue. A petition for adoption may be filed in any county where: A. a petitioner is a resident; B. the adoptee is physically present at the time the petition is filed; C. an office of the agency that placed the adoptee for adoption is located; or D. the department office from which the child was placed is located. History: 1978 Comp., § 32A-5-10, enacted by Laws 1993, ch. 77, § 137. 32A-5-11. Who may be adopted; who may adopt. A. Any child may be adopted. B. Residents who are one of the following may adopt: (1) any individual who has been approved by the court as a suitable adoptive parent pursuant to the provisions of the Adoption Act; and (2) a married individual without the individual's spouse joining in the adoption if: (a) the nonjoining spouse is a parent of the adoptee; (b) the individual and the nonjoining spouse are legally separated; or (c) the failure of the nonjoining spouse to join in the adoption is excused for reasonable circumstances as determined by the court. C. Nonresidents who meet the criteria of Subsection B of this section may adopt in New Mexico if the adoptee is a resident of New Mexico or was born in New Mexico but is less than six months of age and was placed by the department or an agency licensed by the state of New Mexico. History: 1978 Comp., § 32A-5-11, enacted by Laws 1993, ch. 77, § 138. ANNOTATIONS Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 40-7-33 NMSA 1978 have been included in the annotations to this section. Provision requiring residence as mandatory. — The provision requiring adopting persons to be residents of the state was mandatory and it limited jurisdiction over adoption proceedings to those brought by residents of New Mexico. Heirich v. Howe, 1946-NMSC-016, 50 N.M. 90, 171 P.2d 312. Since petitioners for adoption are nonresidents, the district court lacks the necessary jurisdiction and petition to adopt must be dismissed. Heirich v. Howe, 1946- NMSC-016, 50 N.M. 90, 171 P.2d 312 (decided under prior law). 32A-5-12. Placement for adoption; restrictions; full disclosure. A. No petition for adoption shall be granted by the court unless the adoptee was placed in the home of the petitioner for the purpose of adoption: (1) by the department; (2) by an appropriate public authority of another state; (3) by an agency; or (4) pursuant to a court order, as provided in Section 32A-5-13 NMSA 1978. B. The provisions of Subsection A of this section do not apply to a child in the department's custody who is being adopted pursuant to the provisions of the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978]. C. When an adoptee is not in the custody of the department or an agency, the adoption is an independent adoption and the provisions of this section and Section 32A- 5-13 NMSA 1978 shall apply, except when the following circumstances exist: (1) a stepparent of the adoptee seeks to adopt the adoptee and prior to the filing of the adoption petition, the adoptee has lived with the stepparent for at least one year since the marriage of the stepparent to the custodial parent and the family has received counseling, as provided for in Section 32A-5-22 NMSA 1978; (2) a relative within the fifth degree of consanguinity to the adoptee or that relative's spouse seeks to adopt the adoptee, and, prior to the filing of the adoption petition, the adoptee has lived with the relative or the relative's spouse for at least one year; or (3) a person designated to care for the adoptee in the will of the adoptee's deceased parent seeks to adopt the adoptee, and, prior to the filing of the adoption petition, the adoptee has lived with that person for at least one year. D. All placements shall be made by the department, an agency or the parent of the adoptee pursuant to Section 32A-5-13 NMSA 1978. E. In all adoptions, prior to any placement being made, the person making the placement shall provide full disclosure. History: 1978 Comp., § 32A-5-12, enacted by Laws 1993, ch. 77, § 139; 1995, ch. 206, § 30. ANNOTATIONS The 1995 amendment, effective July 1, 1995, added "full disclosure" in the section heading; in Paragraph (4) of Subsection A, substituted "32A-5-13" for "32-5-13"; in Subsection C, substituted "this section and Section 32A-5-13" for "Sections 32-5-12 and 32-5-13"; in Paragraph (1) of Subsection C, substituted "32A-5-22" for "32-5-22"; at the end of Subsection D, added "pursuant to Section 32A-5-13 NMSA 1978"; and added Subsection E. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 40-7-34 NMSA 1978 have been included in the annotations to this section. Legislative intent. — The obvious legislative intent is two-fold: (1) to restrict the unauthorized placement of children for adoption; and (2) to provide a means whereby the department or an authorized child placement agency could ensure the placement of adoptable children with individuals who have been found by competent authorities to be fit and proper as prospective adoptive parents. In re Doe, 1982-NMCA-094, 98 N.M. 340, 648 P.2d 798. Section not jurisdictional limit. — There was nothing in former Section 40-7-34A NMSA 1978 suggesting a limitation on the children's court's jurisdiction. Section 40-7- 34A NMSA 1978 was merely a statute that limited the court's power to grant a petition for adoption. If the party could not prove the facts necessary, then the statute was of no value to that party. Specifically, unless the foster parent could plead and prove that human services department [health care authority department] placed the children with her for adoption, she was not entitled to the right of adoption former Section 40-7-34A NMSA 1978 provided. In re Adoption of Francisco A., 1993-NMCA-144, 116 N.M. 708, 866 P.2d 1175. Adoption valid without filing a petition. — Where petitioner filed a request for placement, but did not file a petition for adoption, the biological parent consented to the adoption, and the district court had an opportunity to examine all of the information and evidence that would have been supplied by a petition, the failure to file a petition was not jurisdictional and the adoption decree was valid. In re Adoption of Rebecca M., 2008-NMCA-038, 143 N.M. 554, 178 P.3d 839. Duties of disclosure found in Subsection E. — Pre-adoption and adoption-related duties of disclosure are found in Subsection E of this section. Young v. Van Duyne, 2004-NMCA-074, 135 N.M. 695, 92 P.3d 1269. Full disclosure means mandatory and continuous disclosure, including health, psychological, mental, medication, education, and social histories. Young v. Van Duyne, 2004-NMCA-074, 135 N.M. 695, 92 P.3d 1269. Disclosure to adoptive parents. — Department had no duty to disclose the post- adoption information regarding the child to the adoptive parents. Young v. Van Duyne, 2004-NMCA-074, 135 N.M. 695, 92 P.3d 1269. Effect of finality of adoption. — There is no statute or regulation that creates any duty or responsibility of the department and its employees, after an adoption is finalized, with respect to supervision, oversight, operation or maintenance of the home into which a child is placed for adoption, after an adoption becomes final. Young v. Van Duyne, 2004-NMCA-074, 135 N.M. 695, 92 P.3d 1269. Electing to leave child with ex-spouse for extended period of time is not a "placement" for purposes of adoption. In re Doe, 1982-NMCA-094, 98 N.M. 340, 648 P.2d 798, cert. denied sub nom. Cook v. Brownfield, 98 N.M. 336, 648 P.2d 794. Failure to meet Adoption Act’s requirements requires reversal. — Where mother’s parental rights were terminated and her child was placed for adoption with child’s grandmother, the petition for adoption was invalid where the statutory prerequisites, that the children, youth and families department place the child with the child’s grandmother for the purpose of adoption or that the child live with the grandmother for at least one year, were not met. In re Adoption Petition of Darla D. v. Grace R., 2016-NMCA-093. Stepparent adoptions. — The one-year residency provision for stepparent adoptions is not jurisdictional in nature; it is a statutory prerequisite to stepparent adoption and, therefore, the father could not challenge the adoption decree on the basis that the court lacked jurisdiction because the one-year residency requirement was not met. In re Adoption of Webber, 1993-NMCA-099, 116 N.M. 47, 859 P.2d 1074. Foster placement established residence. — The fact that children had lived in their aunt's home for a year, having been placed there by their mother under a foster placement, did not prevent a finding that they were "residing" with petitioning-aunt. In re Adoption of Awtrey, 1992-NMCA-118, 114 N.M. 594, 844 P.2d 844. 32A-5-13. Independent adoptions; request for placement; placement order; certification. A. When a placement order is required, the petitioner shall file a request with the court to allow the placement. An order permitting the placement shall be obtained prior to actual placement. B. Only a pre-placement study that has been prepared or updated within one year immediately prior to the date of placement, approving the petitioner as an appropriate adoptive parent, shall be filed with the court prior to issuance of a placement order, except as provided in Subsection C of Section 32A-5-12 NMSA 1978. C. In order for a person to be certified to conduct pre-placement studies, the person shall meet the standards promulgated by the department. D. The pre-placement study shall be conducted by an agency or a person certified by the department to conduct the study. A person or agency that wants to be certified to perform pre-placement studies shall file documents verifying their qualifications with the department. The department shall publish a list of persons or agencies certified to conduct a pre-placement study. If necessary to defray additional costs associated with compiling the list, the department may assess and charge a reasonable administrative fee to the person or agency listed. E. When a person or agency that wants to be certified to perform pre-placement studies files false documentation with the department, the person or agency shall be subject to the provisions of Section 32A-5-42 NMSA 1978. F. A request for placement shall be filed and verified by the petitioner and shall allege: (1) the full name, age and place and duration of residence of the petitioner and, if married, the place and date of marriage; (2) the date and place of birth of the adoptee, if known, or the anticipated date and place of birth of the adoptee; (3) a detailed statement of the circumstances and persons involved in the proposed placement; (4) if the adoptee has been born, the address where the adoptee is residing at the time of the request for placement; (5) if the adoptee has been born, the places where the adoptee has lived within the past three years and the names and addresses of the persons with whom the adoptee has lived. If the adoptee is in the custody of an agency or the department, the address shall be the address of the agency or the county office of the department from which the child was placed; (6) the existence of any court orders that are known to the petitioner and that regulate custody, visitation or access to the adoptee, copies of which shall be attached to the request for placement as exhibits; if copies of any such court orders are unavailable at the time of filing the request for placement, the copies shall be filed prior to the issuance of the order of placement; (7) that the petitioner desires to establish a parent and child relationship between the petitioner and the adoptee and that the petitioner is a fit and proper person able to care and provide for the adoptee's welfare; (8) the relationship, if any, of the petitioner to the adoptee; (9) whether the adoptee is subject to the Indian Family Protection Act [32A- 28-1 to 32A-28-42 NMSA 1978], and, if so, the petition shall allege the actions taken to comply with the Indian Family Protection Act and all other allegations required pursuant to that act; (10) whether the adoption is subject to the Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978] and what specific actions have been taken to comply with the Interstate Compact on the Placement of Children; and (11) the name, address and telephone number of the agency or investigator who has agreed to do the pre-placement study. G. The request for placement shall be served on all parties entitled to receive notice of the filing of a petition for adoption, as provided in Section 32A-5-27 NMSA 1978. An order allowing placement may be entered prior to service of the request for placement. H. A hearing and the court decision on the request for placement shall occur within thirty days of the filing of the request. I. As part of any court order authorizing placement under this section, the court shall find whether the pre-placement study complies with Section 32A-5-14 NMSA 1978 and that the time requirements concerning placement set forth in this section have been met. History: 1978 Comp., § 32A-5-13, enacted by Laws 1993, ch. 77, § 140; 1995, ch. 206, § 31; 2001, ch. 162, § 2; 2005, ch. 189, § 61; 2022, ch. 41, § 59. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act, and required that a request for placement set forth whether the adoptee is subject to the Indian Family Protection Act, and, if so, the request must set forth the actions taken to comply with the Indian Family Protection Act; in Subsection C, deleted "If the child is an Indian child, the person shall meet the standards set forth in the federal Indian Child Welfare Act of 1978"; and in Subsection F, Paragraph F(9) deleted two occurrences of "federal Indian Child Welfare Act of 1978" and added "Indian Family Protection Act. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2005 amendment, effective June 17, 2005, in Subsection B, provided that only a pre-placement study that has been prepared or updated within one year immediately prior to the date of placement shall be filed with the court. The 2001 amendment, effective June 15, 2001, in Subsection A, deleted the former second sentence, which read "The request shall be filed at least thirty days prior to an adoptive placement in an independent adoption proceeding"; inserted the last sentence of Subsection G; and deleted the former last two sentences of Subsection H, which contained provisions for scheduling a hearing sooner than thirty days after filing a request. The 1995 amendment, effective July 1, 1995, substituted "32A-5-12" for "32-5-12" in Subsection B, substituted "subject to" for "sentenced pursuant to" and "32A-5-42" for "32-5-42" in Subsection E, substituted "32A-5-27" for "32-5-27" in Subsection G, substituted "32A-5-14" for "32-5-14" in Subsection I, and made minor stylistic changes throughout the section. Failure to file a petition for adoption. — The failure to file a petition for adoption is not jurisdictional and does not render an adoption decree void. In re Adoption of Rebecca M., 2008-NMCA-038, 143 N.M. 554, 178 P.3d 839. Requirement to set forth information. — Former Section 40-7-34 NMSA 1978 required that an affidavit setting forth certain facts be filed with the petition. In this case, those facts were set forth in the petition itself, and the petition was verified by the adoptive parents. This constituted compliance with the statute. In re Adoption of Francisco A., 1993-NMCA-144, 116 N.M. 708, 866 P.2d 1175. 32A-5-14. Pre-placement study. A. The pre-placement study shall be performed as prescribed by department regulation and shall include at a minimum the following: (1) an individual interview with each petitioner; (2) a joint interview with both petitioners; if a joint interview is not conducted, an explanation shall be provided in the pre-placement study; (3) a home visit, which shall include an interview with the petitioner's children and any other permanent residents of the petitioner's home; (4) an interview with the adoptee, if age appropriate; (5) an individual interview with each of the adoptee's parents; if a parent is not interviewed, an explanation shall be provided in the pre-placement study; (6) full disclosure to the petitioner; (7) exploration of the petitioners' philosophy concerning discussion of adoption issues with the adoptee; (8) the initiation of a criminal records check of each petitioner; (9) a medical certificate dated not more than one year prior to any adoptive placement assessing the petitioner's health as it relates to the petitioner's ability to care for the adoptee; (10) a minimum of three letters of reference from individuals named by the petitioner or memoranda of the dates and contents of personal contacts with the references; (11) a statement of the capacity and readiness of the petitioner for parenthood and the petitioner's emotional and physical health and ability to shelter, feed, clothe and educate the adoptee; (12) verification of the petitioner's employment, financial resources and marital status; (13) a report of a medical examination performed on the adoptee within one year prior to the proposed adoptive placement; (14) a statement of the results of any prior pre-placement study or initiation of a pre-placement study, if any, of the petitioners done by any person; and (15) a copy of proof of certification by the department for the investigator to conduct pre-placement studies or, if the preparer of the pre-placement study is out-of- state, the preparer shall attach a statement setting forth qualifications that are equivalent to those required of an investigator pursuant to the provisions of Section 32A-5-13 NMSA 1978 and department regulations. B. The pre-placement study shall be completed at the cost of the petitioner. C. Unless directed by the court, a pre-placement study is not required in cases in which the child is being adopted by a stepparent, a relative or a person named in the child's deceased parent's will pursuant to Section 32A-5-12 NMSA 1978. D. The pre-placement study shall be filed with the court. E. The requirements of this section shall not apply to confirmatory adoptions. History: 1978 Comp., § 32A-5-14, enacted by Laws 1993, ch. 77, § 141; 1995, ch. 206, § 32; 2025, ch. 15, § 3. ANNOTATIONS The 2025 amendment, effective June 20, 2025, provided that the requirements for a pre-placement study do not apply to confirmatory adoptions; and added Subsection E. The 1995 amendment, effective July 1, 1995, deleted former Paragraph (14) of Subsection A relating to a statement documenting the adoptee's family background and redesignated the remaining paragraphs accordingly, substituted "32A-5-13" for "32-5- 13" in Paragraph (15) of Subsection A, and added Subsections C and D. 32A-5-14.1. Criminal history records check; background checks. A. A nationwide criminal history records check shall be conducted on a person who files a petition to adopt a child, on prospective foster parents and on other adults residing in the prospective adoptive or foster parent's household. A person who files a petition to adopt a child shall provide the department with a set of fingerprints. The department is authorized to use the set of fingerprints to conduct a background check of the person providing the fingerprints by submitting the fingerprints to the department of public safety and the federal bureau of investigation. B. Criminal history records obtained by the department pursuant to the provisions of this section are confidential. Criminal history records obtained pursuant to the provisions of this section shall not be used for any purpose other than conducting background checks. Criminal history records obtained pursuant to the provisions of this section and the information contained in those records shall not be released or disclosed to any other person or agency, except pursuant to a court order or with the written consent of the person who is the subject of the records. C. A person who releases or discloses criminal history records or information contained in those records in violation of the provisions of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. History: Laws 2003, ch. 294, § 8 and Laws 2003, ch. 321, § 8; 2005, ch. 189, § 62. ANNOTATIONS The 2005 amendment, effective June 17, 2005, required in Subsection A that a criminal history records check be conducted on prospective foster parents and on other adults residing in the prospective adoptive or foster parent's household. 32A-5-15. Termination of parental rights. A. The physical, mental and emotional welfare and needs of the child shall be the primary consideration for the termination of parental rights. The court may terminate the rights of the child's parents as provided by the Adoption Act. B. The court shall terminate parental rights with respect to a child when: (1) the child has been abandoned by the parents; (2) the child has been a neglected or abused child and the court finds that the conditions and causes of the neglect and abuse are unlikely to change in the foreseeable future; or (3) the child has been placed in the care of others, including care by other relatives, either by a court order or otherwise, and the following conditions exist: (a) the child has lived in the home of others for an extended period of time; (b) the parent-child relationship has disintegrated; (c) a psychological parent-child relationship has developed between the substitute family and the child; (d) if the court deems the child of sufficient capacity to express a preference, the child no longer prefers to live with the natural parent; (e) the substitute family desires to adopt the child; and (f) a presumption of abandonment created by the conditions described in Subparagraphs (a) through (e) of this paragraph has not been rebutted. C. A finding by the court that all of the conditions set forth in Subparagraphs (a) through (e) of Paragraph (3) of Subsection B of this section exist shall create a rebuttable presumption of abandonment. History: 1978 Comp., § 32A-5-15, enacted by Laws 1993, ch. 77, § 142; 1995, ch. 206, § 33; 2022, ch. 41, § 60. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act; and deleted former Subsection D, which provided "The termination of parental rights involving an Indian child shall comply with the requirements of the federal Indian Child Welfare Act of 1978.". Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 1995 amendment, effective July 1, 1995, substituted "the Adoption Act" for "this article" in Subsection A, in Subsection B, added Subparagraph (3)(f) and made minor stylistic changes in Subparagraphs (3)(d) and (3)(e), and inserted "Subparagraph (a) through (e) of" in Subsection C. A biological father’s conduct prior to a child’s birth cannot be used as a basis for finding that the father caused the disintegration of the parent-child relationship. Helen G. v. Mark J. H., 2006-NMCA-136, 140 N.M. 618, 145 P.3d 98, rev'd, 2008-NMSC-002, 143 N.M. 246, 175 P.3d 914. Criminal's consent to adoption. — Man convicted of criminal sexual penetration of a child had no constitutional right under the due process clauses of the United States or New Mexico constitutions to withhold consent to adoption of the child conceived and born as a result of that act. Christian Child Placement Serv. of the N.M. Christian Children's Home v. Vestal, 1998-NMCA-098, 125 N.M. 426, 962 P.2d 1261. "Neglect" by noncustodial parent. — Termination of parental rights by reason of "neglect" requires a showing by clear and convincing evidence of culpability on the part of the parent through intentional or negligent disregard of the child's well-being and proper needs. If the parents are separated and living in different communities, in order to hold a noncustodial parent responsible for the neglect of the parent having actual physical custody of the child, it must be established that the noncustodial parent knew or should have known of the condition of the child, that the child was without proper care by the custodial parent because of the faults or habits of that parent, and when able to do so, to provide that care. In re Adoption of J.J.B., 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256, rev'd in part on other grounds, 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995). Insufficient evidence to support termination of parental rights. — In a termination of parental rights proceeding, where petitioners sought termination of the mother’s parental rights based on presumptive abandonment, the district court’s ruling that the mother abandoned the child was not supported by the evidence when petitioners failed to assert that the child was abandoned or provide any evidence that the child was abandoned by his mother, and although there was some evidence providing a basis for finding abuse and neglect, the evidence did not establish clearly and convincingly that the mother’s condition warranted a termination of her parental rights. In re Adoption Petition of Darla D. v. Grace R., 2016-NMCA-093. Law reviews. — For note, "Family Law - New Mexico Expands Due Process Rights of Parents in Termination of Parental Rights: In Re Ruth Anne E.," see 31 N.M.L. Rev. 439 (2001). For comment, "Custody Standards in New Mexico: Between Third Parties and Biological Parent, What is the Trend?", see 27 N.M. L. Rev. 547 (1997). Am. Jur. 2d, A.L.R. and C.J.S. references. — Legal malpractice in defense of parents at proceedings to terminate parental rights over dependent or neglected children, 18 A.L.R.5th 902. Parent's use of drugs as factor in award of custody of children, visitation rights, or termination of parental rights, 20 A.L.R.5th 534. Smoking as factor in child custody and visitation cases, 36 A.L.R.5th 377. Sufficiency of evidence to establish parent's knowledge or llowance of child's sexual abuse by another under statute permitting termination of parental rights for 'allowing' or 'knowingly allowing' such abuse to occur, 53 A.L.R.5th 499. 32A-5-16. Termination procedures. A. A proceeding to terminate parental rights may be initiated in connection with or prior to an adoption proceeding. Venue shall be in the court for the county in which the child is physically present or in the county from which the child was placed. The proceeding may be initiated by any of the following: (1) the department; (2) an agency; or (3) any other person having a legitimate interest in the matter, including a petitioner for adoption, the child's guardian, the child's guardian ad litem or attorney in another action, a foster parent, a relative of the child or the child. B. A petition for termination of parental rights shall be signed and verified by the petitioner, be filed with the court and set forth: (1) the date, place of birth and marital status of the child, if known; (2) the grounds for termination and the facts and circumstances supporting the grounds for termination; (3) the names and addresses of the person, authorized agency or agency officer to whom custody might be transferred; (4) the basis for the court's jurisdiction; (5) that the petition is in contemplation of adoption; (6) the relationship or legitimate interest of the applicant to the child; and (7) whether the child is an Indian child. C. Notice of the filing of the petition, accompanied by a copy of the petition, shall be served by the petitioner on the parents of the child, the child's guardian, the legal custodian of the child, the person with whom the child is residing, the individuals with whom the child has resided within the past six months and the department. Service shall be in accordance with the Rules of Civil Procedure for the District Courts for the service of process in a civil action in this state, with the exception that the department may be served by certified mail. The notice shall state specifically that the person served shall file a written response to the petition within twenty days if the person intends to contest the termination. D. If the identification or whereabouts of a parent is unknown, the petitioner shall file a motion for an order granting service by publication or an order stating that service by publication is not required. A motion for an order granting service by publication shall be supported by the affidavit of the petitioner, the agency or the petitioner's attorney detailing the efforts made to locate the parent. Upon being satisfied that reasonable efforts to locate the parent have been made and that information as to the identity or whereabouts of the parent is still insufficient to effect service in accordance with SCRA, Rule 1-004, the court shall order service by publication or order that publication is not required because the parent's consent is not required pursuant to the provisions of Section 32A-5-19 NMSA 1978. E. The court shall, upon request, appoint counsel for an indigent parent who is unable to obtain counsel or if, in the court's discretion, appointment of counsel for an indigent parent is required in the interest of justice. Payment for the appointed counsel shall be made by the petitioner pursuant to the rate determined by the supreme court of New Mexico for court-appointed attorneys. F. The court shall appoint a guardian ad litem for the child in all contested proceedings for termination of parental rights. If the child is fourteen years of age or older and in the custody of the department, the child's attorney appointed pursuant to the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] shall represent the child in any proceedings for termination of parental rights under this section. G. Within thirty days after the filing of a petition to terminate parental rights, the petitioner shall request a hearing on the petition. The hearing date shall be at least thirty days after service is effected upon the parent of the child or completion of publication. H. The grounds for any attempted termination shall be proved by clear and convincing evidence. I. If the court terminates parental rights, it shall appoint a custodian for the child. Upon entering an order terminating the parental rights of a parent, the court may commit the child to the custody of the department, the petitioner or an agency willing to accept custody for the purpose of placing the child for adoption. J. A judgment of the court terminating parental rights divests the parent of all legal rights. Termination of parental rights shall not affect the child's right of inheritance through the former parent. History: 1978 Comp., § 32A-5-16, enacted by Laws 1993, ch. 77, § 143; 1997, ch. 34, § 11; 2001, ch. 162, § 3; 2009, ch. 239, § 54; 2022, ch. 41, § 61. ANNOTATIONS Cross references. — For termination procedures in abuse and neglect cases, see 32A- 4-29 NMSA 1978. For Rules of Civil Procedure for the District Courts, see 1-001 NMRA. For process in the Children's Court, see Rule 10-103 NMRA. For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed provisions related to Indian children which are now covered by the Indian Family Protection Act; in Subsection B, deleted Subparagraphs B(7)(a) through B(7)(c); in Subsection C, deleted "In any case involving an Indian child, notice shall also be served on the child's Indian tribe pursuant to the federal Indian Child Welfare Act of 1978"; in Subsection H, deleted "In any proceeding involving an Indian child, the grounds for any attempted termination shall be proved beyond a reasonable doubt and meet the requirements set forth in the federal Indian Child Welfare Act of 1978"; and in Subsection I, deleted "In any termination proceeding involving an Indian child, the court shall, in any termination order, make specific findings that the requirements of the federal Indian Child Welfare Act of 1978 were met". Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2009 amendment, effective July 1, 2009, in Paragraph (3) of Subsection A, after "guardian ad litem", added "or attorney" and in Subsection F, added the last sentence. The 2001 amendment, effective June 15, 2001, deleted "an agency" preceding "a foster parent" in Paragraph A(3); substituted "the individuals" for "any person" in Subsection C; and in Subsection E substituted "an indigent parent who is unable" for "any parent who is unable", deleted "for financial reasons" following "to obtain counsel", inserted "for an indigent parent" following "appointment of council" and inserted "pursuant to the rate determined by the supreme court of New Mexico for court- appointed attorneys" at the end of the subsection. The 1997 amendment, effective July 1, 1997, made a minor stylistic change in Subsection C; and in Subsection D, divided the former first sentence into the present first and second sentences by inserting the language "or an order stating that service by publication is not required. A motion for an order granting service by publication shall be", and, at the end of the third sentence, added "or order that publication is not required because the parent's consent is not required pursuant to the provisions of Section 32A-5-19 NMSA 1978". Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-55 NMSA 1978 have been included in the annotations to this section. Waiver of objection to venue. — Mother, who appealed district court's judgment terminating her parental rights, waived her claim of improper venue, where she failed to raise her venue-statute objection at a time when any error could have been cured promptly. In re Kenny F., 1990-NMCA-004, 109 N.M. 472, 786 P.2d 699, overruled on other grounds by, In re Adoption of J.J.B., 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256; rev'd in part on other grounds, 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995). Appointment of counsel not required. — Where the parent did not request counsel and there was nothing in the record to indicate that the parent was indigent at the time of the consent hearing or that justice required the appointment of counsel, and the parent participated in the consent hearing, asked questions of witnesses, testified, and made a statement on the parent’s own behalf, the parent did not show that the parent was entitled to counsel at the consent hearing. In re Adoption of Homer F., 2009- NMCA-082, 146 N.M. 845, 215 P.3d 783. The court must advise parent of right to counsel upon a showing of indigency. — In a termination of parental rights proceeding, where the mother’s indigency was pointed out to the court at the first hearing, it was incumbent upon the court to advise the mother of her statutory right to counsel upon a showing of indigency, and the district court’s failure to do so violated the mother’s rights under the Adoption Act and was in derogation of the mother’s due process rights. In re Adoption Petition of Darla D. v. Grace R., 2016-NMCA-093. District court has a duty to inquire about the adequacy of a guardian ad litem. — In a termination of parental rights proceeding, where the guardian ad litem was selected by petitioners’ counsel, where the record was silent as to what information, if any, the guardian ad litem received from petitioners concerning the case, and where the guardian ad litem was not present at the hearing on her appointment, the judicial duty to ensure that procedures implicating a parent’s due process rights are conducted with scrupulous fairness required the district court to confirm the guardian ad litem was properly informed as to her responsibilities under New Mexico law, was not biased and was able to adequately represent the child’s interest; the district court’s failure to inquire about the adequacy of the guardian ad litem’s representation of the child’s interest was an abuse of discretion. In re Adoption Petition of Darla D. v. Grace R., 2016-NMCA-093. Lack of notice of issue of continuation of parental rights violates mother's due process rights. — Since the issue of termination of parental rights was not raised in the pleadings, nor properly tried and was mentioned for the first time after closing arguments, when counsel for the father made an oral motion that the parental rights of the mother be terminated, the procedural due process rights of the mother were violated as she was never given notice that the continuation of her parental rights was at issue, she did not have a full opportunity to prepare her case and, consequently, she was not given a full and fair hearing. In re Arnall, 1980-NMSC-052, 94 N.M. 306, 610 P.2d 193. Sufficiency of notice. — Although the summons served upon a father in a termination of parental rights action did not meet the requirements in the statute, there was no showing that the father was prejudiced by the various errors in the notice. Ronald A. v. State ex rel. Human Servs. Dep't, 1990-NMSC-071, 110 N.M. 454, 794 P.2d 371. Prior proceeding concerned with the fact of neglect is not a jurisdictional bar to a later, separate termination proceeding. In re Doe, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510. Since neglect proceedings do not result in final judgment on merits, the department is not barred under the "judgments" rule from later bringing termination proceedings. In re Doe, 1982-NMCA-115, 98 N.M. 442, 649 P.2d 510. Verification of pleadings. — Although the human services department [health care authority department] failed to obtain the court's permission prior to filing its amended petitions to terminate parental rights, the court granted permission to file the final amended petition and verification prior to the commencement of trial. Allowance of this amendment rectified any insufficiency in the earlier pleadings not being verified. The court, therefore, was not deprived of subject matter jurisdiction. Laurie R. v. N.M. Human Servs. Dep't, 1988-NMCA-055, 107 N.M. 529, 760 P.2d 1295. Authority of court after mother's consent declared invalid. — Since the mother's consent to adoption has been declared invalid in keeping with the best interests of the child, the trial court retains the power to determine custody in the absence of a legally valid consent, and it is within the authority of the trial court to continue the child in the custody of the couple seeking to adopt her. Although they lacked standing to petition the court for adoption, they were not left without remedy, since they did have standing to seek relief. In re Samantha D., 1987-NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert denied, 106 N.M. 174, 740 P.2d 1158. Law reviews. — For note, "Family Law - New Mexico Expands Due Process Rights of Parents in Termination of Parental Rights: In re Ruth Anne E.," 31 N.M.L. Rev. 439 (2001). Am. Jur. 2d, A.L.R. and C.J.S. references. — Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203. 32A-5-17. Persons whose consents or relinquishments are required. A. Consent to adoption or relinquishment of parental rights to the department or an agency licensed by the state of New Mexico shall be required of the following: (1) the adoptee, if fourteen years of age or older, except when the court finds that the adoptee does not have the mental capacity to give consent; (2) the adoptee's mother; (3) the adoptee's proposed adoptive parent; (4) the presumed father of the adoptee; (5) the adoptee's acknowledged father; (6) the department or the agency to whom the adoptee has been relinquished that has placed the adoptee for adoption or the department or the agency that has custody of the adoptee; provided, however, that the court may grant the adoption without the consent of the department or the agency if the court finds the adoption is in the best interests of the adoptee and that the withholding of consent by the department or the agency is unreasonable; and (7) the guardian of the adoptee's parent when, pursuant to provisions of the Uniform Probate Code [Chapter 45 NMSA 1978], that guardian has express authority to consent to adoption. B. A consent or relinquishment executed by a parent who is a minor shall not be subject to avoidance or revocation solely by reason of the parent's minority. History: 1978 Comp., § 32A-5-17, enacted by Laws 1993, ch. 77, § 144; 1995, ch. 206, § 34; 2005, ch. 189, § 63; 2022, ch. 41, § 62. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act; and deleted former Subsection B and redesignated former Subsection C as Subsection B. The 2005 amendment, effective June 17, 2005, changed "ten years" to "fourteen years" in Subsection A(1) and changed "adoptive father" to "proposed adoptive parent" in Subsection A(3). The 1995 amendment, effective July 1, 1995, in Subsection A, made minor stylistic changes and substituted "ten years of age or older" for "over the age of ten years" in Paragraph (1). Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 40-7-35 NMSA 1978 have been included in the annotations to this section. Parent did not qualify as an acknowledged father. — Where the biological father of the child knew that the mother was pregnant; the father registered with the putative father registry after receiving notice of the pending adoption of the child and two months after the child’s birth and placement with the adoptive parents; and the father filed a petition in the adoption proceeding to establish paternity, the father was not an “acknowledged father” and had no statutory right to withhold consent to the child’s adoption. Helen G. v. Mark J. H., 2008-NMSC-002, 143 N.M. 246, 175 P.3d 914. Consent required to alter parent-child relationship. — Courts are powerless to alter the natural parent-child relationship and create an artificial one in its stead without a consent agreement, unless circumstances exist under which consent is unnecessary or may be waived. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. Since adoption may be refused to petitioners who have the strongest endorsement of the parents, it follows that the office of the requirement of consent for adoption is to indicate the willingness of the parents that the natural relationship be swept away and a new one created in its stead. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. Written consent to proposed adoption, duly acknowledged before a notary public, is made the overt act by which the agreement of the parent to an adoption proceeding shall be manifested. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. Consent may be implied where there is direct evidence of it. In re Garcia's Estate, 1940-NMSC-081, 45 N.M. 8, 107 P.2d 866. Consent to adoption not ineffective because of duress of circumstances. Barwin v. Reidy, 62 N.M. 183, 307 P.2d 175 (1957). Consent binds no one unless court acts. — The giving of consent in an adoption case is indicative of the subjective state of mind of the parents - expressive only of the individuals and binding no one unless the court shall choose to act thereon. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. While parents have no property right in their children, as long as they properly discharge their responsibilities they are entitled to the custody and the natural affection and allegiance of their children, who should not be taken from them and given to others by adoption unless the parents have manifested their wish and agreement to do so. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. Consent of offending spouse after divorce. — Where a divorce decree is rendered on the ground of cruelty to a spouse who is granted the custody of children, with the right of visitation granted the offending spouse, the consent of the latter is a necessary prerequisite to entering a decree of adoption. Onsrud v. Lehman, 1952-NMSC-037, 56 N.M. 289, 243 P.2d 600. Fact that one parent has been adjudged to be mentally ill by a court of competent jurisdiction does not necessarily obviate the necessity of obtaining a consent for adoption from that parent. 1959 Op. Att'y Gen. No. 59-59. Notice requirements must be complied with. — A dependent and neglected child of a person who has been declared to be mentally ill by a court of competent jurisdiction may be adopted without the consent of such person, but the notice requirements imposed by certain statutes must be complied with. 1959 Op. Att'y Gen. No. 59-59. Law reviews. — For comment, "Custody Standards in New Mexico: Between Third Parties and Biological Parents, What is the Trend?", see 27 N.M.L. Rev. 547 (1997). Am. Jur. 2d, A.L.R. and C.J.S. references. — 2 Am. Jur. 2d Adoption § 60 et seq. Necessity and sufficiency of consent to adoption by spouse of adopting parent, 38 A.L.R.4th 768. Validity and construction of surrogate parenting agreement, 77 A.L.R.4th 70. Validity of birth parent's "blanket" consent to adoption which fails to identify adoptive parents, 15 A.L.R.5th 1. Rights of unwed father to obstruct adoption of his child by withholding consent, 61 A.L.R.5th 151. 2 C.J.S. Adoption of Persons §§ 51 to 72. 32A-5-18. Implied consent or relinquishment. A. A consent to adoption or relinquishment of parental rights required pursuant to the provisions of the Adoption Act shall be implied by the court if the parent, without justifiable cause, has: (1) left the adoptee without provision for the child's identification for a period of fourteen days; or (2) left the adoptee with others, including the other parent or an agency, without provisions for support and without communication for a period of: (a) three months if the adoptee was under the age of six years at the commencement of the three-month period; or (b) six months if the adoptee was over the age of six years at the commencement of the six-month period. B. A court shall not imply consent or relinquishment under this section unless the parent whose relinquishment or consent is to be implied has been served with notice setting forth the time and place of the hearing at which the consent or relinquishment may be implied. The implication of a consent or relinquishment under this section shall have the same effect as though the consent or relinquishment had been given voluntarily. C. The court shall render its decision on the implied consent prior to proceeding with the adjudicatory hearing. History: 1978 Comp., § 32A-5-18, enacted by Laws 1993, ch. 77, § 145. ANNOTATIONS Cross references. — For abandonment of a child, see 30-6-1 NMSA 1978. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 40-7-36 NMSA 1978 have been included in the annotations to this section. Effect of implied consent. — Where petitioners filed a petition to adopt respondent’s child and served respondent with a motion to imply respondent’s consent to the adoption; the district court held a hearing on the consent issue and entered an order implying respondent’s consent; respondent requested findings and conclusion, but did not file either; and respondent indicated that respondent would appeal the order, but no appeal was filed, the order implying respondent’s consent was a final, appealable order that terminated respondent’s right to participate further in the adoption proceedings and that terminated the respondent’s parental rights. Homer F. v. Jeremiah E., 2009-NMCA- 082, 146 N.M. 845, 215 P.3d 783. Voluntary conduct toward child may forfeit right to consent. — The person whose consent is otherwise required may forfeit his right to withhold or grant consent upon the basis of his voluntary conduct toward the child. Since the entire right may be so lost, there is no reason why a portion of the right, the specification of the persons in whose favor consent to adoption is given, may not be the subject of voluntary waiver. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. Abandonment consists of conduct on part of parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship. In re Adoption of Doe, 1976-NMCA-084, 89 N.M. 606, 555 P.2d 906, cert. denied, 90 N.M. 8, 558 P.2d 620. Two elements of test of abandonment, parent's conduct as evidence of disregard for parental obligation and that disregard leading to destruction of parent-child relationship, are interdependent; both must be established if there is to be legal abandonment. In re Adoption of Doe, 1976-NMCA-084, 89 N.M. 606, 555 P.2d 906, cert. denied, 90 N.M. 8, 558 P.2d 620. Abandonment is to be determined objectively, taking into account not only the verbal expressions of the natural parents but their conduct as parents as well. In re Adoption of Doe, 1976-NMCA-084, 89 N.M. 606, 555 P.2d 906, cert. denied, 90 N.M. 8, 558 P.2d 620. Justifiable cause for failure to communicate and support. — Before the court issues an order granting a decree of adoption and dispensing with a parent's consent to adoption based upon a conclusion that the parent has impliedly consented to an adoption because of a failure of the parent to provide for the support and to communicate or maintain contact with the child during a certain time period, the court must also determine whether the failure of the parent to support and communicate with the child during the time period was "without justifiable cause." Such cause was established in this case since the father lost his job shortly after he separated from the mother and was unemployed at the time of the filing of the petition for adoption, the father continued to object to his son's adoption, the father attempted through counsel to obtain visitation, and the father made a written demand for the return of his son. In re Adoption of J.J.B., 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256, rev'd in part on other grounds, 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, cert. denied, 516 U.S. 860, 116 S. Ct. 168, 133 L. Ed. 2d 110 (1995). Notice to parents required. — It is impossible to declare a child to be dependent and neglected and then place the child for adoption without notice to the parents. 1959 Op. Att'y Gen. No. 59-59. Law reviews. — For note, "Family Law - A Limitation on Grandparental Rights in New Mexico: Christian Placement Service v. Gordon," see 17 N.M.L. Rev. 207 (1987). Am. Jur. 2d, A.L.R. and C.J.S. references. — Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption, 71 A.L.R.4th 305. Comment Note: Natural parent's indigence as precluding finding that failure to support child waived requirement of consent to adoption - general principles, 82 A.L.R.5th 443. Natural parent's indigence resulting from unemployment or underemployment as precluding finding that failure to support child waived requirement of consent to adoption, 83 A.L.R.5th 375. 32A-5-19. Persons whose consents or relinquishments are not required. The consent to adoption or relinquishment of parental rights required pursuant to the provisions of the Adoption Act shall not be required from: A. a parent whose rights with reference to the adoptee have been terminated pursuant to law; B. a parent who has relinquished the child to an agency for an adoption; C. a biological father of an adoptee conceived as a result of rape or incest; D. a person who has failed to respond when given notice pursuant to the provisions of Section 32A-5-27 NMSA 1978; or E. an alleged father who has failed to register with the putative father registry within ten days of the child's birth and is not otherwise the acknowledged father. History: 1978 Comp., § 32A-5-19, enacted by Laws 1993, ch. 77, § 146; 1997, ch. 34, § 12; 2001, ch. 162, § 4. ANNOTATIONS The 2001 amendment, effective June 15, 2001, in Subsection E, substituted "an alleged father" for "any putative father"; inserted "and is not otherwise the acknowledged father"; and deleted former Subsection F, which read "any alleged father". The 1997 amendment, effective July 1, 1997, substituted "32A-5-27" for "32-5-27" in Subsection D, added Subsection F, and made minor stylistic changes at the end of Subsections D and E. Adoptee conceived as result of rape. — Man convicted of criminal sexual penetration of a child had no constitutional right under the due process clause of the United States or New Mexico constitutions to withhold consent to adoption of the child conceived and born as a result of that act. Christian Child Placement Serv. of the N.M. Christian Children's Home v. Vestal, 1998-NMCA-098, 125 N.M. 426, 962 P.2d 1261. Criminal sexual penetration of 16-year-old not rape. — Child conceived as a result of fourth-degree criminal sexual penetration of a 16-year-old was not conceived "as a result of rape" authorizing dismissal of the father from adoption proceedings under Subsection C of this section. State ex rel. Children, Youth & Families Dep't v. Paul P., 1999-NMCA-077, 127 N.M. 492, 983 P.2d 1011. 32A-5-20. Putative father registry; notice; penalty. A. The purpose of the putative father registry is to protect the parental rights of fathers who affirmatively assume responsibility for children they may have fathered and to expedite adoptions of children whose biological fathers are unwilling to assume responsibility for their children by registering with the putative father registry or otherwise acknowledging their children. The registry does not relieve the obligation of mothers to identify known fathers. B. A putative father registry shall be established by the department of health to record the names and addresses of: (1) any person adjudicated by a court of this state to be the father of a child; (2) any person who has filed with the registry, before or after birth of a child out of wedlock, a notice of intent to claim paternity of the child; (3) any person who has filed with the registry an instrument acknowledging paternity; or (4) any person adjudicated by a court of another state or territory of the United States to be the father of an out-of-wedlock child, when a certified copy of the court order has been filed with the registry. C. A person filing a notice of intent to claim paternity of a child or an acknowledgment of paternity shall include in the notice the following: (1) his name; (2) his current address; (3) the mother's name and any other identifying information requested by the department of health; and (4) the child's name, if known, and any other identifying information requested by the department of health. D. If the person filing the notice of intent to claim paternity of a child or acknowledgment changes his address, the person shall notify the department of health of his new address in the manner prescribed by the department of health. E. A person who has filed a notice of intent to claim paternity may at any time revoke a notice of intent to claim paternity previously filed. Upon receipt by the registry of the notice of revocation, the revoked notice of intent to claim paternity shall be deemed a nullity nunc pro tunc. F. No registration fee shall be charged for registering the intent to claim paternity of a child or acknowledgment of paternity. The department of health may charge a reasonable fee as prescribed by regulation for processing searches of the putative father registry. G. An unrevoked notice of intent to claim paternity of a child may be introduced in evidence by any party in any proceeding in which that fact may be relevant. H. If a father-child relationship has not been established pursuant to the New Mexico Uniform Parentage Act [40-11A-101 to 40-11A-106 NMSA 1978], a petitioner for adoption of or termination of parental rights regarding a child shall obtain a certificate of search of the putative father registry. I. If a petitioner for adoption of or termination of parental rights regarding a child has reason to believe that the conception or birth of the child may have occurred in another state, the petitioner shall also obtain a certificate of search from the putative father registry, if any, in that state. J. The department of health shall furnish to the requester a certificate of search of the registry on request of any court, a state agency, the department, the petitioner's attorney or the mother of the child. The information shall not be disclosed to any other person, except upon order of the court for good cause shown. The requester shall furnish the department with a stamped, self-addressed reply envelope. K. A certificate provided by the department of health shall be signed on behalf of the department of health and state that: (1) a search has been made of the registry; and (2) a registration containing the information required to identify the registrant: (a) has been found and is attached to the certificate of search; or (b) has not been found. L. A petitioner shall file the certificate of search with the district court before a proceeding for adoption of or termination of parental rights regarding a child may be concluded. M. Subject to any rules established by the New Mexico supreme court, a certificate of search of the registry of paternity in this or another state is admissible in a proceeding for adoption of or termination of parental rights regarding a child and, if relevant, in other legal proceedings. N. The department of health may promulgate any regulations or forms necessary to implement the provisions of this section. O. Any person who intentionally and unlawfully releases information from the putative father registry to the public or makes any other unlawful use of the information in violation of the provisions of this section is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. History: 1978 Comp., § 32A-5-20, enacted by Laws 1993, ch. 77, § 147; 2009, ch. 215, § 18. ANNOTATIONS Cross references. — For birth registration, see 24-14-13 NMSA 1978. The 2009 amendment, effective January 1, 2010, deleted former Subsection H, which provided for disclosure of the names and addresses of persons listed with the registry and added Subsections H through M. 32A-5-21. Form of consent or relinquishment. A. Except when consent or relinquishment is implied, a consent or relinquishment by a parent shall be in writing, signed by the parent consenting or relinquishing and shall state the following: (1) the date, place and time of execution; (2) the date and place of birth of the adoptee and any names by which the adoptee has been known; (3) if a consent to adoption is being executed, the identity of the petitioner, if known, or when the adoption is an independent adoption and the identity of the petitioner is unknown, how the petitioner was selected by the consenting parent; (4) if a relinquishment of parental rights is being executed, the name and address of the agency or the department; (5) that the person executing the consent or relinquishment has been counseled, as provided in Section 32A-5-22 NMSA 1978, by a certified counselor of the person's choice and with this knowledge the person is voluntarily and unequivocally consenting to the adoption of the named adoptee; (6) that the consenting party has been advised of the legal consequences of the relinquishment or consent either by independent legal counsel or a judge; (7) if the adoption is closed, that all parties understand that the court will not enforce any contact, regardless of any informal agreements that have made between the parties; (8) that the consent to or relinquishment for adoption cannot be withdrawn; (9) that the person executing the consent or relinquishment has received or been offered a copy of the consent or relinquishment; (10) that a counseling narrative has been prepared pursuant to department rules and is attached to the consent or relinquishment; (11) that the person who performed the counseling meets the requirements set forth in the Adoption Act; and (12) that the person executing the consent or relinquishment waives further notice of the adoption proceedings. B. The consent of an adoptee, if fourteen years of age or older, shall be in writing, signed by the adoptee, consenting to the adoption and shall state the following: (1) the date, place and time of execution; (2) the date and place of birth of the adoptee and any names by which the adoptee has been known; (3) the name of the petitioner; (4) that the adoptee has been counseled regarding the consent pursuant to department rules; (5) that the adoptee has been advised of the legal consequences of the consent; (6) that the adoptee is voluntarily and unequivocally consenting to the adoption; (7) that the consent or relinquishment cannot be withdrawn; (8) that a counseling narrative has been prepared pursuant to department rules and is attached to the consent; and (9) that the person who performed the counseling meets the requirements set forth in the Adoption Act. C. In cases when the consent or relinquishment is in English and English is not the first language of the consenting or relinquishing person, the person taking the consent or relinquishment shall certify in writing that the document has been read and explained to the person whose consent or relinquishment is being taken in that person's first language, by whom the document was so read and explained and that the meaning and implications of the document are fully understood by the person giving the consent or relinquishment. D. Unconditional consents or relinquishments are preferred, and, therefore, conditional consents or relinquishments shall be for good cause and approved by the court. However, if the condition is for a specific petitioner or the condition requires the other parent to consent before the decree of adoption is entered, the condition shall be deemed for good cause. In any event, all conditions permitted under this subsection shall be met within one hundred eighty days of the execution of the conditional consent or relinquishment or the conclusion of any litigation concerning the petition for adoption. The court may grant an extension of this time for good cause. E. Agency or department consents required pursuant to the provisions of Section 32A-5-17 NMSA 1978 shall state the following: (1) the date, place and time of execution; (2) the date and place of birth of the adoptee and any names by which the adoptee has been known; (3) the name of the petitioner; and (4) the consent of the agency or department. F. A consent or relinquishment taken by an individual appointed to take consents or relinquishments by an agency shall be notarized, except that a consent or relinquishment signed in the presence of a judge need not be notarized. A hearing before the court for the purpose of taking a consent or relinquishment shall be heard by the court within seven days of request for setting. G. No consent to adoption or relinquishment of parental rights shall be valid if executed within forty-eight hours after the adoptee's birth. H. A consent to or relinquishment for adoption shall not be withdrawn prior to the entry of a decree of adoption unless the court finds, after notice and opportunity to be heard is afforded to the petitioner, to the person seeking the withdrawal and to the agency placing a child for adoption, that the consent or relinquishment was obtained by fraud. In no event shall a consent or relinquishment be withdrawn after the entry of a decree of adoption. History: 1978 Comp., § 32A-5-21, enacted by Laws 1993, ch. 77, § 148; 2005, ch. 189, § 64; 2022, ch. 41, § 63. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed provisions related to Indian children which are now covered by the Indian Family Protection Act; in Subsection G, deleted "Consent to adoption or relinquishment of parental rights involving an Indian child shall comply with the more stringent requirements of the federal Indian Child Welfare Act of 1978"; and deleted former Subsection H and redesignated former Subsection I as Subsection H. The 2005 amendment, effective June 17, 2005, added Subsection A(7), which provided that a consent or relinquishment shall, if the adoption is closed, that all parties understand that the court will not enforce any contract, regardless of any informal agreement between the parties; and in Subsection B, changed "over the age of ten years" to "fourteen years of age or older". Counseling not grounds for reopening adoption. — The fact that the mother had not received pre-consent counseling was not a proper ground upon which to reopen an adoption. In re Adoption of Drummond, 1997-NMCA-094, 123 N.M. 727, 945 P.2d 457. Withdrawal of parental consent. — Fraud is the only expressly-stated ground in the Adoption Act upon which to base the withdrawal of parental consent prior to the entry of a final decree of adoption. In re Kira M., 1994-NMSC-109, 118 N.M. 563, 883 P.2d 149. The children's court has the power to grant the request of a natural parent to withdraw consent under exceptional circumstances failing outside the specific grounds enunciated in subsection F; any such order must be consistent with the best interest of the child, which must be given paramount consideration. In re Kira M., 1994-NMSC-109, 118 N.M. 563, 883 P.2d 149. Compliance with statutory procedures. — Where the director of the private adoption agency talked to the parents to be sure they understood the ramifications of what they were doing, that the relinquishment and consent were final and irrevocable; and the parents each received counseling and independent legal advice, the parent’s relinquishments were voluntary and complied with the requirements of this section. Vigil v. Fogerson, 2006-NMCA-010, 138 N.M. 822, 126 P.3d 1186. 32A-5-22. Persons required to receive counseling; content and form of counseling. A. Counseling required pursuant to the provisions of this section shall occur prior to: (1) consent to the adoption; or (2) the relinquishment of parental rights. For good cause, the court may waive any or all counseling requirements. B. Counseling shall be required for the following persons: (1) the adoptee, if the adoptee is ten years of age or older; (2) the adoptee's parent who is consenting to the adoption or relinquishing parental rights; and (3) in a stepparent adoption, when the stepparent and the custodial parent have been married for more than one year, but less than two years: (a) the custodial parent whose parental rights are not being terminated, but who is consenting to adoption of the adoptee by the stepparent; and (b) the petitioning stepparent. C. The content of the counseling shall be as follows: (1) an adoptee who is ten years of age or older shall be counseled regarding: (a) the adoptee's understanding of the adoption process, the consequences of the adoption and alternatives to the adoption; (b) the adoptee's feelings and wishes regarding the adoption; (c) the adoptee's readiness for the adoption; and (d) any other issues relevant to the adoption, given the specific circumstances of the adoption; (2) the adoptee's parent who is consenting to the adoption or relinquishing his parental rights shall be counseled regarding alternatives to and the consequences of adoption; and (3) in a stepparent adoption, the custodial parent consenting to the adoption of the custodial parent's child by the stepparent and the petitioning stepparent shall be counseled regarding alternatives to adoption, the consequences of the adoption, child custody and child support. D. The form of the counseling shall be as follows: (1) adults required to receive counseling shall be counseled individually without the presence of any other person for a minimum of one counseling session; and (2) for adoptees ten years of age or older and minor biological parents, there shall be a minimum of two separate counseling sessions with at least one of the sessions to be conducted without the presence of the adoptee's parent or guardian, the minor biological parent's parent or guardian or the petitioner. E. All counseling sessions shall be conducted in the primary language of the person receiving the counseling. F. A counseling narrative shall be prepared as prescribed by department regulation and shall be attached to the consent or relinquishment form for filing with the court. G. Counseling may be provided by a counselor, the department or an agency. H. A person required to receive counseling who is residing outside of New Mexico may receive counseling from a person who possesses qualifications equivalent to a person certified to perform counseling by the state of New Mexico. A person providing counseling in another state or country shall attach a statement specifying that person's qualification to perform counseling to the counseling narrative. A person providing counseling in New Mexico shall attach a copy of that person's certification to the counseling narrative. History: 1978 Comp., § 32A-5-22, enacted by Laws 1993, ch. 77, § 149; 1995, ch. 206, § 35. ANNOTATIONS The 1995 amendment, effective July 1, 1995, substituted "ten years of age or older" for "older than ten years of age" in Paragraph (1) of Subsection B, rewrote Paragraph (3) of Subsection B, and rewrote Subsection G. Due process. — Where birth father refused the offer of private counseling four times and there is no suggestion in the record that the lack of private counseling impacted his decision to relinquish his parental rights, there was substantial compliance with the statutory requirements applicable to relinquishments, and due process was satisfied. Vigil v. Fogerson, 2006-NMCA-010, 138 N.M. 822, 126 P.3d 1186. 32A-5-23. Persons who may take consents or relinquishments; accounting of disbursements. A. A consent to adoption or relinquishment of parental rights shall be signed before and approved on the record by a judge who has jurisdiction over adoption proceedings, within or without this state, and who is in the jurisdiction in which the child is present or in which the parent resides at the time it is signed. B. No parent may relinquish parental rights to the department or an agency without the department's or the agency's consent. C. The consent or relinquishment shall be filed with the court in which the petition for adoption has been filed before adjudication of the petition. D. Prior to the approval of a consent to adoption or relinquishment of parental rights, a full and specific accounting signed under penalty of perjury shall be filed by the prospective adoptive parents or their representative in the same court where the associated consent or relinquishment may later be heard. The accounting shall be filed no later than seventy-two hours prior to the anticipated hearing on the proposed consent or relinquishment. The disbursements and expenses itemized in the accounting must be approved by the court prior to approval of a consent to adoption or relinquishment or consent to adoption by a parent for the parent's child. The accounting shall itemize in detail, including the dates and purpose of each disbursement or expense payment and the name and address of each person who received or will receive any disbursement or payment: (1) all disbursements, as well as anticipated or promised disbursements, of anything of value provided by or on behalf of: (a) the prospective adoptive parents; or (b) any person who may profit or be compensated as a result of an adoption associated with the consent or relinquishment; (2) all disbursements of anything of value to the parents of the child or the child; and (3) all expenses paid on behalf of the parents of the child or the child. E. The accounting required in Subsection D of this section is not applicable to stepparent adoptions or to adoptions pursuant to the provisions of the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978], unless ordered by the court. History: 1978 Comp., § 32A-5-23, enacted by Laws 1993, ch. 77, § 150; 1995, ch. 206, § 36; 2005, ch. 189, § 65; 2012, ch. 28, § 2. ANNOTATIONS The 2012 amendment, effective March 3, 2012, required an accounting of disbursements prior to a consent to adoption or relinquishment of parental rights by the prospective adoptive parents; in the title after "relinquishments", added "; accounting of disbursements"; and added Subsections D and E. The 2005 amendment, effective June 17, 2005, deleted former Subsection A(2), which provided that a consent to adoption or relinquishment could be signed before and approved by an individual of appointed by the department or an agency licensed by the state when the parent is represented by counsel and a guardian ad litem has been appointed for the adoptee. The 1995 amendment, effective July 1, 1995, added "and a guardian ad litem has been appointed for any adoptee whose consent is required" and made a minor stylistic change in Paragraph (2) of Subsection A. Birth parents fully understood. — Where director of private adoption agency testified that he made sure the birth parents understood the ramifications of what they were doing, that the relinquishment and consent were final and irrevocable, that they had received legal advice and counseling about all alternatives available to them, and that they agreed with the counseling narrative attached to each respective relinquishment and consent form, and he spent about an hour with the birth parents before the signing, and he did not hear any reluctance or reservations from either parent, about their course of action, the evidence supports the inference that the birth parents fully understood the consequences of the relinquishment and consent. Vigil v. Fogerson, 2006-NMCA-010, 138 N.M. 822, 126 P.3d 1186. 32A-5-24. Relinquishments to the department. A. When a parent elects to relinquish parental rights to the department, a petition to accept the relinquishment shall be filed, unless an abuse or neglect proceeding is pending. If an abuse or neglect proceeding is pending, the relinquishment shall be heard in the context of that proceeding. B. In all hearings regarding relinquishment of parental rights to the department, the child shall be represented by a guardian ad litem. If the child is fourteen years of age or older and in the custody of the department, the child's attorney appointed pursuant to the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] shall represent the child in any proceeding for termination of parental rights under this section. C. If a proposed relinquishment of parental rights is not in contemplation of adoption, the court shall not allow the relinquishment of parental rights unless it finds that good cause exists, that the department has made reasonable efforts to preserve the family and that relinquishment of parental rights is in the child's best interest. Whenever a parent relinquishes the parent's rights pursuant to this subsection, the parent shall remain financially responsible for the child. The court may order the parent to pay the reasonable costs of support and maintenance of the child. The court may use the child support guidelines set forth in Section 40-4-11.1 NMSA 1978 to calculate a reasonable payment. D. When a parent relinquishes the parent's rights under this section, the parent shall be notified that no contact will be enforced by the court, regardless of any informal agreement, unless the parties have agreed to an open adoption pursuant to Section 32A-5-35 NMSA 1978. The consent for relinquishment shall be in writing and shall state that the parties understand that any informal agreement allowing contact will not be enforced by the courts. History: 1978 Comp., § 32A-5-24, enacted by Laws 1993, ch. 77, § 151; 2005, ch. 189, § 66; 2009, ch. 239, § 55. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection B, added the last sentence. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, added Subsection D, which provided that when a parent relinquishes parental rights, the parent shall be notified that no contract will be enforced by the court unless the parties have agreed to an open adoption and that the consent for relinquishment shall be in writing and shall state that the parties understand that any informal agreement allowing contact will not be enforced by the court. 32A-5-25. Petition; time of filing. A. A petition for adoption shall be filed within sixty days of the adoptee's placement into the proposed adoptive home if the adoptee is under the age of one year. If the adoptee is over the age of one year at the time of placement, the petition shall be filed within one hundred twenty days of the placement. For good cause shown, the court may extend those time limits up to an additional one hundred eighty days if a request for extension is filed prior to the expiration of the initial time limits. No further extensions of time shall be granted after the one hundred eighty day extension period, unless an addendum to the pre-placement study is filed in addition to an affidavit establishing good cause for the delay in filing the adoption petition. B. If a petition is not filed in a timely manner, any person having knowledge of the proceeding shall notify the department, which may proceed as if the adoptee were a neglected child. History: 1978 Comp., § 32A-5-25, enacted by Laws 1993, ch. 77, § 152; 1995, ch. 206, § 37. ANNOTATIONS The 1995 amendment, effective July 1, 1995, substituted "adoptee's" for "child's" and "adoptee" for "child" throughout the section. 32A-5-26. Petition; content. A petition for adoption shall be filed and verified by the petitioner and shall allege: A. the full name, age and place and duration of residence of the petitioner and, if married, the place and date of marriage; the date and place of any prior marriage, separation or divorce; and the name of any present or prior spouse; B. the date and place of birth of the adoptee, if known; C. the places where the adoptee has lived within the past three years and the names and addresses of the persons with whom the adoptee has lived, unless the adoptee is in the custody of an agency or the department, in which case the petitioner shall state the name and address of the agency or the department's county office from which the child was placed; D. the birth name of the adoptee, any other names by which the adoptee has been known and the adoptee's proposed new name; provided that in the case of an agency adoption, if the petitioner and the biological parents have not agreed to the release of the adoptee's identity to the other person, the birth name and any other names by which the adoptee has been known shall be filed with the court as separate documents at the time the petition is filed; E. where the adoptee is residing at the time of the filing of the petition and, if the adoptee is not living with the petitioner, when the adoptee will commence living with the petitioner; F. that the petitioner desires to establish a parent and child relationship with the adoptee and that the petitioner is a fit and proper person able to care and provide for the adoptee's welfare; G. the existence of any court orders, including placement orders, that are known to the petitioner and that regulate custody, visitation or access to the adoptee, copies of which shall accompany and be attached to the petition as exhibits; H. the relationship, if any, of the petitioner to the adoptee; I. the name and address of the placing agency, if any; J. the names and addresses of all persons from whom consents or relinquishments are required, attaching copies of those obtained and alleging the facts that excuse or imply the consents or relinquishments of the others; provided that if the petitioner has not agreed to the release of the petitioner's identity to the parent or if the parent has not agreed to the release of the parent's identity to the petitioner, the names and addresses of all persons from whom consents or relinquishments are required shall be filed with the court as separate documents at the time the petition for adoption is filed; K. whether the adoption will be an open adoption, pursuant to the provisions of Section 32A-5-35 NMSA 1978; L. when consent of the child's father is alleged to be unnecessary, the results of a search of the putative father registry; M. whether the adoptee is an Indian child; N. whether the adoption is subject to the Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978] and, if so, a copy of the interstate compact form indicating approval shall be attached as an exhibit to the petition; O. whether the adoptee is foreign-born and, if so, copies of the child's passport and United States visa and of all documents demonstrating that the adoptee is legally free for adoption, including a certificate from the United States secretary of state that certifies that the adoption is a convention adoption; P. whether the adoption is a convention adoption and, if so, the petition shall allege: (1) that the country in which the child has been residing is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption; (2) that the agency or person who is providing the adoption service has been approved as an accrediting entity; and (3) that the certificate issued by the United States secretary of state that certifies the adoption as a convention adoption has been filed with the court; and Q. the name, address and telephone number of the agency or individual who has agreed to conduct the post-placement report in accordance with Section 32A-5-31 NMSA 1978, if different than the agency or individual who prepared the pre-placement study in accordance with Section 32A-5-13 NMSA 1978. History: 1978 Comp., § 32A-5-26, enacted by Laws 1993, ch. 77, § 153; 1995, ch. 206, § 38; 2003, ch. 294, § 4; 2003, ch. 321, § 4; 2022, ch. 41, § 64. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed provisions related to Indian children which are now covered by the Indian Family Protection Act; and in Subsection M, after "whether the adoptee is an Indian child", deleted "and, if so, the petition shall allege", and deleted Paragraphs M(1) through M(3). Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2003 amendment, effective July 1, 2003, added "including a certificate from the United States secretary of state that certifies that the adoption is a convention adoption" at the end of Subsection O; and added a new Subsection P and redesignated former Subsection P as Subsection Q. Laws 2003, ch. 294, § 4 and Laws 2003, ch. 321, § 4 enacted identical amendments to this section. The section was set out as amended by Laws 2003, ch. 321, § 4. See 12-1-8 NMSA 1978. The 1995 amendment, effective July 1, 1995, substituted "32A-5-35" for "32-5-35" in Subsection K, substituted "32A-5-31" for "32-5-31" and "32A-5-13" for "32-5-13" in Subsection P, and made minor stylistic changes throughout the section. 32A-5-27. Notice of petition; form of service; waiver. A. The petition for adoption shall be served by the petitioner on the following, unless it has been previously waived in writing: (1) the department, by providing a copy to the court clerk for service pursuant to Section 32A-5-7 NMSA 1978; (2) any person, agency or institution whose consent or relinquishment is required by Section 32A-5-17 NMSA 1978, unless the notice has been previously waived; (3) any acknowledged father of the adoptee; (4) the legally appointed custodian or guardian of the adoptee; (5) the spouse of any petitioner who has not joined in the petition; (6) the spouse of the adoptee; (7) the surviving parent of a deceased parent of the adoptee; (8) any person known to the petitioner having custody of or visitation with the adoptee under a court order; (9) any person in whose home the child has resided for at least two months within the preceding six months; (10) the agency or individual authorized to investigate the adoption under Section 32A-5-13 NMSA 1978; and (11) any other person designated by the court. B. Notice shall not be served on the following: (1) an alleged father; and (2) a person whose parental rights have been relinquished or terminated. C. The petitioner shall provide the clerk of the court with a copy of the petition for adoption, to be mailed to the department pursuant to the provisions of Section 32A-5-7 NMSA 1978. D. The notice shall state that the person served shall respond to the petition within twenty days if the person intends to contest the adoption and shall state that the failure to so respond shall be treated as a default and the person's consent to the adoption shall not be required. Provided, however, that this provision shall not apply to an agency, the department or an investigator preparing the post-placement report pursuant to Section 32A-5-31 NMSA 1978. If an agency, the department or an investigator preparing the post-placement report wants to contest the adoption, it shall notify the court within twenty days after completion of the post-placement report. E. Service shall be made pursuant to the Rules of Civil Procedure for the District Courts. If the whereabouts of a parent whose consent is required is unknown, the investigator, department or agency charged with investigating the adoption under Section 32A-5-13 NMSA 1978 shall investigate the whereabouts of the parent and shall file by affidavit the results of the investigation with the court. Upon a finding by the court that information as to the whereabouts of a parent has been sufficiently investigated and is still insufficient to effect service in accordance with the Rules of Civil Procedure for the District Courts, the court shall issue an order providing for service by publication. F. As to any other person for whom notice is required under Subsection A of this section, service by certified mail, return receipt requested, shall be sufficient. If the service cannot be completed after two attempts, the court shall issue an order providing for service by publication. G. The notice required by this section may be waived in writing by the person entitled to notice. H. Proof of service of the notice on all persons for whom notice is required by this section shall be filed with the court before any hearing adjudicating the rights of the persons. I. The requirements of this section shall not apply to confirmatory adoptions. History: 1978 Comp., § 32A-5-27, enacted by Laws 1993, ch. 77, § 154; 2001, ch. 162, § 5; 2022, ch. 41, § 65; 2025, ch. 15, § 4. ANNOTATIONS Cross references. — For process in the Children's Court, see 10-104 NMRA. For service of process in the district courts, see 1-004 NMRA. For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2025 amendment, effective June 20, 2025, provided that the notice requirements for petitions for adoption do not apply to confirmatory adoptions; and added Subsection I. The 2022 amendment, effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act; and deleted former Subsection D and redesignated former Subsections E through I as Subsections D through H, respectively. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2001 amendment, effective June 15, 2001, updated the internal references throughout the section; and substituted "an alleged father" for "alleged or putative fathers" in Paragraph B(1). Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 40-7-44 NMSA 1978 have been included in the annotations to this section. Substitute service of process by publication is inadequate in adoption proceedings. Normand ex rel. Normand v. Ray, 1988-NMSC-054, 107 N.M. 346, 758 P.2d 296 (decided under prior law). Am. Jur. 2d, A.L.R. and C.J.S. references. — Required parties in adoption proceedings, 48 A.L.R.4th 860. 32A-5-28. Response to petition. A. Any person responding to a notice of a petition for adoption shall file a verified response to the petition within the time limits specified in Section 32A-5-25 NMSA 1978. B. The verified response shall follow the Rules of Civil Procedure for the District Courts and shall allege: (1) the existence of any court orders known to the respondent that regulate custody, visitation or access to the adoptee but have not been filed with the court at the time the response is filed and copies of which shall be attached to the response; (2) the relationship, if any, of the respondent to the adoptee; (3) whether the adoptee is an Indian child; (4) whether the adoption is subject to the Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978]; and (5) whether the adoption is an open adoption. History: 1978 Comp., § 32A-5-28, enacted by Laws 1993, ch. 77, § 155; 2022, ch. 41, § 66. ANNOTATIONS Cross references. — For Rules of Civil Procedure for the District Courts, see 1-001 NMRA. For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed a provision related to Indian children which is now covered by the Indian Family Protection Act; and in Subsection B, Paragraph B(3), after "Indian child", deleted "and, if so, the response shall set forth all allegations required under the federal Indian Child Welfare Act of 1978". Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. 32A-5-29. Custody pending decree. Once the adoptee has been placed with the petitioner pursuant to the provisions of the Adoption Act, the petitioner shall have physical custody and control of the adoptee and shall be responsible for the care, maintenance and support of the adoptee, including all necessary medical, dental, psychological or surgical treatment, pending the further order of the court. Should the child be returned to the parents, this section shall not prohibit petitioners from seeking reimbursement for the child's expenses from the parents. History: 1978 Comp., § 32A-5-29, enacted by Laws 1993, ch. 77, § 156. 32A-5-30. Removal of adoptee from the county. During the pendency of an adoption proceeding, the adoptee shall not be removed from the county where the petitioner resides at the time of filing a petition for adoption for a period longer than fifteen days without the permission of the court in which the adoption is pending. History: 1978 Comp., § 32A-5-30, enacted by Laws 1993, ch. 77, § 157; 1995, ch. 206, § 39. ANNOTATIONS The 1995 amendment, effective July 1, 1995, substituted "where the petitioner resides at the time of filing a petition for adoption" for "in which the adoption is pending". 32A-5-31. Post-placement report. A. An agency or an individual with the credentials set out in Subsection C of Section 32A-5-13 NMSA 1978 shall file with the court its post-placement report of the prospective adoptive home and the adoptee. The post-placement report shall be completed as prescribed by department regulations and shall include the following: (1) the expressed desires of the parents as to the kind of adoptive family sought; (2) the interaction between the adoptee and petitioner; (3) the adjustment of the adoptee since placement; (4) the integration and acceptance of the adoptee in the petitioner's family; (5) the petitioner's ability to meet the physical and emotional needs of the adoptee; (6) whether the adoptive home is a suitable home for the proposed adoption; (7) whether the adoption is in the best interest of the adoptee; (8) the type and frequency of post-placement services given to the petitioner; (9) orders, judgments or decrees affecting the adoptee or children of the petitioner; (10) property owned by the adoptee; (11) full disclosure; (12) the costs, expenses and professional fees connected with the adoption; (13) other circumstances that are relevant to the adoption of the adoptee by the petitioner; and (14) when the adoptee is placed by an agency, an itemized agency statement of all payments made to any person or entity in connection with the adoption, including the date paid, the amount paid, the payee and the purpose of the payment. B. The post-placement report shall contain an evaluation of the proposed adoption with a recommendation as to the granting of the petition for adoption and other information required by the court. C. Unless directed by the court, a post-placement report is not required in cases in which the child is being adopted by a stepparent, a relative or a person named in the child's deceased parent's will pursuant to Section 32A-5-12 NMSA 1978. D. The investigation for the post-placement report shall be conducted by the department, an agency or an investigator. The department, agency or investigator conducting the post-placement report may be the same as the agency or individual conducting the pre-placement study and they shall be maintained on the same list as that compiled for pre-placement studies under Subsection D of Section 32A-5-13 NMSA 1978. E. The department, agency or investigator shall observe the adoptee and interview the petitioner in the petitioner's home as specified in department regulations as soon as possible after the receipt of notice of the action, but in any event within thirty days after receipt of the notice. F. For an adoptee who is under one year of age at the time of placement, the department, agency or investigator shall complete and file the written report with the court within sixty days from receipt of notice of the proceeding and for an adoptee who is one year of age or older at the time of placement, the written report shall be filed with the court within one hundred twenty days from the receipt of notice of the proceeding. Concurrently, the deliverer shall forward a copy of the report to the petitioner's attorney or to the petitioner, if not represented by counsel, and to the department if the report is not generated by the department. Upon a showing of good cause and after notice to the petitioner, the court may grant extensions of time to the department, agency or investigator to file the post-placement report so long as the report is filed at least thirty days before the hearing for the decree of adoption. History: 1978 Comp., § 32A-5-31, enacted by Laws 1993, ch. 77, § 158; 2001, ch. 162, § 6. ANNOTATIONS The 2001 amendment, effective June 15, 2001, updated the internal references throughout the section; deleted "a description of" following "shall include" in Subsection A; in Subsection F, inserted "For an adoptee who is under one year of age at the time of placement" at the beginning of the subsection, substituted "for an adoptee who is one year of age or older at the time of placement, the written report shall be filed with the court within one hundred twenty days from the receipt of notice of the proceeding. Concurrently, the deliverer shall forward" for "shall deliver"; and inserted "if the report is not generated by the department" in the second sentence. 32A-5-32. Stepparent adoptions. A. Any person may adopt his spouse's child in accordance with the provisions of the Adoption Act. B. When the adoptee has lived with his stepparent for at least one year following the stepparent's marriage to the custodial parent: (1) placement shall not be required pursuant to Section 32A-5-12 NMSA 1978; (2) a pre-placement study or post-placement report shall not be required unless ordered by the court; (3) when the stepparent and the custodial parent have been married for less than two years, counseling shall be required for the stepparent and the custodial parent; (4) the noncustodial parent shall receive counseling unless counseling is waived; (5) the adoptee, if ten years of age or older, shall receive counseling; (6) a criminal records check shall be conducted on a stepparent pursuant to the provisions of Section 32A-5-14 NMSA 1978; (7) a report of fees and charges shall not be prepared, unless ordered by the court pursuant to Section 32A-5-34 NMSA 1978; (8) the court may waive the ninety-day period between the filing of the petition for adoption and issuance of the decree of adoption; and (9) when adopted, the adoptee shall take the name designated in the adoption petition, so long as the petitioner's spouse and the adoptee, if ten years of age or older, consent to the name. C. When an adoptee has not lived with the stepparent for more than one year following the stepparent's marriage to the custodial parent, the adoption shall proceed as an independent adoption. History: 1978 Comp., § 32A-5-32, enacted by Laws 1993, ch. 77, § 159; 1995, ch. 206, § 40. ANNOTATIONS The 1995 amendment, effective July 1, 1995, in Subsection B, rewrote Paragraphs (1) and (2), added Paragraphs (3) through (6), redesignated former Paragraphs (3) through (5) as Paragraphs (7) through (9), and substituted "32A-5-34" for "32-5-34" in Paragraph (7) and "ten years of age or older" for "older than ten years of age" in Paragraph (9). One-year residency requirement. — The one-year residency provision for stepparent adoptions is not jurisdictional in nature; it is a statutory prerequisite to stepparent adoption and, therefore, the father could not challenge the adoption decree on the basis that the court lacked jurisdiction because the one-year residency requirement was not met. In re Adoption of Webber, 1993-NMCA-099, 116 N.M. 47, 859 P.2d 1074 (Ct. App. 1993). 32A-5-33. Appointment of guardian ad litem or attorney for the adoptee or other party. Upon the motion of any party or upon the court's own motion, the court may appoint a guardian ad litem for the adoptee or for any person found to be incompetent or a child who is a party to the proceeding. In any contested proceeding, the court shall appoint a guardian ad litem for the adoptee. The court may appoint the child's attorney appointed pursuant to the Abuse and Neglect Act if the child is fourteen years of age or older and in the custody of the department. History: 1978 Comp., § 32A-5-33, enacted by Laws 1993, ch. 77, § 160; 2009, ch. 239, § 56. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in the first sentence, after ”adoptee or for any", added "person found to be" and added the last sentence. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. Payment of attorneys fees. — New Mexico Supreme Court has promulgated an order adopting guidelines for the payment of attorney fees for counsel appointed by the court. See Supreme Court, Miscellaneous Order No. 8000, filed November 17, 1987. This order generally governs the method of payment of attorneys appointed to serve as a guardian ad litem in adoption proceedings and authorizes payment of their fees from funds appropriated to the administrative office of the courts. In re Adoption of Stailey, 1994-NMCA-015, 117 N.M. 199, 870 P.2d 161. 32A-5-34. Fees and charges; damages. A. Prior to the final hearing on a petition, the petitioner shall file a full accounting of all disbursements of anything of value made or agreed to be made by or on behalf of the petitioner in connection with an adoption. The accounting report shall be signed under penalty of perjury. The accounting report shall be itemized in detail and shall show the services reasonably relating to the adoption or to the placement of the child for adoption that were received by the parents of the child, by the child or by or on behalf of the petitioner. The report shall also include the dates of each payment and the names and addresses of each attorney, physician, hospital, licensed adoption agency or other person or organization who received any funds or any other thing of value from the petitioner in connection with the adoption or the placement of the child with the petitioner or who participated in any way in the handling of the funds, either directly or indirectly. The requirements of this subsection shall not apply to confirmatory adoptions. B. Only a prospective adoptive parent, acting alone, through an agency or through an attorney who is licensed in this state, shall make payments for services relating to the adoption or to the placement of the adoptee for adoption for allowed expenses only to third-party vendors, as reasonably practical. These payments shall consist of reasonable and actual fees or charges for: (1) the services of an agency in connection with an adoption; (2) medical, hospital, nursing, pharmaceutical, traveling or other similar expenses incurred by a mother or the adoptee in connection with the birth or any illness of an adoptee; (3) reasonable counseling services relating to the adoption; (4) living expenses of a mother and her dependent children, including the adoptee, for a reasonable time before the birth or placement of the adoptee and for no more than six weeks after the birth or placement of the adoptee; (5) expenses incurred for the purposes of full disclosure; (6) legal services, court costs and traveling or other administrative expenses connected with an adoption, including any legal service performed for a parent who consents to the adoption of a child or relinquishes the child to an agency; (7) preparation of a pre-placement study and of a post-placement report during the pendency of the adoption proceeding; or (8) any other service or expense the court finds is reasonably necessary for services relating to the adoption or to the placement of the adoptee for adoption. C. Any person who makes payments that are not permitted pursuant to the provisions of this section is in violation of the Adoption Act and subject to the penalties set forth in Section 32A-5-42 NMSA 1978. D. Any person who threatens or coerces a parent to complete the relinquishment of parental rights or to complete the consent to an adoption, by demanding repayment of expenses or by any other threat or coercion, shall be liable to the parent for compensatory and punitive damages. E. The accounting required in Subsection A of this section is not applicable to stepparent adoptions or to adoptions under the provisions of the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978], unless ordered by the court. F. Nothing in this section shall be construed to permit payment to a woman for conceiving and carrying a child. History: 1978 Comp., § 32A-5-34, enacted by Laws 1993, ch. 77, § 161; 2001, ch. 162, § 7; 2005, ch. 189, § 67; 2012, ch. 28, § 3; 2025, ch. 15, § 5. ANNOTATIONS The 2025 amendment, effective June 20, 2025, provided that the requirements for an accounting report made in connection with an adoption do not apply to confirmatory adoptions; and in Subsection A, after "directly or indirectly" added "The requirements of this subsection shall not apply to confirmatory adoptions.". The 2012 amendment, effective March 3, 2012, permitted only prospective adoptive parents, agencies and attorneys licensed in New Mexico to make payments on behalf of prospective adoptive parents; and in Subsection B, in the first introductory sentence added "Only" and after "adoptive parent", deleted "or another person acting on behalf of a prospective adoptive parent" and added "acting alone, through an agency or through an attorney who is licensed in this state". The 2005 amendment, effective June 17, 2005, in Subsection A, provided that the accounting report shall show services reasonably relating to the adoption or placement. The 2001 amendment, effective June 15, 2001, in Subsection B, inserted "services relating to the adoption or to the placement of the adoptee for adoption for" in the introductory language; in Paragraph B(4), inserted "including the adoptee", substituted "or placement of the adoptee" for "of her child", and added "or placement of the adoptee" at the end of the paragraph; in Paragraph B(8), inserted "for services relating to the adoption or to the placement of the adoptee for adoption"; and updated the internal reference in Subsection C. Law reviews. — For comment, "Stopping the Baby-Trade: Affirming the Value of Human Life Through the Invalidation of Surrogacy Contracts: A Blueprint for New Mexico," see 29 N.M.L. Rev. 407 (1999). 32A-5-35. Open adoptions. A. The parents of the adoptee and the petitioner may agree to contact between the parents and the petitioner or contact between the adoptee and one or more of the parents or contact between the adoptee and relatives of the parents. An agreement shall, absent a finding to the contrary, be presumed to be in the best interests of the child and shall be included in the decree of adoption. The agreement may also include contact between siblings and the adoptee based on a finding that it is in the best interests of the adoptee and the adoptee's siblings and a determination that the siblings' parent, guardian or custodian has consented to the agreement. The contact may include exchange of identifying or nonidentifying information or visitation between the parents or the parents' relatives or the adoptee's siblings and the petitioner or visitation between the parents or the parents' relatives or the adoptee's siblings and the adoptee. An agreement entered into pursuant to this section shall be considered an open adoption. B. The court may appoint a guardian ad litem for the adoptee. The court shall adopt a presumption in favor of appointing a guardian ad litem for the adoptee when visitation between the biological family and the adoptee is included in an agreement; however, this requirement may be waived by the court for good cause shown. When an adoptive placement is made voluntarily through an agency or pursuant to Section 32A-5-13 NMSA 1978, the court may, in its discretion, appoint a guardian ad litem. If the child is fourteen years of age or older, the court may appoint an attorney for the child. In all adoptions other than those in which the child is placed by the department, the court may assess the parties for the cost of services rendered by the guardian ad litem or the child's attorney. The duties of the guardian ad litem or child's attorney end upon the filing of the decree, unless otherwise ordered by the court. C. In determining whether the agreement is in the adoptee's best interests, the court shall consider the adoptee's wishes, but the wishes of the adoptee shall not control the court's findings as to the best interests of the adoptee. D. Every agreement entered into pursuant to provisions of this section shall contain a clause stating that the parties agree to the continuing jurisdiction of the court and to the agreement and understand and intend that any disagreement or litigation regarding the terms of the agreement shall not affect the validity of the relinquishment of parental rights, the adoption or the custody of the adoptee. E. The court shall retain jurisdiction after the decree of adoption is entered, if the decree contains an agreement for contact, for the purpose of hearing motions brought to enforce or modify an agreement entered into pursuant to the provisions of this section. The court shall not grant a request to modify the agreement unless the moving party establishes that there has been a change of circumstances and the agreement is no longer in the adoptee's best interests. History: 1978 Comp., § 32A-5-35, enacted by Laws 1993, ch. 77, § 162; 1995, ch. 206, § 41; 2001, ch. 162, § 8; 2005, ch. 189, § 68; 2009, ch. 239, § 57. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection A, added the third sentence; and in the fourth sentence, in two places, after "parent’s relatives", added "or the adoptee’s siblings". Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, in Subsection A, provided that an agreement entered into pursuant to the is section shall be considered an open adoption; in Subsection B, provided that the court shall adopt a presumption in favor of appointing a guardian ad litem; that the requirement that the court adopt the presumption may be waived for good cause; that if the child is fourteen years of age or older, the court may appoint an attorney for the child; that in adoptions other than those in which the child is placed by the department, the court may assess the parties costs for the services of the child's attorney and that the duties of the child's guardian ad litem or attorney end upon the filing of the decree; and deleted the former provision in Subsection D that this section does not apply to a biological parent who has voluntarily relinquished parental rights and consented to the adoption. The 2001 amendment, effective June 15, 2001, in Subsection B, substituted "included in an agreement" for "contemplated" in the second sentence and added the third sentence; added the last sentence of Subsection D; and inserted "if the decree contains an agreement for contract" in Subsection E. The 1995 amendment, effective July 1, 1995, in Subsection D, made a minor stylistic change and substituted "terms of the agreement shall not affect the validity of the relinquishment of parental rights, the adoption or the custody" for "terms of the agreement after the entry of the decree of adoption shall not affect the validity of the adoption or the custody". Formal agreement required. — Open adoption provided by this section requires a formal agreement between birth parents and prospective adoptive parents. Vigil v. Fogerson, 2006-NMCA-010, 138 N.M. 822, 126 P.3d 1186. 32A-5-36. Adjudication; disposition; decree of adoption. A. The court shall conduct hearings on the petition for adoption so as to determine the rights of the parties in a manner that protects confidentiality. The petitioner and the adoptee shall attend the hearing unless the court for good cause waives a party's appearance. Good cause may include burdensome travel requirements. B. The petitioner shall file all documents required pursuant to the Adoption Act and serve the department with copies of the documents simultaneously with the request for hearing on the petition for adoption. C. If any person who claims to be the biological father of the adoptee has appeared before the court and filed a written petition or response seeking custody and assuming financial responsibility of the adoptee, the court shall hear evidence as to the merits of the petition. If the court determines by a preponderance of the evidence that the person is not the biological father of the adoptee or that the child was conceived through an act of rape or incest, the petition shall be dismissed and the person shall no longer be a party to the adoption. If the court determines that the person is the biological father of the adoptee, the court shall further determine whether the person qualifies as a presumed or acknowledged father whose consent is necessary for adoption, pursuant to Section 32A-5-17 NMSA 1978. If the court determines that the person is the biological father, but does not qualify as a presumed or acknowledged father, the court shall adjudicate the person's rights pursuant to the provisions of the Adoption Act. D. If the mother or father of the adoptee has appeared before the court and filed a written petition that alleges the invalidity of the mother's or father's own consent or relinquishment for adoption previously filed in the adoption proceeding, the court shall hear evidence as to the merits of the petition. If the court determines that the allegations have not been proved by a preponderance of the evidence, the petition shall be dismissed. If the court determines that the allegations of the petition are true, the consent or relinquishment for adoption shall be held invalid, and the court shall determine, in the best interests of the adoptee, the person who shall have custody of the child. E. The petitioner shall present and prove each allegation set forth in the petition for adoption by clear and convincing evidence. F. The court shall grant a decree of adoption if it finds that the petitioner has proved by clear and convincing evidence that: (1) the court has jurisdiction to enter a decree of adoption affecting the adoptee; (2) the adoptee has been placed with the petitioner for a period of ninety days if the adoptee is under the age of one year at the time of placement or for a period of one hundred eighty days if the adoptee is one year of age or older at the time of placement, unless, for good cause shown, the requirement is waived by the court; (3) all necessary consents, relinquishments, terminations or waivers have been obtained; (4) the post-placement report required by Section 32A-5-31 NMSA 1978 has been filed with the court; (5) service of the petition for adoption has been made or dispensed with as to all persons entitled to notice pursuant to provisions of Section 32A-5-27 NMSA 1978; (6) at least ninety days have passed since the filing of the petition for adoption, except the court may shorten or waive this period of time in cases in which the child is being adopted by a stepparent, a relative or a person named in the child's deceased parent's will pursuant to provisions of Section 32A-5-12 NMSA 1978; (7) the petitioner is a suitable adoptive parent and the best interests of the adoptee are served by the adoption; (8) if visitation between the biological family and the adoptee is contemplated, that the visitation is in the child's best interests; (9) if the adoptee is foreign-born, the child is legally free for adoption and a certificate issued by the United States secretary of state that certifies the adoption as a convention adoption has been filed with the court; (10) the results of the criminal records check required pursuant to provisions of the Adoption Act have been received and considered; and (11) if the adoption involves the interstate placement of the adoptee, the requirements of the Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978] have been met. G. In addition to the findings required by Subsection F of this section, the court in any decree of adoption shall make findings with respect to each allegation of the petition. H. If the court determines that any of the requirements for a decree of adoption pursuant to provisions of Subsections E and F of this section have not been met or that the adoption is not in the best interests of the adoptee, the court shall deny the petition and determine, in the best interests of the adoptee, the person who shall have custody of the child. I. The decree of adoption shall include the new name of the adoptee and shall not include any other name by which the adoptee has been known or the names of the former parents. The decree of adoption shall order that from the date of the decree, the adoptee shall be the child of the petitioner and accorded the status set forth in Section 32A-5-37 NMSA 1978. J. A decree of adoption shall be entered within six months of the filing of the petition if the adoptee is under the age of one year at the time of placement or twelve months if the adoptee is one year of age or older at the time of placement, except that the time may be extended by the court upon request of any of the parties or upon the court's own motion for good cause shown. K. A decree of adoption may not be attacked upon the expiration of one year from the entry of the decree. History: 1978 Comp., § 32A-5-36, enacted by Laws 1993, ch. 77, § 163; 1995, ch. 206, § 42; 2003, ch. 294, § 5; 2003, ch. 321, § 5; 2022, ch. 41, § 67. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. The 2022 amendment, effective July 1, 2022, removed provisions related to Indian children which are now covered by the Indian Family Protection Act; in Subsection F, deleted former Paragraphs F(11) and F(12) and redesignated former Paragraph F(13) as Paragraph F(11); in Subsection K, deleted "provided, however, that in any adoption involving an Indian child, the Indian child's parent or Indian custodian may petition the court pursuant to the provisions of the federal Indian Child Welfare Act of 1978 to invalidate the adoption."; and deleted Subsection L. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. The 2003 amendment, effective July 1, 2003, substituted "documents" for "same" near the middle of Subsection B; inserted "and a certificate issued by the United States secretary of state that certifies the adoption as a convention adoption has been filed with the court" following "free for adoption" at the end of Paragraph F(9); and substituted "the Adoption Act" for "Section 32A-5-14 NMSA 1978" following "pursuant to provisions of" near the middle of Paragraph F(10). Laws 2003, ch. 294, § 5 and Laws 2003, ch. 321, § 5 enacted identical amendments to this section. The section was set out as amended by Laws 2003, ch. 321, § 5. See 12-1-8 NMSA 1978. The 1995 amendment, effective July 1, 1995, substituted "32A-5-17" for "32-5-17" near the end of Subsection C; in Subsection F, substituted "32A-5-31" for "32-5-31" in Paragraph (4), substituted "32A-5-27" for "32-5-27" in Paragraph (5), substituted "32A- 5-12" for "32-5-12" in Paragraph (6), and substituted "32A-5-14" for "32-5-14" in Paragraph (10); corrected the subsection reference in Subsection G; in Subsection I, substituted "32A-5-37" for "32-5-37"; and made minor stylistic changes throughout the section. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 40-7-49 NMSA 1978 have been included in the annotations to this section. Jurisdiction to determine custody, adoption or other disposition. — Since court had jurisdiction of the petitions relating to certain children upon the basis they were abandoned children, it was within the jurisdiction of the court: (a) to return these children to the custody of their natural parents; or, (b) to grant the petitions for the adoption of the children; or, (c) to refuse either of the foregoing, and make other temporary or permanent disposition and provision for these children, all to be determined upon one single consideration - the welfare of the children. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. Personal jurisdiction required. — An integral facet of a valid adoption is the requirement that personal jurisdiction must first be acquired by the court over the parties seeking to adopt the child, over the child, and over the parents of the child, and any guardian or agency having custody or control of the child. In re Adoption of Bradfield, 1982-NMCA-047, 97 N.M. 611, 642 P.2d 214. Consent considered before merits of adoption. — The court has no right to consider the merits or demerits of an adoption petition insofar as it concerns the welfare of a child, unless it has in the first instance determined that the consent of a natural parent may be dispensed with. Nevelos v. Railston, 1959-NMSC-013, 65 N.M. 250, 335 P.2d 573. Parent did not qualify as an acknowledged father. — Where the biological father of the child knew that the mother was pregnant; the father registered with the putative father registry after receiving notice of the pending adoption of the child and two months after the child’s birth and placement with the adoptive parents; and the father filed a petition in the adoption proceeding to establish paternity, the father was not an "acknowledged father" and had no statutory right to withhold consent to the child’s adoption. Helen G. v. Mark J. H., 2008-NMSC-002, 143 N.M. 246, 175 P.3d 914. Parents' knowledge of identity of petitioners not condition of jurisdiction. — As the court may or may not decree adoption in favor of persons recommended by the natural parents, it seems most unlikely the legislature intended to impose as a condition to the exercise of the court's jurisdiction knowledge of the identity of petitioners in adoption on the part of the natural parents because even when that circumstance exists, and possibly the further circumstance that the natural parents have investigated the qualifications of the petitioners and given them their unqualified approval, the court may still refuse to decree adoption, the selection of a foster parent being a judicial act and the responsibility being that of the court. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. Child's welfare paramount. — The paramount issue in an adoption proceeding is the welfare of the child. In re Adoption of Bradfield, 1982-NMCA-047, 97 N.M. 611, 642 P.2d 214. Welfare of child not measured altogether by economic factors. — In an adoption proceeding, the welfare and best interest of a child are not measured altogether by material and economic factors; parental love and affection must find some place in the scheme. Gutierrez v. N.M. Dep't of Pub. Welfare, 1964-NMSC-129, 74 N.M. 273, 393 P.2d 12. Counseling not grounds for reopening adoption. — The fact that the mother had not received pre-consent counseling was not a proper ground upon which to reopen an adoption. In re Adoption of Drummond, 1997-NMCA-094, 123 N.M. 727, 945 P.2d 457. Adoption denied where only for securing greater social security check. — Although there is no contention that the petitioner's home was not a proper one, nor is there any intimation that either the petitioner or the natural mother was not a proper person to have custody of the children, the adoption was denied as it was an adoption in name only, lacking all of the elements of the complete severance of the children's ties and relationship with their mother contemplated by the law and within the intent of New Mexico adoption statutes as it was only for the purpose of securing a greater social security check. Gutierrez v. N.M. Dep't of Pub. Welfare, 1964-NMSC-129, 74 N.M. 273, 393 P.2d 12. Entry of order without effect where no adoption existed. — While an order of adoption may be entered nunc pro tunc to cure irregularities that do not affect the jurisdiction of the court, it cannot serve to bring into existence an adoption when no adoption could in fact be deemed to have existed before. In re Adoption of Bradfield, 1982-NMCA-047, 97 N.M. 611, 642 P.2d 214. Authority of court after mother's consent declared invalid. — Where the mother's consent to adoption has been declared invalid in keeping with the best interests of the child, the trial court retains the power to determine custody in the absence of a legally valid consent, and it is within the authority of the trial court to continue the child in the custody of the couple seeking to adopt her. Although they lacked standing to petition the court for adoption, they were not left without remedy, since they did have standing to seek relief. In re Samantha D., 1987-NMCA-082, 106 N.M. 184, 740 P.2d 1168, cert. denied, 106 N.M. 174, 740 P.2d 1158. Death of child prior to final hearing. — The granting of an adoption where the child sought to be adopted has died prior to the final hearing has no effect, as the death deprives the trial court of jurisdiction. In re Adoption of Bradfield, 1982-NMCA-047, 97 N.M. 611, 642 P.2d 214. Court may grant or refuse revocation of consent prior to decree. — Prior to the entry of an adoption decree, the court may grant or refuse revocation of consent, giving due consideration to the circumstances in the particular case, as, for example, the matters giving rise to execution of consent in the first place, a showing or failure to show change of those matters; the situation of the proposed adoptive parents; the length of time which has elapsed since consent has been given; the extent to which the adoptive petitions have relied and acted upon the consent; and all those matters pertaining to the past, present and future welfare of the child. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. Consent may not be arbitrarily revoked. — All that New Mexico statutes require is that consent be filed in the proceedings. Consent may not be arbitrarily revoked prior to adoption, at least where the petitioners for adoption have acted upon the consent and taken the child into their home. Barwin v. Reidy, 1957-NMSC-016, 62 N.M. 183, 307 P.2d 175. Visitation rights of nonparent. — Although granting visitation in an adoption case to a nonparent does affect a parent's custody rights, this is not sufficient reason to apply a blanket rule against such decrees. If at some time the visitation is no longer in the child's best interests, the court may reconsider it. However, because granting visitation rights does infringe on a parent's custody, it is appropriate to limit this decision to situations when the party seeking visitation has acted in a custodial or parental capacity. In re Adoption of Francisco A., 1993-NMCA-144, 116 N.M. 708, 866 P.2d 1175. Consent presumed in child's best interest, absent fraud. — Where natural mother pled on motion to revoke consent that the consent was involuntary in that it was signed too soon after birth, while in the hospital, and while in a state of emotional upset, such petition failed to state a claim upon which relief could be granted, since legislature, by enactment of this section, created a presumption that once there has been a consent by the natural parent, absent fraud, it is in the best interests of the child to proceed with the adoption. In re Adoption of Doe, 1975-NMCA-009, 87 N.M. 253, 531 P.2d 1226, cert. denied, 87 N.M. 239, 531 P.2d 1212. Challenges to decree. — By statutorily placing a definite time limitation for attacking adoption decrees, the legislature intended to ensure that adopted children were given status equal to that of children begotten by marriage; therefore, father's motion for relief from judgment filed five years after the final adoption decree was entered was time- barred. In re Adoption of Webber, 1993-NMCA-099, 116 N.M. 47, 859 P.2d 1074. "Exceptional circumstance" exception to one-year limitation. — Where the best interests of the child demand it, the exceptional circumstance provision of 1-060B (6) NMRA should be used to override the one-year statute of limitations on reopening an adoption decree. In re Adoption of Drummond, 1997-NMCA-094, 123 N.M. 727, 945 P.2d 457. 32A-5-37. Status of adoptee and petitioner upon entry of decree of adoption. A. Once adopted, an adoptee shall take a name designated by the petitioner, except in stepparent adoptions. In stepparent adoptions, the adoptee shall take the new name designated by the petitioner in the petition so long as the petitioner's spouse and the child, if over the age of fourteen years, consent to the new name. The name change need not be requested in the petition. B. After adoption, the adoptee and the petitioner shall sustain the legal relation of parent and child as if the adoptee were the biological child of the petitioner and the petitioner were the biological parent of the child. The adoptee shall have all rights and be subject to all of the duties of that relation, including the right of inheritance from and through the petitioner, and the petitioner shall have all rights and be subject to all duties of that relation, including right of inheritance from and through the adoptee. History: 1978 Comp., § 32A-5-37, enacted by Laws 1993, ch. 77, § 164; 2005, ch. 189, § 69. ANNOTATIONS The 2005 amendment, effective June 17, 2005, changed "ten years" to "fourteen years" and provided that the name change need not be requested in the petition in Subsection A. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 40-7-52 NMSA 1978 have been included in the annotations to this section. Adoption, by all tests, is a status like any other relational status. — It is created by acts of the parties plus the effect of law; it is a relationship which cannot be terminated by the sole will of the parties; it is the source of a bundle of rights, duties and obligations, and is of great interest to the state. It should, then, be treated by the courts in the same way they treat other types of domestic status. Delaney v. First Nat'l Bank, 1963-NMSC-160, 73 N.M. 192, 386 P.2d 711. Adopted children in same legal position as those begotten by marriage. — The legislature has evinced an understanding that adopted children should be placed in the same legal position and are to receive the same consideration as children begotten by the marriage. Hahn v. Sorgen, 1946-NMSC-015, 50 N.M. 83, 171 P.2d 308. Adopted child on level with natural child in construing will. — Wills must be construed in harmony with the public policy of placing an adopted child on a level with natural children. Delaney v. First Nat'l Bank, 73 N.M. 192, 386 P.2d 711 (1963). The public policy in New Mexico is to treat adopted children the same as natural children. An adopted child is grouped with lineal descendants in determining the amount of the decedent's estate which is exempt from inheritance tax, and also imposes an inheritance tax upon estates passing to parent or parents, husband, wife, lineal descendants or legally adopted child. Delaney v. First Nat'l Bank, 1963-NMSC-160, 73 N.M. 192, 386 P.2d 711. Both parents must join adoption application before child heir of both. — A child adopted does not become the heir of both adopting parents unless both join in the application. Dodson v. Ward, 1925-NMSC-046, 31 N.M. 54, 240 P. 991. Child adopted by stepfather may not inherit from natural paternal grandparent. — Where a child was adopted by her stepfather after her natural father's death, but before her natural paternal grandmother's death, the adopted child could not inherit from her natural grandmother. In re Estate of Holt, 1981-NMSC-011, 95 N.M. 412, 622 P.2d 1032. Challenges to decree. — By statutorily placing a definite time limitation for attacking adoption decrees, the legislature intended to ensure that adopted children were given status equal to that of children begotten by marriage; therefore, father's motion for relief from judgment filed five years after the final adoption decree was entered was time- barred. In re Adoption of Webber, 1993-NMCA-099, 116 N.M. 47, 859 P.2d 1074. Visitation rights of nonparent. — Former Section 40-7-52 NMSA 1978 did not limit the children's court's authority to fashion a decree that is in the child's best interests and that includes, if appropriate, visitation rights for third parties with whom the child has close ties. The primary purpose of that statute was to ensure that adopted children can inherit from their adoptive parents. In re Adoption of Francisco A., 1993-NMCA-144, 116 N.M. 708, 866 P.2d 1175. Am. Jur. 2d, A.L.R. and C.J.S. references. — 2 Am. Jur. 2d Adoption § 171 et seq. Adoption as precluding testamentary gift under natural relative's will, 71 A.L.R.4th 374. Postadoption visitation by natural parent, 78 A.L.R.4th 218. Adopted child as within class named in deed or inter vivos trust instrument, 37 A.L.R.5th 237. 2 C.J.S. Adoption of Persons §§ 140 to 154. 32A-5-38. Birth certificates. A. Within thirty days after an adoption decree becomes final, the petitioner shall prepare an application for a birth certificate in the new name of the adoptee, showing the petitioner as the adoptee's parent, and shall provide the application to the clerk of the court. The petitioner shall forward the application: (1) for a person born in the United States, to the appropriate vital statistics office of the place, if known, where the adoptee was born; or (2) for all other persons, to the state registrar of vital statistics. In the case of the adoption of a person born outside the United States, if requested by the petitioner, the court shall make findings, based on evidence from the petitioner and other reliable state or federal sources, on the date and place of birth of the adoptee. These findings shall be certified by the court and included with the application for a birth certificate. B. The state registrar of vital statistics shall prepare a birth record in the new name of the adoptee in accordance with the vital statistics laws, but subject to the requirements of the Adoption Act as to the confidentiality of adoption records. History: 1978 Comp., § 32A-5-38, enacted by Laws 1993, ch. 77, § 165; 2005, ch. 189, § 70. ANNOTATIONS Cross references. — For new birth certificates following adoption, legitimation and paternity determination, see 24-14-17 NMSA 1978. The 2005 amendment, effective June 17, 2005, in Subsection A, changed "clerk of the court" to "petitioner". 32A-5-39. Recognition of foreign decrees. A. Every decree or order of adoption terminating the parent-child relationship or establishing the relationship of parent and child by adoption entered by a court or other entity in another country acting pursuant to that country's law or pursuant to any convention or treaty or intercountry adoption that the United States has ratified shall be recognized in this state, so that the rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined as though the decree or order of adoption were issued by the courts of this state. B. A convention adoption in a foreign country that is certified by the United States secretary of state shall be recognized as a final adoption in this state. History: 1978 Comp., § 32A-5-39, enacted by Laws 1993, ch. 77, § 166; 2003, ch. 294, § 6; 2003, ch. 321, § 6; 2005, ch. 189, § 71. ANNOTATIONS The 2005 amendment, effective June 17, 2005, provided that every decree or order of adoption entered by a court or other entity in another country pursuant to that country's law or any convention or treaty or intercountry adoption that the United States has ratified shall be recognized in New Mexico. The 2003 amendment, effective July 1, 2003, inserted the Subsection A designation and added Subsection B. Laws 2003, ch. 294, § 6 and Laws 2003, ch. 321, § 6 enacted identical amendments to this section. The section was set out as amended by Laws 2003, ch. 321, § 6. See 12-1-8 NMSA 1978. 32A-5-39.1. Application of the federal Intercountry Adoption Act. The protections and requirements set forth in the federal Intercountry Adoption Act apply to all proceedings involving a convention adoption. History: Laws 2003, ch. 294, § 7 and Laws 2003, ch. 321, § 7. ANNOTATIONS Cross references. — For the Intercountry Adoption Act, see 42 U.S.C. § 14901 et seq. Duplicate laws. — Laws 2003, ch. 294, § 7, and Laws 2003, ch. 321, § 7, enacted identical sections of law, effective July 1, 2003. Both were compiled as 32A-5-39.1 NMSA 1978. See 12-1-8 NMSA 1978. 32A-5-40. Post-decree of adoption access to records. A. After the decree of adoption has been entered, all court files containing records of judicial proceedings conducted pursuant to the provisions of the Adoption Act and records submitted to the court in the proceedings shall be kept in separate locked files withheld from public inspection. Upon application to the clerk of the court, the records shall be open to inspection by a former parent if the adoptee is eighteen years of age or older, by an adoptee if the adoptee is eighteen years of age or older at the time application is made for inspection, by the adoptive parent if the adoptee is under eighteen years of age at the time application is made for inspection, by the attorney of any party, by any agency that has exercised guardianship over or legal custody of a child who was the adoptee in the particular proceeding, by the department or by an adoptee's sibling; provided that the identity of the former parents and of the adoptee shall be kept confidential unless the former parents and the adoptee have consented to the release of identity. In the absence of consent to release identity, the inspection shall be limited to the following nonidentifying information: (1) the health and medical histories of the adoptee's biological parents; (2) the health and medical history of the adoptee; (3) the adoptee's general family background, including ancestral information, without name references or geographical designations; (4) physical descriptions; and (5) the length of time the adoptee was in the care and custody of persons other than the petitioner. B. After the entry of the decree of adoption, at any time, a former parent may file with the court, with the placing agency or with the department: (1) a consent or refusal or an amended consent or refusal to be contacted; (2) a release of the former parent's identity to the adoptee if the adoptee is eighteen years of age or older or to the adoptive parent if the adoptee is under eighteen years of age; or (3) information regarding the former parent's location or changes in background information. C. Any changes to post-adoption access to records referred to in Subsection B of this section shall be filed with the court, the placing agency and the department. D. The consent or refusal referred to in Subsection B of this section shall be honored by the court, the placing agency or the department unless for good cause the court orders to the contrary. E. At any time, an adoptee who is eighteen years of age or older may file with the court, a placing agency or the department: (1) information regarding the adoptee's location; or (2) a consent or refusal regarding opening of the adoptee's adoption file to the adoptee's former parents. F. If mutual authorizations for release of identifying information by the parties are not available, an adoptee who is eighteen years of age or older, the biological parents if the adoptee is eighteen years of age or older or the adoptive parents if the adoptee is under the age of eighteen years may file a motion with the court to obtain the release of identifying information for good cause shown. When hearing the motion, the court shall give primary consideration to the best interests of the adoptee, but shall also give due consideration to the interests of the members of the adoptee's former and adoptive families. In determining whether good cause exists for the release of identifying information, the court shall consider: (1) the reason the information is sought; (2) any procedure available for satisfying the petitioner's request without disclosing the name or identity of another individual, including appointment of a confidential intermediary to contact the individual and request specific information; (3) whether the individual about whom identifying information is sought is alive; (4) the preference, to the extent known, of the adoptee, the adoptive parents, the former parents and other members of the adoptee's former and adoptive families and the likely effect of disclosure on those individuals; (5) the age, maturity and expressed needs of the adoptee; (6) the report or recommendation of any individual appointed by the court to assess the request for identifying information; and (7) any other factor relevant to an assessment of whether the benefit to the adoptee of releasing the information sought will be greater than the benefit to any other individual of not releasing the information. History: 1978 Comp., § 32A-5-40, enacted by Laws 1993, ch. 77, § 167; 1995, ch. 206, § 43; 1997, ch. 34, § 13; 2005, ch. 189, § 72; 2022, ch. 41, § 68. ANNOTATIONS The 2022 amendment, effective July 1, 2022, removed provisions related to Indian children which are now covered by the Indian Family Protection Act; and deleted Subsections G and H. The 2005 amendment, effective June 17, 2005, added Subsection C to provide that any changes to post-adoption access to records shall be filed with the court, the placing agency and the department. The 1997 amendment, effective July 1, 1997, substituted "by the department or by an adoptee's sibling", for "or by the department" in the second sentence of the introductory language in Subsection A. The 1995 amendment, effective July 1, 1995, added "a placing agency or the department" at the end of Subsection D, and added Subsections F and G. 32A-5-41. Appointment of confidential intermediary. A. The court may appoint a confidential intermediary to ascertain whether an individual is willing to be contacted, is willing to release his name or identity or is willing to meet or otherwise communicate about any condition that may affect the moving party's physical or mental health, upon petition to the court by: (1) an adoptee who is eighteen years of age or older; (2) an adoptive parent of an adoptee who is less than eighteen years of age; (3) an adoptee's former parent, when the adoptee is eighteen years of age or older; or (4) an adoptee's sibling. B. The confidential intermediary shall make a reasonable effort to determine if the individual whose identity is sought by the petitioner has filed a signed document authorizing or refusing to authorize the release of the individual's name or identity. C. When the confidential intermediary finds a signed authorization for a party to be contacted or for the release of identifying information, the intermediary shall release that information to the petitioner. Upon the petitioner's written request, the intermediary may assist the petitioner in locating the individual who authorized the release of identifying information, in ascertaining whether the individual is willing to meet or communicate with the petitioner and in facilitating a meeting or other communication. D. When the confidential intermediary finds a signed refusal to authorize the release of identifying information, the intermediary shall report this to the petitioner and the court and shall not attempt to locate or contact the individual who has refused to authorize contact or the release of identifying information. The petitioner may then withdraw the petition or request the release of identifying information for good cause shown, pursuant to the provisions of Section 32A-5-40 NMSA 1978. E. When the confidential intermediary does not find any documents concerning the release of identifying information or if the intermediary finds a document indicating that an individual whose identity is sought by the petitioner is undecided about whether to release identifying information, the intermediary shall make a reasonable search for and discreetly contact the individual to ascertain whether the individual is willing to release information to the petitioner or willing to meet or communicate with the petitioner, whom the intermediary may describe to the individual only in general, nonidentifying terms. When the individual consents in writing to the release of information, the intermediary shall release the information to the petitioner, and upon the mutual written request and consent of the petitioner and the individual, the intermediary shall facilitate a meeting or other communication between the petitioner and the individual. If the individual refuses to authorize the release of information sought by the petitioner, the intermediary shall report this to the petitioner and the court and the petitioner may withdraw the motion or file a motion with the court for an order to release identifying information for good cause shown, pursuant to provisions of Section 32A-5-40 NMSA 1978. F. When an individual sought by the confidential intermediary is deceased, the intermediary shall report this to the petitioner and the court and, upon the petitioner's request, the court shall determine on the basis of the factors listed in Section 32A-5-40 NMSA 1978 whether good cause exists to release identifying information about the individual to the petitioner. G. When an individual sought by the confidential intermediary cannot be located within a year, the intermediary shall report this to the petitioner and the court. The court may authorize an additional search for a specified period of time or determine on the basis of the factors listed in Section 32A-5-40 NMSA 1978 whether good cause exists to release identifying information about the individual to the petitioner. H. A confidential intermediary may charge the petitioner for actual expenses incurred in providing a service requested under this section. Upon motion by the intermediary, the court may authorize a reasonable fee in addition to the expenses. I. A confidential intermediary shall complete training provided by the department or any other entity approved by the court and shall file an oath of confidentiality in every court in which the intermediary expects to serve. J. The confidential intermediary oath shall state: "I, ________________________, signing under penalty of perjury, affirm that I have completed the requisite training for a confidential intermediary in this state. I will not disclose to the petitioner, directly or indirectly, any identifying information in sealed records except under the conditions specified in this section. I will conduct a reasonable search for an individual being sought and make a discreet and confidential inquiry as to whether the individual consents to the release of identifying or medical information to the petitioner or to meeting or communicating with the petitioner. I will report to the petitioner or the court the results of my search and inquiry, along with any signed request or consent I receive from the individual. If the individual and the petitioner request and consent in writing to meet or communicate with each other, I will act in accordance with the instructions of the petitioner or the court to facilitate any meeting or communication between them. I will not charge or accept any fee for my services except for reimbursement from the petitioner for actual expenses incurred in performing my services or as authorized by the court. I recognize that unauthorized release of information is a violation of the Adoption Act and subjects me to penalties pursuant to the provisions of Section 32A-5-42 NMSA 1978 and may subject me to being found in contempt of court with penalties, dismissal by the court and civil liability." History: 1978 Comp., § 32A-5-41, enacted by Laws 1993, ch. 77, § 168; 1995, ch. 206, § 44; 1997, ch. 34, § 14. ANNOTATIONS The 1997 amendment, effective July 1, 1997, added Paragraph A(4) and made minor stylistic changes at the end of Paragraphs A(2) and A(3). The 1995 amendment, effective July 1, 1995, substituted "32A-5-40" for "32-5-40" in Subsections D, E, F, and G, substituted "32A-5-42" for "32-5-42" in Subsection J, and made minor stylistic changes throughout the section. 32A-5-42. Penalties. A. Any person other than an agency who, in the regular course of business, selects an adoptive family for a prospective adoptee or arranges for the selection is guilty of a misdemeanor and subject to imprisonment in the county jail for a definite term of less than one year or to the payment of a fine of not more than one thousand dollars ($1,000), or to both, the penalties to be in the discretion of the judge, for each occurrence; provided, that the exchange of information between persons regarding the existence of a potential adoptee or potential adoptive family shall not be a violation of this section. B. Any person who violates any provision of the Adoption Act is guilty of a misdemeanor and subject to imprisonment in the county jail for a definite term of less than one year or to the payment of a fine of not more than one thousand dollars ($1,000), or both, the penalties to be in the discretion of the judge, for each occurrence. History: 1978 Comp., § 32A-5-42, enacted by Laws 1993, ch. 77, § 169. 32A-5-42.1. Unauthorized adoption facilitation; penalties. A. A person, other than a person described in Subsection C of this section, who knowingly or intentionally engages in adoption services with a person in this state for compensation is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 32A-5-42 NMSA 1978. B. A violation of this section constitutes an unfair or deceptive trade practice pursuant to the Unfair Practices Act [Chapter 57, Article 12 NMSA 1978]. C. This section does not apply to the following persons: (1) the department, a person authorized to act on behalf of the department or a similar agency in another state; (2) an investigator or counselor; (3) an agency licensed pursuant to the laws of this state or another state that is providing an adoption service within that state to a parent, prospective adoptive parent or a specific and identified adoptee who resides in that state; (4) an attorney licensed to practice law in this state or in another state who is providing a legal service within and pursuant to the laws of that state to a parent, prospective adoptive parent or a specific and identified adoptee who resides in that state; (5) an agency facilitating the adoption of a foreign born child; (6) an agency facilitating a new placement of a child following a disruption or termination of an adoption; or (7) a prospective adoptive parent or biological parent acting alone on the parent's own behalf. History: Laws 2012, ch. 28, § 4. ANNOTATIONS Emergency clauses. — Laws 2012, ch. 28, § 6 contained an emergency clause and was approved on March 3, 2012. 32A-5-42.2. Advertising adoption services; requirements; penalties. A. A person, other than a person described in Subsection E of this section, shall not advertise adoption services unless the advertisement includes the following statement: "WARNING: (INSERT NAME OF PERSON ADVERTISED) IS NOT ACCREDITED, CERTIFIED OR LICENSED TO PROVIDE ADOPTION SERVICES WITHIN NEW MEXICO.". If the advertisement is in print, the required statement shall be entirely in uppercase letters and in a print size no smaller than that generally used in the advertisement. If the advertisement is spoken, the required statement shall be spoken at the same pace and volume as that generally used in the advertisement. B. A person who violates this section is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 32A-5-42 NMSA 1978. C. A violation of this section constitutes an unfair or deceptive trade practice pursuant to the Unfair Practices Act [Chapter 57, Article 12 NMSA 1978]. D. For purposes of this section, "advertise" means to communicate, market, promote, induce or solicit by public media originating or distributed in New Mexico, including newspapers, periodicals, telephone book listings, outdoor advertising, radio, television or other electronic media. E. This section does not apply to: (1) the department or a person authorized to act on behalf of the department; (2) an agency licensed by the department; (3) an investigator or counselor; (4) an attorney licensed in the state who advertises legal services relating to adoption; or (5) a prospective adoptive parent who is acting alone on the prospective adoptive parent's own behalf and who has a current, approved pre-placement study as required by the department. F. An advertising, marketing or promotional medium that accepts and publishes or otherwise distributes in good faith an advertisement that does not meet the requirements of this section is not subject to civil or criminal penalties pursuant to this section. History: Laws 2012, ch. 28, § 5. ANNOTATIONS Emergency clauses. — Laws 2012, ch. 28, § 6 contained an emergency clause and was approved on March 3, 2012. 32A-5-43. Purpose of subsidized adoptions. It is the purpose of Sections 32-5-43 [32A-5-43] through 32-5-45 [32A-5-45] NMSA 1978 to encourage and promote the placement of children who are difficult to place in permanent homes through a subsidized program within the social services division of the department. History: 1978 Comp., § 32A-5-43, enacted by Laws 1993, ch. 77, § 170. 32A-5-44. Eligibility for subsidized adoptions. A. The social services division of the human services department [health care authority department] may make payments to adoptive parents or to medical vendors on behalf of a child placed for adoption by the division or by an agency when the division determines that: (1) the child is difficult to place; and (2) the adoptive family is capable of providing the permanent family relationship needed by the child in all respects, except that the needs of the child are beyond the economic resources and ability of the family. B. As used in Sections 32A-5-43 through 32A-5-45 NMSA 1978, a "difficult to place child" means a child who has a mental, physical or emotional disability or who is in special circumstances by virtue of age, sibling relationship or racial background. History: 1978 Comp., § 32A-5-44, enacted by Laws 1993, ch. 77, § 171; 2007, ch. 46, § 39. ANNOTATIONS Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Laws 2023, ch. 205, § 16 provided that references to the human services department shall be deemed to be references to the health care authority department. The 2007 amendment, effective June 15, 2007, made non-substantive language changes. 32A-5-45. Administration of subsidized adoptions. A. The department shall promulgate all necessary regulations for the administration of the program of subsidized adoptions or placement with permanent guardians. B. Subsidy payments may include payments to vendors for medical and surgical expenses and payments to the adoptive parents or permanent guardians for maintenance and other costs incidental to the adoption, care, training and education of the child. The payments in any category of assistance shall not exceed the cost of providing the assistance in foster care. Payments shall not be made under this section after the child reaches eighteen years of age, except as provided in Subsection C of this section. C. Payments may extend until the child is twenty-one years of age if: (1) the child is enrolled in the medically fragile waiver program; or (2) the adoption assistance agreement was in effect when the child was at least sixteen years of age and, when the child is at least eighteen years of age and under twenty-one years of age, the child is: (a) completing secondary education or an educational program leading to an equivalent credential; (b) enrolled in an institution that provides post-secondary or vocational education; (c) participating in a program or activity designed to promote employment or remove barriers to employment; (d) employed for at least eighty hours per month; or (e) incapable of doing any of the activities described in Subparagraphs (a) through (d) of this paragraph due to a medical or behavioral condition that is supported by regularly updated information in a transition plan as provided in the Fostering Connections Act [Chapter 32A, Article 26 NMSA 1978]. D. A written agreement between the adoptive family or permanent guardians and the department shall precede the decree of adoption or permanent guardianship. The agreement shall incorporate the terms and conditions of the subsidy plan based on the individual needs of the child within the permanent family. In cases of subsidies that continue for more than one year, there shall be an annual redetermination of the need for a subsidy. The department shall develop an appeal procedure whereby a permanent family may contest a division determination to deny, reduce or terminate a subsidy. History: 1978 Comp., § 32A-5-45, enacted by Laws 1993, ch. 77, § 172; 2005, ch. 189, § 73; 2019, ch. 149, § 13; 2020, ch. 52, § 2. ANNOTATIONS The 2020 amendment, effective May 20, 2020, extended payments for subsidized adoptions until age 21 if the child meets certain specified criteria; in Subsection B, after "the child reaches eighteen years of age, except", deleted "for a child who is enrolled in the medically fragile waiver program, in which case the payments may extend until the child is twenty-one years of age. Payments shall be made pursuant to this section until a child reaches twenty-one years of age if" and added "as provided in Subsection C of this section."; added new subsection designation "C." and redesignated former Subsection C as Subsection D; in Subsection C, added "Payments may extend until the child is twenty-one years of age if", added new Paragraph C(1) and new paragraph designation "(2)" and redesignated former Paragraphs (1) through (5) as Subparagraphs C(2)(a) through C(2)(e), respectively, in Paragraph C(2), in the introductory clause, after "sixteen years of age and", deleted "between the ages of eighteen and" and added "when the child is at least eighteen years of age and under", in Subparagraph C(2)(a), added "an educational" preceding "program", in Subparagraph C(2)(c), after "designed to promote", added "employment", and in Subparagraph C(2)(e), after "activities described in", deleted "Paragraph (1) through (4) of this subsection" and added "Subparagraphs (a) through (d) of this paragraph", and after "behavioral condition", deleted "and provides evidence of the child’s incapability, which evidence is supported by regularly updated information" and added "that is supported by regularly updated information in a transition plan as provided in the Fostering Connections Act"; and deleted former Subsection D. The 2019 amendment, effective June 14, 2019, extended adoption assistance subsidy payments for certain individuals; in Subsection B, added "Payments shall be made pursuant to this section until a child reaches twenty-one years of age if the adoption assistance agreement was in effect when the child was at least sixteen years of age and, between the ages of eighteen and twenty-one years of age, the child:", and added Paragraphs B(1) through B(5); and added Subsection D. The 2005 amendment, effective June 17, 2005, in Subsection B, provided that payments shall not be made after the child reaches eighteen years of age, except for a child who is enrolled in a medically fragile waiver program, in which case the payments may be extended until the child is twenty-one years of act. 32A-5-46. Confirmatory adoption. A. Whenever a child is born as a result of assisted reproduction and a person or persons who did not give birth is a parent or parents and seeks to confirm parentage through an adoption of the child, the court shall permit the parent to file a petition for adoption in accordance with this section. B. Notwithstanding any other provisions of the Adoption Act, a petition for confirmatory adoption shall include the following: (1) signatures from all petitioners for confirmatory adoption; (2) if any of the petitioners are married, a copy of the petitioners' marriage certificate; (3) a declaration signed by all petitioners explaining the circumstances of the child's birth through assisted reproduction, attesting that the petitioners are parents and that there are no other persons with a claim to parentage of the child; and (4) a certified copy of the child's birth certificate. C. Submission of a complete petition for confirmatory adoption constitutes notice of and written consent to the confirmatory adoption, and the court shall not require any additional notice or consent by any petitioner. D. If a petitioner for confirmatory adoption conceived the child through assisted reproduction using a donor, the court shall not require notice of the confirmatory adoption to that donor or the consent of that donor to the confirmatory adoption. E. Unless otherwise ordered by the court for good cause shown and supported by written findings of the court demonstrating good cause, for the purposes of evaluating and granting a petition for confirmatory adoption pursuant to this section, the court shall not require: (1) placement; (2) a pre-placement study or post-placement report, including home visits, interviews, medical exams or certificates, employment or financial resource verification, letters of reference or examination of a petitioner's capacity or readiness; (3) counseling for any parent, presumed parent or child; (4) a criminal records check; (5) documentation of fees or charges related to the confirmatory adoption; (6) a minimum residency in the home of the petitioners; (7) a best interest of the child assessment; or (8) a hearing or appearance. F. The court shall grant a petition for confirmatory adoption within thirty days of the petition being filed upon finding that: (1) the child was born through assisted reproduction to parents joined in marriage, one of the petitioners gave birth to the child and there are no competing claims of parentage; or (2) the child was born through assisted reproduction with the consent of all petitioners, one of the petitioners gave birth to the child, the other petitioner or petitioners are parents and there are no competing claims of parentage. G. A petition for confirmatory adoption shall not be denied on the basis that: (1) any of the petitioners' parentage is already presumed or legally recognized in this state; (2) the petitioners are unmarried; or (3) there are more than two petitioners. H. When parentage is presumed or legally recognized under state law, the fact that a party did not petition for confirmatory adoption shall not be considered as evidence in determining: (1) parental rights disputes; or (2) the best interest of a child. History: 1978 Comp., § 32A-5-46, enacted by Laws 2025, ch. 15, § 6. ANNOTATIONS Effective dates. — Laws 2025, ch. 15 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. ARTICLE 6 Children's Mental Health and Developmental Disabilities (Repealed.) 32A-6-1. Repealed. History: Laws 1995, ch. 207, § 1; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-1 NMSA 1978, as enacted by Laws 1995, ch. 207, § 1, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-2. Repealed. History: Laws 1995, ch. 207, § 2; 1999, ch. 254, § 1; 2007, ch. 46, § 40; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-2 NMSA 1978, as enacted by Laws 1995, ch. 207, § 2, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. Compiler’s notes. — Laws 2007, ch. 46, § 40 amended this section and Laws 2007, ch. 162, § 31 repealed this section. Laws 2007, ch. 46, § 40, effective June 15, 2007, made non-substantive language changes. This section was repealed by Laws 2007, ch. 162, § 31. See 12-1-8 NMSA 1978. 32A-6-3. Repealed. History: Laws 1995, ch. 207, § 3; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-3 NMSA 1978, as enacted by Laws 1995, ch. 207, § 3, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-4. Repealed. History: Laws 1995, ch. 207, § 4; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-4 NMSA 1978, as enacted by Laws 1995, ch. 207, § 4, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-5. Repealed. History: Laws 1995, ch. 207, § 5; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-5 NMSA 1978, as enacted by Laws 1995, ch. 207, § 5, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-6. Repealed. History: Laws 1995, ch. 207, § 6; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-6 NMSA 1978, as enacted by Laws 1995, ch. 207, § 6, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-7. Repealed. History: Laws 1995, ch. 207, § 7; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-7 NMSA 1978, as enacted by Laws 1995, ch. 207, § 7, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-8. Repealed. History: Laws 1995, ch. 207, § 8; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-8 NMSA 1978, as enacted by Laws 1995, ch. 207, § 8, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-9. Repealed. History: Laws 1995, ch. 207, § 9; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-9 NMSA 1978, as enacted by Laws 1995, ch. 207, § 9, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-10. Repealed. History: Laws 1995, ch. 207, § 10; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-10 NMSA 1978, as enacted by Laws 1995, ch. 207, § 10, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-10.1. Repealed. ANNOTATIONS Repeals. — Laws 1999, ch. 254, § 5 repealed 32A-6-10.1 NMSA 1978, as enacted by Laws 1995, ch. 207, § 11, relating to resource consultants for children placed in residential treatment or habilitation programs, effective July 1, 1999. For provisions of former section, see the 1998 NMSA 1978 NMOneSource.com. 32A-6-11. Repealed. History: Laws 1995, ch. 207, § 12; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-11 NMSA 1978, as enacted by Laws 1995, ch. 207, § 12, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-11.1. Repealed. History: Laws 1995, ch. 207, § 13; 1999, ch. 254, § 2; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-11.1 NMSA 1978, as enacted by Laws 1995, ch. 207, § 13, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-12. Repealed. History: Laws 1995, ch. 207, § 14; 1999, ch. 254, § 3; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-12 NMSA 1978, as enacted by Laws 1995, ch. 207, § 14, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-13. Repealed. History: Laws 1995, ch. 207, § 15; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-13 NMSA 1978, as enacted by Laws 1995, ch. 207, § 15, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-14. Repealed. History: Laws 1995, ch. 207, § 16; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-14 NMSA 1978, as enacted by Laws 1995, ch. 207, § 16, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-15. Repealed. History: Laws 1995, ch. 207, § 17; 1998, ch. 32, § 1; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-15 NMSA 1978, as enacted by Laws 1995, ch. 207, § 17, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-16. Repealed. History: Laws 1995, ch. 207, § 18; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-16 NMSA 1978, as enacted by Laws 1995, ch. 207, § 18, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-17. Repealed. History: Laws 1995, ch. 207, § 19; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-17 NMSA 1978, as enacted by Laws 1995, ch. 207, § 19, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-18. Repealed. History: Laws 1995, ch. 207, § 20; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-18 NMSA 1978, as enacted by Laws 1995, ch. 207, § 20, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-19. Repealed. History: Laws 1995, ch. 207, § 21; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-19 NMSA 1978, as enacted by Laws 1995, ch. 207, § 21, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-20. Repealed. History: Laws 1995, ch. 207, § 22; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-20 NMSA 1978, as enacted by Laws 1995, ch. 207, § 22, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-21. Repealed. History: Laws 1995, ch. 207, § 23; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-21 NMSA 1978, as enacted by Laws 1995, ch. 207, § 23, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. 32A-6-22. Repealed. History: Laws 1995, ch. 207, § 24; repealed by Laws 2007, ch. 162, § 31. ANNOTATIONS Repeals. — Laws 2007, ch. 162, § 31 repealed 32A-6-22 NMSA 1978, as enacted by Laws 1995, ch. 207, § 24, effective June 15, 2007. For provisions of former section, see the 2006 NMSA 1978 on NMOneSource.com. ARTICLE 6A Children's Mental Health and Developmental Disabilities 32A-6A-1. Short title. This act [32A-6A-1 to 32A-6A-30 NMSA 1978] may be cited as the "Children's Mental Health and Developmental Disabilities Act". History: Laws 2007, ch. 162, § 1. ANNOTATIONS Cross references. — For Adult Mental Health and Developmental Disabilities Code, see 43-1-2 NMSA 1978. For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, see the 2006 NMSA 1978 (32A-6-1) on NMOneSource.com. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. Law reviews. — For article, "Treating Children Under the New Mexico Mental Health and Developmental Disabilities Code," see 10 N.M.L. Rev. 279 (1980). For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980). For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981). 32A-6A-2. Purposes. The purposes of the Children's Mental Health and Developmental Disabilities Act are to: A. provide children with access to appropriate assessments, services and treatment; B. provide children access to a continuum of services to address their habilitation and treatment needs; C. provide children with access to services for identification, prevention and intervention for developmental and mental health needs; D. promote delivery of services in a culturally appropriate, responsive and respectful manner; E. protect the substantive and procedural rights of children regardless of service setting; and F. encourage support for family as critical members of the treatment or habilitation team whenever clinically appropriate. History: Laws 2007, ch. 162, § 2. ANNOTATIONS Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-3. Scope. The provisions of the Children's Mental Health and Developmental Disabilities Act shall apply to all children in New Mexico except as otherwise set forth in the Children's Code. History: Laws 2007, ch. 162, § 3. ANNOTATIONS Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-4. Definitions. As used in the Children's Mental Health and Developmental Disabilities Act: A. "aversive intervention" means any device or intervention, consequences or procedure intended to cause pain or unpleasant sensations, including interventions causing physical pain, tissue damage, physical illness or injury; electric shock; isolation; forced exercise; withholding of food, water or sleep; humiliation; water mist; noxious taste, smell or skin agents; and over-correction; B. "behavioral health services" means a comprehensive array of professional and ancillary services for the treatment, habilitation, prevention and identification of mental illnesses, behavioral symptoms associated with developmental disabilities, substance abuse disorders and trauma spectrum disorders; C. "capacity" means a child's ability to: (1) understand and appreciate the nature and consequences of proposed health care, including its significant benefits, risks and alternatives to proposed health care; and (2) make and communicate an informed health care decision; D. "chemical restraint" means a medication that is not standard treatment for the patient's medical or psychiatric condition that is used to control behavior or to restrict a patient's freedom of movement; E. "child" means a person who is a minor; F. "clinician" means a person whose licensure allows the person to make independent clinical decisions, including a physician, licensed psychologist, psychiatric nurse practitioner, licensed independent social worker, licensed marriage and family therapist and licensed professional clinical counselor; G. "continuum of services" means a comprehensive array of emergency, outpatient, intermediate and inpatient services and care, including screening, early identification, diagnostic evaluation, medical, psychiatric, psychological and social service care, habilitation, education, training, vocational rehabilitation and career counseling; H. "developmental disability" means a severe chronic disability that: (1) is attributable to a mental or physical impairment or a combination of mental or physical impairments; (2) is manifested before a person reaches twenty-two years of age; (3) is expected to continue indefinitely; (4) results in substantial functional limitations in three or more of the following areas of major life activities: (a) self-care; (b) receptive and expressive language; (c) learning; (d) mobility; (e) self-direction; (f) capacity for independent living; or (g) economic self-sufficiency; and (5) reflects a person's need for a combination and sequence of special, interdisciplinary or other supports and services that are of lifelong or extended duration that are individually planned or coordinated; I. "evaluation facility" means a community mental health or developmental disability program, a medical facility having psychiatric or developmental disability services available or, if none of the foregoing is reasonably available or appropriate, the office of a licensed physician or a licensed psychologist, any of which shall be capable of performing a mental status examination adequate to determine the need for appropriate treatment, including possible involuntary treatment; J. "family" means persons with a kinship relationship to a child, including the relationship that exists between a child and a biological or adoptive parent, relative of the child, a step-parent, a godparent, a member of the child's tribe or clan or an adult with whom the child has a significant bond; K. "habilitation" means services, including behavioral health services based on evaluation of the child, that are aimed at assisting the child to prevent, correct or ameliorate a developmental disability. The purpose of habilitation is to enable the child to attain, maintain or regain maximum functioning or independence. "Habilitation" includes programs of formal, structured education and treatment and rehabilitation services; L. "individual instruction" means a child's direction concerning a mental health treatment decision for the child, made while the child has capacity and is fourteen years of age or older, which is to be implemented when the child has been determined to lack capacity; M. "least restrictive means principle" means the conditions of habilitation or treatment for the child, separately and in combination that: (1) are no more harsh, hazardous or intrusive than necessary to achieve acceptable treatment objectives for the child; (2) involve no restrictions on physical movement and no requirement for residential care, except as reasonably necessary for the administration of treatment or for the protection of the child or others from physical injury; and (3) are conducted at the suitable available facility closest to the child's place of residence; N. "legal custodian" means a biological or adoptive parent of a child unless legal custody has been vested in a person, department or agency and also includes a person appointed by an unexpired power of attorney; O. "licensed psychologist" means a person who holds a current license as a psychologist issued by the New Mexico state board of psychologist examiners; P. "likelihood of serious harm to self" means that it is more likely than not that in the near future a child will attempt to commit suicide or will cause serious bodily harm to the child by violent or other self-destructive means, as evidenced by behavior causing, attempting or threatening such harm, which behavior gives rise to a reasonable fear of such harm from the child; Q. "likelihood of serious harm to others" means that it is more likely than not that in the near future the child will inflict serious bodily harm on another person or commit a criminal sexual offense, as evidenced by behavior causing, attempting or threatening such harm, which behavior gives rise to a reasonable fear of such harm from the child; R. "mechanical restraint" means any device or material attached or adjacent to the child's body that restricts freedom of movement or normal access to any portion of the child's body and that the child cannot easily remove but does not include mechanical supports or protective devices; S. "mechanical support" means a device used to achieve proper body position, designed by a physical therapist and approved by a physician or designed by an occupational therapist, such as braces, standers or gait belts, but not including protective devices; T. "medically necessary services" means clinical and rehabilitative physical, mental or behavioral health services that are: (1) essential to prevent, diagnose or treat medical conditions or are essential to enable the child to attain, maintain or regain functional capacity; (2) delivered in the amount, duration, scope and setting that is clinically appropriate to the specific physical, mental and behavioral health care needs of the child; (3) provided within professionally accepted standards of practice and national guidelines; and (4) required to meet the physical, mental and behavioral health needs of the child and are not primarily for the convenience of the child, provider or payer; U. "mental disorder" means a substantial disorder of the child's emotional processes, thought or cognition, not including a developmental disability, that impairs the child's: (1) functional ability to act in developmentally and age-appropriate ways in any life domain; (2) judgment; (3) behavior; and (4) capacity to recognize reality; V. "mental health or developmental disabilities professional" means a person who by training or experience is qualified to work with persons with mental disorders or developmental disabilities; W. "out-of-home treatment or habilitation program" means an out-of-home residential program that provides twenty-four-hour care and supervision to children with the primary purpose of providing treatment or habilitation to children. "Out-of-home treatment or habilitation program" includes, but is not limited to, treatment foster care, group homes, psychiatric hospitals, psychiatric residential treatment facilities and non- medical and community-based residential treatment centers; X. "parent" means a biological or adoptive parent of a child whose parental rights have not been terminated; Y. "physical restraint" means the use of physical force without the use of any device or material that restricts the free movement of all or a portion of a child's body; Z. "protective devices" means helmets, safety goggles or glasses, guards, mitts, gloves, pads and other common safety devices that are normally used or recommended for use by persons without disabilities while engaged in a sport or occupation or during transportation; AA. "residential treatment or habilitation program" means diagnosis, evaluation, care, treatment or habilitation rendered inside or on the premises of a mental health or developmental disabilities facility, hospital, clinic, institution, supervisory residence or nursing home when the child resides on the premises and where one or more of the following measures is available for use: (1) a mechanical device to restrain or restrict the child's movement; (2) a secure seclusion area from which the child is unable to exit voluntarily; (3) a facility or program designed for the purpose of restricting the child's ability to exit voluntarily; and (4) the involuntary emergency administration of psychotropic medication; BB. "restraint" means the use of a physical, chemical or mechanical restraint; CC. "seclusion" means the confinement of a child alone in a room from which the child is physically prevented from leaving; DD. "treatment" means provision of behavioral health services based on evaluation of the child, aimed at assisting the child to prevent, correct or ameliorate a mental disorder. The purpose of treatment is to enable the child to attain, maintain or regain maximum functioning; EE. "treatment team" means a team consisting of the child, the child's parents unless parental rights have specifically been limited pursuant to an order of a court, legal custodian, guardian ad litem, treatment guardian, clinician and any other professionals involved in treatment of the child, other members of the child's family, if requested by the child, and the child's attorney if requested by the child, unless in the professional judgment of the treating clinician for reasons of safety or therapy one or more members should be excluded from participation in the treatment team; and FF."treatment plan" means an individualized plan developed by a treatment team based on assessed strengths and needs of the child and family. History: Laws 2007, ch. 162, § 4; 2008, ch. 75, § 1. ANNOTATIONS The 2008 amendment, effective May 14, 2008, added Subsections S and Z; in Subsection W, provided that the "out-of-home treatment or habilitation program" includes psychiatric hospitals, psychiatric residential treatment facilities and non- medical and community-based residential treatment centers; and in Subsection Y, eliminated the exclusions of holding a child to calm or comfort the child, holding a child’s arm or hand to escort the child to safety, and intervening in a physical fight. 32A-6A-5. Competence. The fact that a child has received treatment or habilitation services or has been accepted at or admitted to a hospital or institutional facility shall not constitute a sufficient basis for a finding of incompetence or the denial of a right or benefit of any nature that the child would otherwise have. History: Laws 2007, ch. 162, § 5. ANNOTATIONS Cross references. — For competence applicable to the Adult Mental Health and Developmental Disabilities Code, see 43-1-5 NMSA 1978. For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to legal representation of children, see the 2006 NMSA 1978 (32A-6-4) on NMOneSource.com. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-6. Rights related to treatment and habilitation; scope. The rights set forth in the Children's Mental Health and Developmental Disabilities Act shall apply to a child who is physically present and receiving treatment or habilitation services in New Mexico. A child who receives treatment or habilitation services shall have rights with respect to such treatment or habilitation, regardless of where services are provided. History: Laws 2007, ch. 162, § 6. ANNOTATIONS Cross references. — For right to treatment applicable to the Adult Mental Health and Developmental Disabilities Code, see 43-1-7 NMSA 1978. For right to habilitation applicable to the Adult Mental Health and Developmental Disabilities Code, see 43-1-8 NMSA 1978. For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to treatment and habilitation, see the 2006 NMSA 1978 (32A-6-8 and 32A-6-9) on NMOneSource.com. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-7. Right to individualized treatment or habilitation services and plan. A. A child receiving mental health or habilitation services shall have the right to prompt treatment and habilitation pursuant to an individualized treatment plan and consistent with the least restrictive means principle. B. A preliminary treatment plan shall be prepared within seven days of initial provision of mental health or habilitation services. C. An individualized treatment or habilitation plan shall be prepared within twenty- one days of the provision of mental health or habilitation services. D. The individualized treatment or habilitation plan shall be developed by the child's treatment team. The child and the child's legal custodian and parent shall, to the maximum extent possible, be involved in the preparation of the child's individualized treatment or habilitation plan. E. An individualized treatment or habilitation plan shall include: (1) a statement of the nature of the specific problem and the specific needs of the child; (2) a statement of the least restrictive conditions necessary to achieve the purposes of treatment or habilitation; (3) a description of intermediate and long-range goals, with the projected timetable for their attainment; (4) a statement and rationale for the plan of treatment or habilitation for achieving these intermediate and long-range goals; (5) specification of staff responsibility and a description of the proposed staff involvement with the child in order to attain these goals; (6) criteria for release to less restrictive settings for treatment or habilitation, criteria for discharge and a projected date for discharge; and (7) provision for access to cultural practices and traditional treatments in accordance with the child's assessed needs, and for an Indian child, culturally competent placement, treatment and practices and, after appropriate consent, tribal consultation. F. A treatment or habilitation plan for a child in an out-of-home treatment or habilitation program shall be based on documented assessments that may include assessments of mental status; intellectual function; psychological status, including the use of psychological testing; psychiatric evaluation and medication; education, vocation, psychosocial assessment, physical status and the child's cultural needs. G. The child's progress in attaining the goals and objectives set forth in the individualized treatment or habilitation plan shall be monitored and noted in the child's records, and revisions in the plan may be made as circumstances require. The members of the child's treatment team shall be informed of major changes and shall have the opportunity to participate in decisions. History: Laws 2007, ch. 162, § 7. ANNOTATIONS Cross references. — For individualized treatment or habilitation plans applicable to the Adult Mental Health and Developmental Disabilities Code, see 43-1-9 NMSA 1978. For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to individualized treatment and habilitation plans, see the 2006 NMSA 1978 (32A-6-10) on NMOneSource.com. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-8. Special rules applicable to aversive intervention. A. An intervention expressly listed in the "aversive intervention" definition in Section 4 [32A-6A-4 NMSA 1978] of the Children's Mental Health and Developmental Disabilities Act is prohibited. B. A treatment plan containing an aversive intervention not specifically listed in Section 4 of the Children's Mental Health and Developmental Disabilities Act shall be submitted to the human rights committee of the department of health in advance of a meeting, except in emergency situations. The human rights committee shall review the plan along with the following additional information as available: (1) baseline or base rate data; (2) review of the child's current situation and environment; (3) the child's history, including previous interventions and results; (4) the possible adverse effects, if any, of the proposed treatment plan; (5) success and failure criteria for discontinuing the proposed aversive intervention; and (6) a written evaluation by the clinician proposing the treatment plan or the intervention. C. The human rights committee of the department of health shall not approve an intervention specifically listed in the definition of "aversive intervention" in Section 4 of the Children's Mental Health and Developmental Disabilities Act. D. An invitation to participate in the review shall be extended to the child, the child's legal custodian, the clinician and any other mental health or developmental disability professional who has proposed the treatment. A written or oral presentation shall be made to the human rights commission by the mental health or developmental disability professional proposing the treatment. E. The results of the human rights committee of the department of health review shall be reported to the clinician, the child and the child's legal custodian within three working days. F. The department shall work in collaboration with the department of health to promulgate rules for implementing a human rights committee pursuant to this section. History: Laws 2007, ch. 162, § 8. ANNOTATIONS Effective dates. — Laws 2007, ch. 162, contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-9. Restraint, generally. A. Nothing in this section shall be interpreted to diminish the rights and protections accorded to children in hospitals or psychiatric residential treatment or habilitation facilities as provided by federal law and regulation. B. Restraint and seclusion as provided for in this section is not considered treatment. It is an emergency intervention to be used only until the emergency ceases. C. Nothing in this section shall prohibit the use of: (1) mechanical supports or protective devices; (2) a medical restraint prescribed by a physician or dentist as a health-related protective measure during the conduct of a specific medical, surgical or dental procedure; and (3) holding a child for a very short period of time without undue force to calm or comfort the child or holding a child's hand to escort the child safely from one area to another. History: Laws 2007, ch. 162, § 9; 2008, ch. 75, § 2. ANNOTATIONS The 2008 amendment, effective May 14, 2008, added Subsections A and B and Paragraphs (1) and (3) of Subsection C. 32A-6A-10. Physical restraint and seclusion. A. When providing any treatment or habilitation, physical restraint and seclusion shall not be used unless an emergency situation arises in which it is necessary to protect a child or another from imminent, serious physical harm or unless another less intrusive, nonphysical intervention has failed or been determined ineffective. B. A treatment and habilitation program shall provide a child and the child's legal custodian with a copy of the policies and procedures governing the use of restraint and seclusion. C. When a child is in a restraint or in seclusion, the mental health or developmental disabilities professional shall document: (1) any less intrusive interventions that were attempted or determined to be inappropriate prior to the incident; (2) the precipitating event immediately preceding the behavior that prompted the use of restraint or seclusion; (3) the behavior that prompted the use of a restraint or seclusion; (4) the names of the mental health or developmental disabilities professional who observed the behavior that prompted the use of restraint or seclusion; (5) the names of the staff members implementing and monitoring the use of restraint or seclusion; and (6) a description of the restraint or seclusion incident, including the type and length of the use of restraint or seclusion, the child's behavior during and reaction to the restraint or seclusion and the name of the supervisor informed of the use of restraint or seclusion. D. The documentation shall be maintained in the child's medical, mental health or educational record and available for inspection by the child's legal custodian. E. The child's legal custodian shall be notified immediately after each time restraint or seclusion is used. If the legal custodian is not reasonably available, the mental health or developmental disability professional shall document all attempts to notify the legal custodian and shall send written notification within one business day. F. After an incident of restraint or seclusion, the mental health or developmental disabilities professional involved in the incident shall conduct a debriefing with the child in which the precipitating event, unsafe behavior and preventive measures are reviewed with the intent of reducing or eliminating the need for future restraint or seclusion. The debriefing shall be documented in the child's record and incorporated into the next treatment plan review. G. As promptly as possible, but under no circumstances later than five calendar days after a child has been subject to restraint or seclusion, the treatment team shall meet to review the incident and revise the treatment plan as appropriate. The treatment team shall identify any known triggers to the behavior that necessitated the use of restraint or seclusion and recommend preventive measures that may be used to calm the child and eliminate the need for restraint or seclusion. In a subsequent review of the treatment plan, the treatment team shall review the success or failure of preventive measures and revise the plan, if necessary, based on such review. H. Physical restraint shall be applied only by a mental health or developmental disabilities professional trained in the appropriate use of physical restraint. I. In applying physical restraint, a mental health or developmental disabilities professional shall use only reasonable force as is necessary to protect the child or other person from imminent and serious physical harm. J. Seclusion shall be applied only by mental health or developmental disabilities professionals who are trained in the appropriate use of seclusion. K. At a minimum, a room used for seclusion shall: (1) be free of objects and fixtures with which a child could self-inflict bodily harm; (2) provide the mental health or developmental disabilities professional an adequate and continuous view of the child from an adjacent area; and (3) provide adequate lighting and ventilation. L. During the seclusion of a child, the mental health or developmental disabilities professional shall: (1) view the child placed in seclusion at all times; and (2) provide the child placed in seclusion with: (a) an explanation of the behavior that resulted in the seclusion; and (b) instructions on the behavior required to return to the environment. M. At a minimum, a mental health or developmental disabilities professional shall reassess a child in restraint or seclusion every thirty minutes. N. The use of a mechanical restraint is prohibited in a mental health and developmental disability treatment setting unless the treatment setting is a hospital that is licensed and certified by and meets the requirements of the joint commission for the accreditation of health care organizations or a facility created pursuant to the Adolescent Treatment Hospital Act [23-9-1 to 23-9-7 NMSA 1978]. O. This section does not prohibit a mental health or developmental disabilities professional from using a mechanical support or protective device: (1) as prescribed by a health professional; or (2) for a child with a disability, in accordance with a written treatment plan, including but not limited to a school individualized education plan or behavior intervention plan. History: Laws 2007, ch. 162, § 10; 2008, ch. 75, § 3. ANNOTATIONS The 2008 amendment, effective May 14, 2008, in Subsection A, eliminated the qualification that Subsection A applies to mental health or developmental disability settings and added authority to use restraint and seclusion in an emergency situation; and in Subsection N, permitted mechanical restraint in a hospital that is licensed or in a facility created pursuant to the Adolescent Treatment Hospital Act. 32A-6A-11. Training required for a professional who uses restraint or seclusion. A mental health or developmental disabilities professional who administers restraint or seclusion shall receive training in current professionally accepted practices and standards regarding: A. positive behavior interventions strategies and supports; B. functional behavior assessment and behavior intervention planning; C. prevention of self-injurious behaviors; D. methods for identifying and defusing potentially dangerous behavior; and E. restraint and seclusion, to the extent that each may be used in the treatment setting. History: Laws 2007, ch. 162, § 11. ANNOTATIONS Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-12. Personal rights of a child in an out-of-home treatment or habilitation program; scope. A. A child in an out-of-home treatment or habilitation program shall have, in addition to other rights set forth in the Children's Mental Health and Developmental Disabilities Act, the right to: (1) be placed in a manner consistent with the least restrictive means principle; (2) have access to the state's designated protection and advocacy system and access to an attorney of the child's choice, provided that the child is not entitled to appointment of an attorney at public expense, except as otherwise provided in Subsection C of Section 32A-6A-13 NMSA 1978; (3) receive visitors of the child's own choosing on a daily basis, subject to restrictions imposed in the best interests of the child by the child's clinician for good cause. Hours during which visitors may be received shall be limited only in the interest of effective treatment and the reasonable efficiency of the program and shall be sufficiently flexible to accommodate the individual needs of the child and the child's visitors. Notwithstanding the provisions of this subsection, each child has the right to receive visits from the child's attorney; physician; physician assistant, advanced practice registered nurse or certified nurse-midwife working within that person's scope of practice; psychologist; clergy; guardian ad litem; or representatives from the state's protection and advocacy system or children, youth and families department in private at any reasonable time, irrespective of visiting hours, provided the visitor shows reasonable cause for visiting at times other than normal visiting hours; (4) have writing materials and postage stamps reasonably available for the child's use in writing letters and other communications. Reasonable assistance shall be provided for writing, addressing and posting letters and other documents upon request. The child has the right to send and receive sealed and uncensored mail. The child has the right to reasonable private access to telephones, and, in cases of personal emergencies when other means of communication are not satisfactory, the child shall be afforded reasonable use of long distance calls; provided that for other than mail or telephone calls to a court; an attorney; a physician; a physician assistant, advanced practice registered nurse or certified nurse-midwife working within that person's scope of practice; a psychologist; clergy; a guardian ad litem; a representative from the state's protection and advocacy system; or a social worker, mailing or telephone privileges may be restricted by the child's clinician for good cause shown. A child who is indigent shall be furnished writing, postage and telephone facilities without charge; (5) reasonable access to a legal custodian and a family member through visitation, videoconferencing, telephone access and opportunity to send and receive mail. In-person visitation is preferred, and reasonable efforts shall be made to facilitate such visitation unless the child and family choose otherwise. Access by legal custodians and family members to the child shall be limited only in the interest of effective treatment and the reasonable efficiency of the program and shall be sufficiently flexible to accommodate the individual needs of legal custodians and family members. Treatment needs that justify limitation on the access rights of a legal custodian or family member must be specifically documented by the clinician in the child's record, and any such limitation automatically expires in seven days; (6) follow or abstain from the practice of religion. The program shall provide appropriate assistance in this connection, including reasonable accommodations for religious worship and transportation to nearby religious services. A child who does not wish to participate in religious practice shall be free from pressure to do so or to accept religious beliefs; (7) a humane psychological and physical environment. The child shall be provided a comfortable bed and adequate changes of linen and reasonable secure storage space for personal possessions. Except when curtailed for reasons of safety or therapy as documented in the child's record by the child's physician, the child shall be afforded reasonable privacy in sleeping and personal hygiene practices; (8) reasonable daily opportunities for physical exercise and outdoor exercise and reasonable access to recreational areas and equipment, including equipment adapted to the child's developmental and physical needs; (9) a nourishing, well-balanced, varied and appetizing diet; (10) prompt and adequate medical attention for a physical ailment. Each child shall receive a complete physical examination upon admission, except when documentation is provided that the child has had such examination within the six months immediately prior to the current admission. Each child shall receive a complete physical examination every twelve months thereafter; (11) a clean, safe and comfortable environment in a structure that complies with applicable fire and safety requirements; (12) appropriate medication and freedom from unnecessary or excessive medication. Medication shall not be used as discipline, as a substitute for programs, for the convenience of staff or in quantities that interfere with the child's treatment or habilitation program. No medication shall be administered unless by written order of a clinician licensed to prescribe medication or by an oral order noted immediately in the patient's medical record and signed by that clinician within twenty-four hours. All prescriptions for psychotropic medications must be reviewed at least every thirty days. Notation of each child's medication shall be kept in the child's medical records and shall include a notation by the clinician licensed to prescribe medication of the behavioral or symptomatic baseline data upon which the medication order was made; and (13) a free public education. The child shall be educated in regular classes with nondisabled children whenever appropriate. In no event shall a child be allowed to remain in an out-of-home treatment or habilitation program for more than ten days without receiving educational services. If the child's placement in an out-of-home treatment or habilitation program is required by an individualized education plan that conforms to the requirements of state and federal law, the sending school is responsible for the provision of education to the child. In all other situations, the local school district in which the out-of-home treatment or habilitation program is located is responsible for the provision of educational services to the child. Nothing in this subsection shall limit a child's right to public education under state, tribal or federal law. B. A child receiving services in an out-of-home treatment or habilitation program, including but not limited to residential treatment or habilitation programs, shall be provided notice of rights immediately upon admission to such program. History: Laws 2007, ch. 162, § 12; 2015, ch. 116, § 12. ANNOTATIONS Cross references. — For personal rights of residential clients applicable to the Adult Mental Health and Developmental Disabilities Code, see 43-1-6 NMSA 1978. For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to personal rights of children, see the 2006 NMSA 1978 (32A-6-6) on NMOneSource.com. The 2015 amendment, effective June 19, 2015, amended the Children’s Mental Health and Developmental Disabilities Act provision, relating to children’s rights, by including other health care professionals with each reference to "physician"; in Paragraph (2) of Subsection A, after "Section", deleted "13 of the Children’s Mental Health and Developmental Disabilities Act" and added "32A-6A-13 NMSA 1978"; in Paragraph (3) of Subsection A, after "child’s attorney; physician", added "physician assistant, advanced practice registered nurse or certified nurse-midwife working within that person’s scope of practice"; and in Paragraph (4) of Subsection A, after "attorney; a physician", added "a physician assistant, advanced practice registered nurse or certified nurse-midwife working within that person’s scope of practice", and after "psychologist", deleted "a". Temporary provisions. — Laws 2015, ch. 116, § 16 provided that by January 1, 2016, every cabinet secretary, agency head and head of a political subdivision of the state shall update rules requiring an examination by, a certificate from or a statement of a licensed physician to also accept such examination, certificate or statement from an advanced practice registered nurse, certified nurse-midwife or physician assistant working within that person's scope of practice. 32A-6A-13. Legal representation of children. A. A child shall be represented by an attorney at all commitment or treatment guardianship proceedings under the Children's Mental Health and Developmental Disabilities Act if the child is fourteen years of age or older or by a guardian ad litem if the child is under fourteen years of age. B. When a child has not retained an attorney or a guardian ad litem in a commitment or treatment guardian proceeding and is unable to do so, the court shall appoint an attorney or a guardian ad litem to represent the child in the proceeding. Only an attorney with appropriate experience shall be appointed as an attorney or a guardian ad litem for the child. Whenever reasonable and appropriate, the court shall appoint a guardian ad litem or attorney who is knowledgeable about the child's cultural background. C. A child of any age shall have access to the state's designated protection and advocacy system pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Individuals with Mental Illness Act and access to an attorney of the child's choice regarding any matter related to the Children's Mental Health and Developmental Disabilities Act. D. The child is not entitled to appointment of an attorney at public expense, except as set forth in Subsections A and B of this section. E. A child shall not be represented or counseled by an attorney or guardian ad litem who has a conflict of interest, including but not limited to any conflict of interest resulting from prior representation of the child's parent, guardian, legal custodian or residential treatment or habilitation program. History: Laws 2007, ch. 162, § 13; 2008, ch. 75, § 4. ANNOTATIONS Cross references. — For legal representation of clients applicable to the Mental Health and Developmental Disabilities Code, see 43-1-4 NMSA 1978. For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to legal representation of children, see the 2006 NMSA 1978 (32A-6-4) on NMOneSource.com. The 2008 amendment, effective May 14, 2008, in Subsection C, provided that a child shall have access to the state’s protection and advocacy system pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Individuals with Mental Illness Act regarding any matter related to the Children’s Mental Health and Developmental Disabilities Act. Pro bono representation. — In entertaining petition for pro bono appointment of attorney to represent a child, the district court was exercising jurisdiction conferred on district courts by the Children's Mental Health and Developmental Disabilities Act. In re Kleinsmith, 2005-NMCA-136, 138 N.M. 681, 124 P.3d 579, cert. denied, 546 U.S. 1034, 126 S. Ct. 758, 163 L. Ed. 2d 574. Face-to-face representation. — Although a face-to-face meeting is preferred, an appointed attorney could have interviewed the child by telephone to carry out his responsibilities. In re Kleinsmith, 2005-NMCA-136, 138 N.M. 601, 124 P.3d 579, cert. denied, 546 U.S. 1034, 126 S. Ct. 758, 163 L. Ed. 2d 574. 32A-6A-14. Consent for services; children under fourteen years of age. A. Except as provided in Subsection B of this section, the informed consent of a child's legal custodian shall be required before treatment or habilitation, including psychotherapy or psychotropic medications, is administered to a child under fourteen years of age. B. A child under fourteen years of age may initiate and consent to an initial assessment with a clinician and for medically necessary early intervention service limited to verbal therapy as set forth in this section. The purpose of the initial assessment is to allow a clinician to interview the child and determine what, if any, action needs to be taken to ensure appropriate mental health or habilitation services are provided to the child. The clinician may conduct an initial assessment and provide medically necessary early intervention service limited to verbal therapy with or without the consent of the legal custodian if such service will not extend beyond two calendar weeks. If, at any time, the clinician has a reasonable suspicion that the child is an abused or neglected child, the clinician shall immediately make a child abuse and neglect report. History: Laws 2007, ch. 162, § 14. ANNOTATIONS Cross references. — For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to right to education, see the 2006 NMSA 1978 (32A-6-7) on NMOneSource.com. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. Educational services. — Public schools have no constitutional or statutory obligation to provide educational services to students within private, for-profit adolescent psychiatric care and substance abuse treatment centers, but if the student is handicapped, federal law may require such education. 1988 Op. Att'y Gen. No. 88-10. Law reviews. — For article, "Treating Children Under the New Mexico Mental Health and Developmental Disabilities Code," see 10 N.M.L. Rev. 279 (1980). 32A-6A-15. Consent for services; children fourteen years of age or older. A. A child fourteen years of age or older is presumed to have capacity to consent to treatment without consent of the child's legal custodian, including consent for individual psychotherapy, group psychotherapy, guidance counseling, case management, behavioral therapy, family therapy, counseling, substance abuse treatment or other forms of verbal treatment that do not include aversive interventions. Nothing in this section shall be interpreted to provide a child fourteen years of age or older with independent consent rights for the purposes of the provision of special education and related services as set forth in federal law. B. Psychotropic medications may be administered to a child fourteen years of age or older with the informed consent of the child. When psychotropic medications are administered to a child fourteen years of age or older, the child's legal custodian shall be notified by the clinician. C. A clinician or other mental health and developmental disabilities professional shall promote the healthy involvement of a child's legal custodians and family members in developing and implementing the child's treatment plan, including appropriate participation in treatment for children fourteen years of age or older. However, nothing in this section shall limit the rights of a child fourteen years of age or older to consent to services and to consent to disclosure of mental health records. History: Laws 2007, ch. 162, § 15. ANNOTATIONS Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-16. Consent for services; determination of capacity for children fourteen years of age or older. A. When a child fourteen years of age or older has been determined according to the provisions of this section to lack capacity, the child's legal custodian may make a mental health or habilitation decision for the child unless the child objects to such decision or the legal custodian's assumption of authority to make mental health or developmental disability treatment decisions or determination of lack of capacity. Nothing in this subsection: (1) permits a legal custodian to consent to placement of a child in a residential treatment or habilitation program without the proper consent of the child if the child is fourteen years of age or older; or (2) in any way, limits a child's right to involuntary commitment procedures as set forth in the Children's Mental Health and Developmental Disabilities Act. B. The determination that a child fourteen years of age or older lacks or has recovered capacity shall be made by two clinicians, one of whom shall be a person who works with children in the ordinary course of that clinician's practice. C. A child fourteen years of age or older shall not be determined to lack capacity solely on the basis that the child chooses not to accept the treatment recommended by the mental health or developmental disabilities professional. D. A child fourteen years of age or older may at any time contest a determination that the child lacks capacity by a signed writing or by personally informing a clinician that the determination is contested. A clinician who is informed by a child that such determination is contested shall promptly communicate that the determination is contested to any supervising provider or institution at which the child is receiving care. Such a challenge shall prevail unless otherwise ordered by the court in a proceeding brought pursuant to the treatment guardianship provisions of the Children's Mental Health and Developmental Disabilities Act. E. A determination of lack of capacity under the Children's Mental Health and Developmental Disabilities Act shall not be evidence of incapacity for any other purpose. F. The legal custodian shall communicate an assumption of authority as promptly as practicable to the child fourteen years of age or older and to the clinician and to the supervising mental health or developmental disability treatment and habilitation provider. G. If more than one legal custodian assumes authority to act as an agent, the consent of both shall be required for nonemergency treatment. In an emergency, the consent of one legal custodian is sufficient, but the treating mental health professional shall provide the other legal custodian with oral notice followed by written documentation. H. If more than one legal custodian assumes authority to act as an agent and the legal custodians do not agree on a nonemergency mental health treatment decision and the clinician is so informed, the clinician shall not treat the child unless a treatment guardian is appointed pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. I. A legal custodian shall make treatment decisions in accordance with a child's individual instructions, if any, and other wishes to the extent known to the legal custodian. Otherwise, the legal custodian shall make decisions in accordance with the legal custodian's determination of the child's best interests. In determining the child's best interests, the legal custodian shall consider the child's personal values to the extent known to the legal custodian. J. A mental health treatment decision made by a legal custodian for a child fourteen years of age or older who has been determined to lack capacity shall not be made solely on the basis of the child's pre-existing physical or medical condition or pre- existing or projected disability. K. A mental health treatment decision made by a legal custodian for a child fourteen years of age or older who has been determined to lack capacity is effective without judicial approval unless contested by the child. L. If no legal custodian or agent is reasonably available to make mental health or habilitation decisions for the child, any interested party may petition for the appointment of a treatment guardian. History: Laws 2007, ch. 162, § 16. ANNOTATIONS Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-17. Treatment guardianship proceedings. A. If no legal custodian is reasonably available to make mental health decisions for a child fourteen years of age or older who has been determined to lack capacity or if a clinician who proposes a course of treatment objects to a challenge made by the child to a determination of incapacity, the clinician shall request that the children's court attorney petition the court for appointment of a treatment guardian to make a substitute decision for the child. B. In a treatment guardian proceeding, the court shall appoint an attorney for the child unless the child already has an attorney available. C. A petition shall be served on the child and the child's attorney. A hearing on the petition shall be held within three business days. At the hearing, the child shall be represented by counsel and shall have the right to be present, to present witnesses and to cross-examine opposing witnesses. D. If, after the hearing, the court finds that the child is not capable of making treatment decisions and treatment is needed, the court shall order the appointment of a treatment guardian. When appointing a treatment guardian, the court shall appoint the child's legal custodian unless the legal custodian is not readily available or the court finds that such an appointment is not in the child's best interests. E. The treatment guardian shall make a decision on behalf of the child based on the treatment guardian's best judgment of whether the treatment appears to be in the child's best interests and is consistent with the least restrictive means principle for accomplishing the treatment objective. In making this decision, the treatment guardian shall consult with the child and consider the child's expressed opinions. The treatment guardian shall give consideration to previous decisions made by the child in similar circumstances when the child was able to make treatment decisions and shall make the decision in accordance with the values of the child if known, or in the best interests of the child if the values are not known; provided that, if the child has given an individual instruction that is available to the treatment guardian, the instruction shall be followed. F. If a child who is not a resident of a residential treatment and habilitation program has a treatment guardian and refuses to comply with the decision of the treatment guardian, the treatment guardian may obtain an enforcement order. The enforcement order may authorize a peace officer to take the child into custody or to transport the child to an evaluation facility and may authorize the facility to forcibly administer treatment. The treatment guardian shall consult with the clinician who is proposing treatment, the child's attorney or guardian ad litem and, as deemed appropriate, interested friends or relatives of the child. The evaluation facility shall comply with the treatment guardian's decision unless the clinician finds it to be against the best interests of the child. G. A child, physician or other professional wishing to contest the decision of the treatment guardian may do so by filing a petition with the court within three calendar days or the next business day, whichever is later, of receiving notice of the treatment guardian's decision. The child shall be represented by counsel in all proceedings before the court. The court may overrule the treatment guardian's decision if it finds that decision to be against the best interests of the child. The court shall rule within seven days of the filing of the petition. H. If both a petition for an enforcement order and a petition to contest the treatment guardian's decision are filed, they shall be heard in the same proceeding at the same time. I. When the court appoints a treatment guardian, it shall specify the length of time during which the treatment guardian may exercise treatment guardian powers, up to a maximum period of one year. If, at the end of the guardianship period, the treatment guardian believes that the child still lacks capacity, the treatment guardian shall petition the court for reappointment or for appointment of a new treatment guardian. The guardianship shall be extended or a new guardian shall be appointed only if the court finds the child does not have capacity to make treatment or habilitation decisions at the time of the hearing. The court shall appoint an attorney for the child, and the child shall have the right to be present and to present evidence at all such hearings. J. If, during the period of a treatment guardian's power, the treatment guardian, the child, the treatment provider or a member of the child's family believes that the child has regained capacity, that person may petition the court for a termination of the treatment guardianship. If the court finds the child has regained capacity, it shall terminate the power of the treatment guardian and restore to the child the power to make treatment decisions. K. A treatment guardian shall have only those powers enumerated in the Children's Mental Health and Developmental Disabilities Act. L. If a clinician licensed to prescribe medication believes that the administration of psychotropic medication is necessary to protect the child from serious harm that could occur while the provisions of this section are being satisfied, the licensed clinician may order or administer the medication on an emergency basis. When medication is administered to a child on an emergency basis, the clinician shall prepare and place in the child's medical records a report explaining the nature of the emergency and the reason that no treatment less restrictive than administration of psychotropic medication without proper consent would have protected the child from serious harm. When medication is administered to a child on an emergency basis, the child's legal custodian and the child's attorney or guardian ad litem shall be notified by the residential treatment or habilitation program. If the child is not in a residential setting, the clinician shall petition for a pickup order pursuant to Section 19 [32A-6A-19 NMSA 1978] of the Children's Mental Health and Developmental Disabilities Act and have the child transported to a residential facility where the medication will be administered. History: Laws 2007, ch. 162, § 17. ANNOTATIONS Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-18. Individual instructions. A. A child fourteen years of age or older who has capacity also has the right to direct the child's own treatment in the event of later incapacity. To do so, the child may give an individual instruction regarding the child's own treatment or habilitation. The individual instruction may be limited to take effect only if a specified condition arises. B. An individual instruction shall be effective without judicial approval and shall be written and signed by the child and the child's legal custodian and signed by a witness who is at least eighteen years of age and who attests that the child and the child's legal custodian are known to the witness, that they signed the individual instruction for mental health treatment in the witness' presence and that they appear to have capacity and are not acting under duress, fraud or undue influence. C. A witness to an individual instruction shall not be related to the child or the child's legal custodian by blood or marriage, the child's attending qualified health care professional or an owner, operator or employee of a mental health facility at which the child is receiving care or of any parent organization, subsidiary or contractor of the mental health facility. D. If the child's legal custodian refuses to consent to the individual instruction, the child may petition the court for determination of whether the individual instruction is in the child's best interest. E. A child's legal custodian or treatment guardian shall make treatment decisions in accordance with the child's individual instruction unless the treatment requested is infeasible or unavailable or would not offer the child any significant benefit as determined by the child's clinician. F. The individual instruction shall be implemented by the child's legal custodian under this section only upon certification that the child lacks capacity. The instruction shall cease to be effective upon a determination that the child has recovered capacity. G. Written certification that a child lacks or has recovered capacity or that another condition exists that affects an individual instruction shall be made according to the provisions of the Children's Mental Health and Developmental Disabilities Act. A child while having capacity may revoke all or part of an individual instruction for mental health treatment at any time and in any manner that communicates an intent to revoke. H. The fact that a child has executed a written individual instruction for treatment shall not constitute an indication of mental illness. I. A clinician who knows the existence of an individual instruction for mental health treatment, a revocation or a challenge to a determination or certification of lack of capacity shall obtain a copy and shall place it in the child's health care record. J. A clinician shall disclose an individual instruction for mental health treatment to other clinicians only when it is determined that the disclosure is necessary to provide treatment in accordance with an individual instruction. History: Laws 2007, ch. 162, § 18. ANNOTATIONS Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-19. Emergency mental health evaluation and care. A. A peace officer may detain and transport a child for emergency mental health evaluation and care in the absence of a legally valid order from the court only if the peace officer: (1) has reasonable grounds to believe the child has just attempted suicide; (2) based upon personal observation and investigation, has reasonable grounds to believe that the child, as a result of a mental disorder, presents a likelihood of serious harm to self or others and that immediate detention is necessary to prevent such harm. The peace officer shall convey the peace officer's beliefs to the admitting physician or licensed psychologist immediately upon the officer's arrival at the evaluation facility; (3) has certification from a clinician that the child, as a result of a mental disorder, presents a likelihood of serious harm to self or others and that immediate intervention is necessary to prevent the harm; or (4) has an involuntary placement order issued by a tribal court that orders the child to be admitted to an evaluation facility. B. A peace officer shall immediately transport a child detained under this section to an evaluation facility. In the case of an extreme emergency, the child may be held for a period of up to twenty-four hours in temporary emergency placement in: (1) a foster home licensed to provide specialized or therapeutic care; (2) a facility operated by a licensed child services agency that meets standards promulgated by the department for the care of children who present the likelihood of serious harm to themselves or others; and (3) residential care on an emergency basis. C. A child shall not be held for the purposes of emergency mental health evaluation or care in a jail or other facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged or adjudicated to be delinquent children. D. The director of an evaluation facility shall accomplish an emergency evaluation upon the request of a child's legal custodian, a peace officer, a detention facility administrator or the administrator's designee or upon the certification of a clinician. A court order is not required under this section. If an application is made to a court, the court's power to act in furtherance of an emergency admission shall be limited to ordering that: (1) the child be seen by a clinician prior to transport to an evaluation facility; and (2) a peace officer transport the child to an evaluation facility. E. The admitting physician or licensed psychologist shall evaluate whether reasonable grounds exist to detain the child for evaluation and treatment, and, if reasonable grounds are found, the child shall be detained. If the admitting physician or licensed psychologist determines that reasonable grounds do not exist to detain the child for evaluation and treatment, the child shall not be detained but shall be released to the custody of the child's legal custodian. F. Upon arrival at an evaluation facility, the child shall be informed orally and in writing by the evaluation facility of the purpose and possible consequences of the proceedings, the allegations in the petition, the child's right to a hearing within seven days, the child's right to counsel and the child's right to communicate with an attorney or a guardian ad litem and an independent mental health professional of the child's own choosing. A child shall have the right to receive necessary and appropriate treatment. G. A peace officer who transports a child to an evaluation facility pursuant to the provisions of this section shall not require a court order to be reimbursed by the referring county. H. If a child is transported to or detained at an evaluation facility and is not released to the child's legal custodian, the peace officer transporting the child shall give written notice thereof as soon as possible within twenty-four hours to the child's legal custodian, together with a statement of the reason for taking the child into custody. History: Laws 2007, ch. 162, § 19. ANNOTATIONS Cross references. — For emergency mental health evaluation and care applicable to the Adult Mental Health and Developmental Disabilities Code, see 43-1-10 NMSA 1978. For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to emergency mental health evaluation and care, see, the 2006 NMSA 1978 (32A-6-11) on NMOneSource.com. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-20. Consent to placement in a residential treatment or habilitation program; children younger than fourteen years of age. A. A child younger than fourteen years of age shall not receive residential treatment for a mental disorder or habilitation for a developmental disability, except as provided in this section. B. A child younger than fourteen years of age may be admitted to a residential treatment or habilitation program for a period not to exceed sixty days with the informed consent of the child's legal custodian, subject to the requirements of this section. C. In order to admit a child younger than fourteen years of age to a residential treatment or habilitation program, the child's legal custodian shall knowingly and voluntarily execute a consent to admission document prior to the child's admission. The consent to admission document shall be in a form designated by the supreme court. The consent to admission document shall include a clear statement of the legal custodian's right to consent voluntarily to or refuse the child's admission, the legal custodian's right to request the child's immediate discharge from the residential treatment program at any time and the legal custodian's rights when the legal custodian requests the child's discharge and the child's physician, licensed psychologist or the director of the residential treatment or habilitation program determines that the child needs continued treatment. The residential treatment or habilitation program shall ensure that each statement is clearly explained in the child's and legal custodian's primary language, if that is their language of preference, and in a manner appropriate to the child's and legal custodian's developmental abilities. Each statement shall be initialed by the child's legal custodian. D. The legal custodian's executed consent to admission document shall be filed with the child's treatment records within twenty-four hours of the time of admission. E. Upon the filing of the legal custodian's consent to admission document in the child's hospital records, the director of the residential treatment or habilitation program or the director's designee shall, on the next business day following the child's admission, notify the district court or the special commissioner appointed pursuant to Section 32A-6A-25 NMSA 1978 regarding the admission and provide the child's name, date of birth and the date and place of admission. The court or special commissioner shall, upon receipt of notice regarding a child's admission to a residential treatment or habilitation program, establish a sequestered court file. F. The director of a residential treatment or habilitation program or the director's designee shall, on the next business day following the child's admission, petition the court to appoint a guardian ad litem for the child. When the court receives the petition, the court shall appoint a guardian ad litem. G. Within seven days of a child's admission to a residential treatment or habilitation program, a guardian ad litem, representing the child's best interests and in accordance with the provisions of the Children's Mental Health and Developmental Disabilities Act [32A-6A-1 to 32A-6A-30 NMSA 1978], shall meet with the child, the child's legal custodian and the child's clinician. The guardian ad litem shall determine the following: (1) whether the child's legal custodian understands and consents to the child's admission to a residential treatment or habilitation program; (2) whether the admission is in the child's best interests; and (3) whether the admission is appropriate for the child and is consistent with the least restrictive means principle. H. If a guardian ad litem determines that the child's legal custodian understands and consents to the child's admission and that the admission is in the child's best interests, is appropriate for the child and is consistent with the least restrictive means principle, the guardian ad litem shall so certify on a form designated by the supreme court. The form, when completed by the guardian ad litem, shall be filed in the child's patient record kept by the residential treatment or habilitation program, and a copy shall be forwarded to the court or special commissioner within seven days of the child's admission. The guardian ad litem's statement shall not identify the child by name. I. Upon reaching the age of fourteen, a child who was admitted to a residential treatment or habilitation program pursuant to this section may petition the district court for the records of the district court regarding all matters pertinent to the child's admission to a residential treatment or habilitation program. The district court, upon receipt of the petition and upon a determination that the petitioner is in fact a child who was admitted to a residential treatment or habilitation program, shall provide all court records regarding the admission to the petitioner, including all copies in the court's possession, unless there is a showing that release of records would cause substantial harm to the child. Upon reaching the age of eighteen, a person who was admitted to a residential or treatment or habilitation program as a child may petition the district court for such records, and the district court shall provide all court records regarding the admission to the petitioner, including all copies in the court's possession. J. A legal custodian who consents to admission of a child to a residential treatment or habilitation program has the right to request the child's immediate discharge from the residential treatment or habilitation program, subject to the provisions of this section. If a child's legal custodian informs the director, a physician or other member of the residential treatment or habilitation program staff that the legal custodian desires the child to be discharged from the program, the director, physician or other staff shall provide for the child's immediate discharge and remit the child to the legal custodian's care. The residential treatment or habilitation program shall also notify the child's guardian ad litem. A child whose legal custodian requests the child's immediate discharge shall be discharged, except when the director of the residential treatment or habilitation program, a physician or a licensed psychologist determines that the child requires continued treatment and that the child meets the criteria for involuntary residential treatment. In that event, the director, physician or licensed psychologist shall, on the first business day following the child's legal custodian's request for release of the child from the program, request that the children's court attorney initiate involuntary residential treatment proceedings. The children's court attorney may petition the court for such proceedings. The child has a right to a hearing regarding the child's continued treatment within seven days of the request for release. K. A residential treatment or habilitation program shall review the admission of a child at the end of a sixty-day period after the date of initial admission, and the child's physician or licensed psychologist shall review the admission to determine whether it is in the best interests of the child to continue the admission. If the child's physician or licensed psychologist concludes that continuation of the residential treatment or habilitation program is in the child's best interests, the child's clinician shall so state in a form to be filed in the child's patient records. The residential treatment or habilitation program shall notify the guardian ad litem for the child at least seven days prior to the date that the sixty-day period is to end or, if necessary, request a guardian ad litem pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. The guardian ad litem shall then personally meet with the child, the child's legal custodian and the child's clinician and ensure that the child's legal custodian understands and consents to the child's continued admission to the residential treatment or habilitation program. If the guardian ad litem determines that the child's legal custodian understands and consents to the child's continued admission to the residential treatment or habilitation program, that the continued admission is in the child's best interest, that the placement continues to be appropriate for the child and consistent with the least restrictive means principle and that the clinician has recommended the child's continued stay in the program, the guardian ad litem shall so certify on a form designated by the supreme court. The disposition of these forms shall be as set forth in this section, with one copy going in the child's patient record and the other being sent to the district court in a manner that preserves the child's anonymity. This procedure shall take place every sixty days following the child's last admission or a guardian ad litem's certification, whichever occurs first. L. When a guardian ad litem determines that the child's legal custodian does not understand or consent to the child's admission to a residential treatment or habilitation program, that the admission is not in the child's best interests, that the placement is inappropriate for the child or is inconsistent with the least restrictive means principle or that the child's clinician has not recommended a continued stay by the child in the residential treatment or habilitation program, the child shall be released or involuntary placement procedures shall be initiated. M. If the child's legal custodian is unavailable to take custody of the child and immediate discharge of the child would endanger the child, the residential treatment or habilitation program may detain the child until a safe and orderly discharge is possible. If the child's legal custodian refuses to take physical custody of the child, the residential treatment or habilitation program shall refer the case to the department for an abuse and neglect or family in need of court-ordered services investigation. The department may take the child into protective custody pursuant to the provisions of the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] or the Family in Need of Court- Ordered Services Act [Chapter 32A, Article 3B NMSA 1978]. History: Laws 2007, ch. 162, § 20; 2008, ch. 75, § 5. ANNOTATIONS Compiler's note. — The Family in Need of Court-Ordered Services Act cited in Subsection M, was repealed by Laws 2005, ch. 189, § 77. For current law, see the Family in Need of Services Act, 32A-3A-1 NMSA 1978. The 2008 amendment, effective May 14, 2008, changed "drastic" to "restrictive" in Paragraph (3) of Subsections G and H. 32A-6A-21. Voluntary residential treatment or habilitation for children fourteen years of age or older. A. A child fourteen years of age or older shall not receive treatment for mental disorders or habilitation for developmental disabilities on a voluntary residential basis, except as provided in this section. B. An admission of a child fourteen years of age or older to a residential treatment or habilitation program is voluntary when it is medically necessary and consented to by the child and the child's legal custodian as set forth in this section, provided that the admission does not exceed sixty days, subject to the requirements of this section. C. To have a child voluntarily admitted to a residential treatment or habilitation program, the child and the child's legal custodian shall knowingly and voluntarily execute, prior to admission, a child's voluntary consent to admission document. The document shall include a clear statement of the child's right to voluntarily consent or to request an immediate discharge from the residential treatment or habilitation program at any time; and the child's rights when the child requests a discharge and the child's physician, licensed psychologist or the director of the residential treatment or habilitation program determines the child needs continued treatment. The residential treatment or habilitation program shall ensure that each statement is clearly explained in the child's and legal custodian's primary language, if that is their language of preference, and in a manner appropriate to the child's and legal custodian's developmental abilities, and each statement shall be initialed by the child and the child's legal custodian. D. A child who is admitted on a voluntary basis has a right to an attorney. Prior to admission, the residential treatment or habilitation program shall inform the child's legal custodian of the child's right to an independent attorney within seventy-two hours. If the child's legal custodian is unable to obtain an independent attorney, the legal custodian may petition the court to appoint an attorney for the child. If the child's legal custodian obtains an independent attorney for the child, the legal custodian shall notify the residential treatment or habilitation program of that attorney's name within seventy-two hours of the child's voluntary admission. E. The child's executed voluntary consent to admission document shall be filed in the child's treatment record within twenty-four hours of the time of admission. F. Upon the filing of the child's voluntary consent to admission document in the child's treatment record, the director of the residential treatment or habilitation program or the director's designee shall, on the next business day following the child's admission, notify the district court or the special commissioner of the admission, giving the child's name, date of birth and the date and place of admission. Upon receipt of notice of a child's voluntary admission to a residential treatment or habilitation program, the court or special commissioner shall establish a sequestered court file. G. If within seventy-two hours of the child's voluntary admission the child has not met with an independent attorney and the child's legal custodian has not notified the residential treatment or habilitation program of the name of the child's independent attorney, the residential treatment or habilitation program shall during the next business day petition the court to appoint an attorney. When the court receives the petition, the court shall appoint an attorney. H. If within seventy-two hours of the child's voluntary admission the child has met with an independent attorney or the child's legal custodian has notified the residential treatment or habilitation program of the name of the child's independent attorney, the residential treatment or habilitation program shall during the next business day notify the court or the special commissioner of the name of the child's independent attorney. I. Within seven days of the admission, an attorney representing the child pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act shall meet with the child. At the meeting with the child, the attorney shall explain to the child the following: (1) the child's right to an attorney; (2) the child's right to terminate the child's voluntary admission and the procedures to effect termination; (3) the effect of terminating the child's voluntary admission and options of the clinician and other interested parties to petition for an involuntary admission; and (4) the child's rights under the provisions of the Children's Mental Health and Developmental Disabilities Act, including the right to: (a) legal representation; (b) a presumption of competence; (c) receive daily visitors of the child's choice; (d) receive and send uncensored mail; (e) have access to telephones; (f) follow or abstain from the practice of religion; (g) a humane and safe environment; (h) physical exercise and outdoor exercise; (i) a nourishing, well-balanced, varied and appetizing diet; (j) medical treatment; (k) educational services; (l) freedom from unnecessary or excessive medication; (m)individualized treatment and habilitation; and (n) participation in the development of the individualized treatment plan and access to that plan on request. J. If the attorney determines that the child understands the child's rights and that the child voluntarily and knowingly desires to remain as a patient in a residential treatment or habilitation program, the attorney shall so certify on a form designated by the supreme court. The form, when completed by the attorney, shall be filed in the child's patient record at the residential treatment or habilitation program, and a copy shall be forwarded to the court or special commissioner within seven days of the child's admission. The attorney's statement shall not identify the child by name. K. Upon reaching the age of fourteen, a child who was a voluntary admittee to a residential treatment or habilitation program may petition the district court for the records of the court regarding all matters pertinent to the child's voluntary admission to a residential treatment or habilitation program. The court, upon receipt of the petition and upon a determination that the petitioner was in fact the child who was a voluntary admittee to a residential treatment or habilitation program, shall give all court records regarding the admission to the petitioner, including all copies in the court's possession unless there is a showing that provision of records would cause substantial harm to the child. A person who was admitted to a residential or treatment or habilitation program as a child, upon reaching the age of eighteen, may petition the district court for such records and the district court shall provide all court records regarding the admission to the petitioner, including all copies in the court's possession. L. Any child voluntarily admitted to a residential treatment or habilitation program has the right to an immediate discharge from the residential treatment or habilitation program upon the child's request, except as provided in this section. If a child informs the director, clinician or other member of the residential treatment or habilitation program staff that the child desires to be discharged from the voluntary program, the director, clinician or other staff member shall provide for the child's immediate discharge. The residential treatment or habilitation program shall not require that the child's request be in writing. Upon the request, the residential treatment or habilitation program shall notify the child's legal custodian to take custody of the child and remit the child to the legal custodian's care. The residential treatment or habilitation program shall also notify the child's attorney. If the child's legal custodian is unavailable to take custody of the child and immediate discharge of the child would endanger the child, the residential treatment or habilitation program may detain the child until a safe and orderly discharge is possible. If the child's legal custodian refuses to take physical custody of the child, the residential treatment or habilitation program shall refer the case to the department for an abuse and neglect or family in need of court-ordered services investigation. The department may take the child into protective custody pursuant to the provisions of the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] or the Family in Need of Court-Ordered Services Act [Chapter 32A, Article 3B NMSA 1978]. A child requesting immediate discharge shall be discharged, except in those situations when the director of the residential treatment or habilitation program, a physician or a licensed psychologist determines that the child requires continued treatment and that the child meets the criteria for involuntary residential treatment or habilitation services as otherwise provided under the Children's Mental Health and Developmental Disabilities Act. In that event, the director, physician or licensed psychologist, after making the determination, shall, on the first business day following the child's request for release from the voluntary program, request that the child's court attorney initiate involuntary placement proceedings. The child's court attorney may petition for such a placement. The child has a right to a hearing on the child's continued treatment within five days of the child's request for release. M. A child who is voluntarily admitted to a residential treatment or habilitation program shall have the child's voluntary admission reviewed at the end of a sixty-day period from the date of the child's initial admission to the program. The review shall be accomplished by having the child's physician or licensed psychologist review the child's treatment and determine whether it would be in the best interests of the child to continue the voluntary admission. If the child's physician or licensed psychologist concludes that continuation of treatment is in the child's best interests, the child's clinician shall so state in a form to be filed in the child's patient record. The residential treatment or habilitation program shall notify the child's attorney at least seven days prior to the date that the sixty-day period is to end or, if necessary, request an attorney pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. The attorney shall then personally meet with the child and ensure that the child understands the child's rights as set forth in this section, that the child understands the method for voluntary termination of the child's admission and that the child knowingly and voluntarily consents to the child's continued treatment. If the attorney determines that the child understands these rights and that the child voluntarily and knowingly desires to remain in the residential treatment or habilitation program and that the clinician has recommended the continued stay in the program, the attorney shall so certify on a form designated by the supreme court. The disposition of these forms shall be as set forth in this section, with one copy going in the child's patient record and the other being sent to the district court in a manner that preserves the child's anonymity. This procedure shall take place every sixty days from the last admission or attorney's certification, whichever comes first. N. If the attorney determines that the child does not voluntarily desire to remain in the program or if the child's clinician has not recommended continued stay by the child in the residential treatment or habilitation program, the child shall be released pursuant to the involuntary placement procedures set forth in this section and the Children's Mental Health and Developmental Disabilities Act shall be followed. History: Laws 2007, ch. 162, § 21. ANNOTATIONS Cross references. — For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to voluntary treatment, see the 2006 NMSA 1978 (32A-6-12) on NMOneSource.com. Compiler's note. — The Family in Need of Court-Ordered Services Act cited in Subsection L, was repealed by Laws 2005, ch. 189, § 77. For current law, see the Family in Need of Services Act, 32A-3A-1 NMSA 1978. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. In entertaining petition for pro bono appointment of attorney to represent a child, the district court was exercising jurisdiction conferred on district courts by the Children's Mental Health and Developmental Disabilities Act. In re Kleinsmith, 2005-NMCA-136, 138 N.M. 601, 124 P.3d 579, cert. denied, 546 U.S. 1034, 126 S. Ct. 758, 163 L. Ed. 2d 574. Absence of statement required by Subsection J of this section would have indicated to the district court that the appointed attorney had not complied with the district court's order, and in such a case, it was not necessary to support the order to show cause with a sworn affidavit. In re Kleinsmith, 2005-NMCA-136, 138 N.M. 601, 124 P.3d 579, cert. denied, 546 U.S. 1034, 126 S. Ct. 758, 163 L. Ed. 2d 574. Telephone interview permissible. — Although a face-to-face meeting is preferred, an appointed attorney could have interviewed the child by telephone to carry out his responsibilities under Subsection I of this section. In re Kleinsmith, 2005-NMCA-136, 138 N.M. 601, 124 P.3d 579, cert. denied, 546 U.S. 1034, 126 S. Ct. 758, 163 L. Ed. 2d 574. 32A-6A-22. Involuntary residential treatment. A. A child may not receive treatment for mental disorders or habilitation for developmental disabilities on an involuntary residential basis except as provided in this section. B. A child afforded rights under the Children's Mental Health and Developmental Disabilities Act shall be advised of those rights at that child's first appearance before the court on a petition under that act. C. A child has the right to be placed in a residential treatment or habilitation program only when the placement is medically necessary. D. A person who believes that a child, as a result of a mental disorder or developmental disability, is in need of residential mental health or developmental disabilities services may request that a children's court attorney file a petition with the court for the child's involuntary placement. The petition shall include a detailed description of the symptoms or behaviors of the child that support the allegations in the petition, a list of prospective witnesses for involuntary placement and a summary of matters to which they will testify. The petition should also contain a discussion of the alternatives to residential care that have been considered and the reasons for rejecting the alternatives. A copy of the petition shall be served upon the child, the child's legal custodian and the child's attorney or guardian ad litem. E. The court shall, upon receiving the petition, appoint counsel for the child unless the child has retained an attorney or an attorney or guardian ad litem has been appointed pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. The attorney or guardian ad litem shall represent the child at all stages of the proceedings. F. If, after interviewing the child, the child's attorney or guardian ad litem determines that the child understands the child's rights and desires to waive the child's presence at the hearing on the issue of involuntary placement, the attorney or guardian ad litem shall submit a verified written statement to the court explaining the attorney's or guardian ad litem's understanding of the child's intent. If the court is satisfied that the child has voluntarily and knowingly waived the child's right to be present at the hearing, the child may be involuntarily placed in a residential treatment or habilitation program at a hearing at which the child is not present. By waiving the right to be present at the involuntary placement hearing, the child waives no other rights. G. An involuntary placement hearing shall be held within seven days of the emergency admission of the child to a residential treatment or habilitation program under this section. An involuntary placement hearing shall be held within five days from a child's declaration that the child desires to terminate the child's voluntary admission to a residential treatment or habilitation program if the child's clinician has assessed and documented that involuntary placement is necessary. H. At the involuntary placement hearing, the child shall: (1) at all times be represented by counsel; (2) have the right to present evidence, including the testimony of a mental health and developmental disabilities professional of the child's own choosing; (3) have the right to cross-examine witnesses; (4) have the right to a complete record of the proceedings; and (5) have the right to an expeditious appeal of an adverse ruling. I. The legal custodian of a child involved in an involuntary placement hearing shall have automatic standing as witnesses and shall be allowed to testify by telephone or through a written affidavit if circumstances make personal testimony too burdensome. J. The court shall include in its findings either a statement of the child's legal custodian's opinion about whether the child should be involuntarily placed in a residential treatment or habilitation program, a statement detailing the efforts made to ascertain the legal custodian's opinion or a statement of why it was not in the child's best interests to have the legal guardian involved. K. The court shall make an order involuntarily placing the child in a residential treatment or habilitation program upon a showing by clear and convincing evidence that: (1) as a result of mental disorder or developmental disability the child needs the treatment or habilitation services proposed; (2) as a result of mental disorder or developmental disability the child is likely to benefit from the treatment or habilitation services proposed; (3) the proposed involuntary placement is consistent with the treatment or habilitation needs of the child; and (4) the proposed involuntary placement is consistent with the least restrictive means principle. L. If the court determines that the child does not meet the criteria for involuntary placement set forth in this section, it may order the child to undergo nonresidential treatment or habilitation as may be appropriate and necessary or it may order no treatment. If the court determines that the child should not be involuntarily placed in a residential treatment or habilitation program and if the child's legal custodian refuses to take custody of the child, the court shall refer the case to the department for an abuse and neglect investigation. The department may take the child into custody pursuant to the provisions of the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] or the Family in Need of Court-Ordered Services Act [Chapter 32A, Article 3B NMSA 1978]. M. A child receiving involuntary residential treatment or habilitation services for a mental disorder or developmental disability under this section shall have a right to periodic review of the child's involuntary placement at the end of every involuntary placement period. An involuntary placement period shall not exceed sixty days. At the expiration of an involuntary placement period, the child may continue in residential care only after a new involuntary placement hearing and entry of a new order of involuntary placement for one involuntary placement period. Nothing set forth in the Children's Mental Health and Developmental Disabilities Act prohibits a child, who has been involuntarily placed and thereafter discharged and released, from subsequently voluntarily consenting to admission under the provisions of that act. N. If the person seeking the involuntary placement of a child to a residential treatment or habilitation program believes that the child is likely to cause serious bodily harm to self or to others during the period that would be required to hold an involuntary placement hearing as provided in this section, the child may be admitted to residential care on an emergency basis. If the child is admitted on an emergency basis, appointment of counsel and other procedures shall then take place as provided elsewhere in this section. History: Laws 2007, ch. 162, § 22 ANNOTATIONS Cross references. — For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to involuntary, see the 2006 NMSA 1978 (32A- 6-13) on NMOneSource.com. Compiler's note. — The Family in Need of Court-Ordered Services Act cited in Subsection L, was repealed by Laws 2005, ch. 189, § 77. For current law, see the Family in Need of Services Act, 32A-3A-1 NMSA 1978. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 43-1-16.1 NMSA 1978 have been included in the annotations to this section. Children's court is presumed to know what evidence is necessary to find child "committable," in order that the court may be able to make the necessary finding that the child is not committable. State v. Doe, 1982-NMCA-128, 98 N.M. 567, 650 P.2d 851, cert. denied, 98 N.M. 590, 651 P.2d 636. Court may find child "not committable". — Where, no matter how the defendant's problems might be classified, there is no available program or facility that can adequately treat him, the court can find that he is not "committable." State v. Doe, 1982- NMCA-128, 98 N.M. 567, 650 P.2d 851, cert. denied, 98 N.M. 590, 651 P.2d 636. Private attorney may petition a court for involuntary commitment of a minor to a mental health facility. 1988 Op. Att'y Gen. No. 88-02. Law reviews. — For article, "Treating Children Under the New Mexico Mental Health and Developmental Disabilities Code," see 10 N.M.L. Rev. 279 (1980). For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980). 32A-6A-23. Liability of persons providing treatment or habilitation services. A. A person providing mental health and developmental disability services to a child and a treatment facility providing mental health and developmental disability services to a child shall not be liable if: (1) the child does not require detention, treatment or services; (2) the admission or treatment was made solely on the basis of misrepresentations by a child seeking treatment or habilitation services or by a child's legal custodian, provided the professional or the facility's staff acted in good faith; or (3) the admission was made solely on the basis of reliance upon a tribal court order, provided the mental health or developmental professional or the facility's staff acted in good faith. B. Nothing in the Children's Mental Health and Developmental Disabilities Act shall be construed to relieve any professional or facility from liability for negligence or intentional misconduct in the diagnosis, treatment or services provided to any child. C. Nothing in the Children's Mental Health and Developmental Disabilities Act shall be construed to relieve any professional or facility from a duty pursuant to reporting laws relating to the detection of child abuse. History: Laws 2007, ch. 162, § 23. ANNOTATIONS Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-24. Disclosure of information. A. Except as otherwise provided in the Children's Mental Health and Developmental Disabilities Act, a person shall not, without the authorization of the child, disclose or transmit any confidential information from which a person well-acquainted with the child might recognize the child as the described person or any code, number or other means that could be used to match the child with confidential information regarding the child. B. When the child is under fourteen years of age, the child's legal custodian is authorized to consent to disclosure on behalf of the child. Information shall also be disclosed to a court-appointed guardian ad litem without consent of the child or the child's legal custodian. C. A child fourteen years of age or older with capacity to consent to disclosure of confidential information shall have the right to consent to disclosure of mental health and habilitation records. A legal custodian who is authorized to make health care decisions for a child has the same rights as the child to request, receive, examine, copy and consent to the disclosure of medical or other health care information when evidence exists that such a child whose consent to disclosure of confidential information is sought does not have capacity to give or withhold valid consent and does not have a treatment guardian appointed by a court. If the legal custodian is not authorized to make decisions for a child under the Children's Mental Health and Developmental Disabilities Act, the person seeking authorization shall petition the court for the appointment of a treatment guardian to make a decision for such a child. D. Authorization from the child or legal custodian shall not be required for the disclosure or transmission of confidential information when the disclosure or transmission: (1) is necessary for treatment of the child and is made in response to a request from a clinician; (2) is necessary to protect against a clear and substantial risk of imminent serious physical injury or death inflicted by the child on self or another; (3) is determined by a clinician not to cause substantial harm to the child and a summary of the child's assessment, treatment plan, progress, discharge plan and other information essential to the child's treatment is made to a child's legal custodian or guardian ad litem; (4) is to the primary caregiver of the child and the information disclosed was necessary for the continuity of the child's treatment in the judgment of the treating clinician who discloses the information; (5) is to an insurer contractually obligated to pay part or all of the expenses relating to the treatment of the child at the residential facility. The information disclosed shall be limited to data identifying the child, facility and treating or supervising physician and the dates and duration of the residential treatment. It shall not be a defense to an insurer's obligation to pay that the information relating to the residential treatment of the child, apart from information disclosed pursuant to this section, has not been disclosed to the insurer; (6) is to a protection and advocacy representative pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Individuals with Mental Illness Act; (7) is pursuant to a court order issued for good cause shown after notice to the child and the child's legal custodian and opportunity to be heard is given. Before issuing an order requiring disclosure, the court shall find that: (a) other ways of obtaining the information are not available or would not be effective; and (b) the need for the disclosure outweighs the potential injury to the child, the clinician-child relationship and treatment services; or (8) is, for all confidential information in existence on and after July 1, 2024, to a governmental agency, its agent or a state educational institution, a duly organized state or county association of licensed physicians or dentists or a licensed health facility or staff committees of such a facility for the purpose of research, subject to the provisions of Section 14-6-1 NMSA 1978 and subject to the review of an institutional review board in compliance with the federal Health Insurance Portability and Accountability Act of 1996 or any succeeding legislation and any federal regulations governing institutional review boards. E. A disclosure ordered by the court shall be limited to the information that is essential to carry out the purpose of the disclosure. Disclosure shall be limited to those persons whose need for the information forms the basis for the order. An order by the court shall include such other measures as are necessary to limit disclosure for the protection of the child, including sealing from public scrutiny the record of a proceeding for which disclosure of a child's record has been ordered. F. An authorization given for the transmission or disclosure of confidential information shall not be effective unless it: (1) is in writing and signed; and (2) contains a statement of the child's right to examine and copy the information to be disclosed, the name or title of the proposed recipient of the information and a description of the use that may be made of the information. G. The child has a right of access to confidential information about the child and has the right to make copies of information about the child and submit clarifying or correcting statements and other documentation of reasonable length for inclusion with the confidential information. The statements and other documentation shall be kept with the relevant confidential information, shall accompany it in the event of disclosure and shall be governed by the provisions of this section to the extent the statements or other documentation contain confidential information. Nothing in this subsection shall prohibit the denial of access to the records when a physician or other mental health or developmental disabilities professional believes and notes in the child's medical records that the disclosure would not be in the best interests of the child. In all cases, the child has the right to petition the court for an order granting access. H. Information concerning a child disclosed under this section shall not be released to any other person, agency or governmental entity or placed in files or computerized data banks accessible to any persons not otherwise authorized to obtain information under this section. Notwithstanding the confidentiality provisions of the Delinquency Act [Chapter 32A, Article 2 NMSA 1978] and the Abuse and Neglect Act Chapter [32A, Article 4 NMSA 1978], information disclosed under this section shall not be re-released without the express consent of the child or legal custodian authorized under the Children's Mental Health and Developmental Disabilities Act to give consent and any other consent necessary for redisclosure in conformance with state and federal law, including consent that may be required from the professional or the facility that created the document. I. Nothing in the Children's Mental Health and Developmental Disabilities Act shall limit the confidentiality rights afforded by federal statute or regulation. J. The department shall promulgate rules for implementing disclosure of records pursuant to this section and in compliance with state and federal law and the Children's Court Rules. History: Laws 2007, ch. 162, § 24; 2008, ch. 75, § 6; 2024, ch. 31, § 1. ANNOTATIONS Cross references. — For the federal Developmental Disabilities Assistance and Bill of Rights Act, see 42 U.S.C. § 6001. For the federal Protection and Advocacy for Mentally Ill Individuals Act of 1991, see 42 U.S.C. § 10801. For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to disclosure of information, see the 2006 NMSA 1978 (32A-6-15) on NMOneSource.com. The 2024 amendment, effective July 1, 2024, removed a certain restriction on the release of confidential information related to children under fourteen years of age, and provided for additional disclosure of confidential information for certain purposes; and in Subsection D, after "child or legal custodian" deleted "for a child less than fourteen years of age", and added Paragraph D(8). The 2008 amendment, effective May 14, 2008, in Subsection D, provided that authorization from the legal custodian for a child less than fourteen year of age shall not be required if the listed conditions apply. 32A-6A-25. Special commissioner. A court may conduct the proceedings required by the Children's Mental Health and Developmental Disabilities Act or may, by general or special order, appoint a special commissioner to do so. The special commissioner shall be a licensed attorney. Upon conclusion of the hearing, the special commissioner shall file findings and recommendations with the court promptly. History: Laws 2007, ch. 162, § 25. ANNOTATIONS Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-26. Transportation. When a child is to be placed in a residential treatment or habilitation program or to be returned to the program during placement, the court ordering the placement or authorizing the return of the child may direct the sheriff, the New Mexico state police or other appropriate persons to furnish suitable transportation in order to effect the placement or return by contacting the department for directions as to the destination of the child. History: Laws 2007, ch. 162, § 26. ANNOTATIONS Cross references. — For transportation applicable to the Adult Mental Health and Developmental Disabilities Code, see 43-1-22 NMSA 1978. For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to transportation, see the 2006 NMSA 1978 (32A-6-18) on NMOneSource.com. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-27. Violation of a child's rights. A child who believes that rights established by the Children's Mental Health and Developmental Disabilities Act or by the constitution of the United States or the constitution of New Mexico have been violated shall have a right to petition the court for redress. The child shall be represented by counsel. The court shall grant relief as is appropriate, subject to the provisions of the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978]. History: Laws 2007, ch. 162, § 27. ANNOTATIONS Cross references. — For violation of clients' rights applicable to the Adult Mental Health and Developmental Disabilities Code, see 43-1-23 NMSA 1978. For provisions of the 1995 "Children's Mental Health and Developmental Disabilities Act, relating to violation of children's rights, see the 2006 NMSA 1978 (32A-6-19) on NMOneSource.com. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-28. Cost of care. An indigent child may receive care and treatment at a state-operated facility without charge. The governing authorities of the facility may require payment for the cost of care and treatment from others pursuant to established fee schedules based on ability to pay. History: Laws 2007, ch. 162, § 28. ANNOTATIONS Cross references. — For cost of care applicable to the Adult Mental Health and Developmental Disabilities Code, see 43-1-25 NMSA 1978. For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to cost of care, see the , 2006 NMSA 1978 (32A-6-20) on NMOneSource.com. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. 32A-6A-29. Recognition of tribal court involuntary placement orders. A. Notwithstanding the provisions of any other law to the contrary, an involuntary placement order for a child issued by a tribal court shall be recognized and enforced by the district court for the judicial district in which the tribal court is located. The involuntary placement order shall be filed with the clerk of the district court. The tribal court, as the court of original jurisdiction, shall retain jurisdiction and authority over the child. B. A child placed in an evaluation facility pursuant to the provisions of this section shall be subject to the continuing jurisdiction of the tribal court; provided that any decisions regarding discharge or release of the child from the evaluation facility shall be made by the administrator of that facility. Prior to discharging or releasing the child, the facility shall: (1) make custody arrangements with the child's legal custodian; and (2) establish a plan for the child's aftercare. C. When an Indian child is placed in an evaluation facility pursuant to the provisions of this section, any outpatient treatment of the Indian child shall be provided in the same manner as treatment would be provided for any other child. D. When an Indian child requires emergency treatment or habilitation, that treatment or habilitation shall be provided pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. E. An Indian child residing on or off a reservation, as a citizen of this state, shall have the same right to services available to other children of the state. History: Laws 2007, ch. 162, § 29. ANNOTATIONS Cross references. — For provisions of the 1995 "Children's Mental Health and Developmental Disabilities Act, relating to tribal court involuntary placement orders, see the 2006 NMSA 1978 (32A-6-21) on NMOneSource.com. Effective dates. — Laws 2007, ch. 162 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 15, 2007, 90 days after the adjournment of the legislature. Temporary provision. — Laws 2007, ch. 162, § 30, provided that the department of health shall promulgate rules for the operation of a human rights committee charged with review and evaluation of a treatment plan that includes aversive intervention. Law reviews. — For article, "Problems in the Application of Full Faith and Credit for Indian Tribes," see 7 N.M.L. Rev. 133 (1977). 32A-6A-30. Rules. The department shall promulgate rules for the operation of out-of-home treatment and habilitation programs identified as psychiatric residential treatment facilities or non- medical community-based residential programs in keeping with the purposes of the Children's Mental Health and Developmental Disabilities Act and in conformance with applicable federal law and regulation. History: Laws 2008, ch. 75, § 7. ANNOTATIONS Effective dates. — Laws 2008, ch. 75 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 14, 2008, 90 days after the adjournment of the legislature. ARTICLE 7 Juvenile Parole Board (Repealed.) 32A-7-1. Repealed. History: 1978 Comp., § 32A-7-1, enacted by Laws 1993, ch. 77, § 194; repealed by Laws 2009, ch. 239, § 70. ANNOTATIONS Repeals. — Laws 2009, ch. 239, § 70 repealed 32A-7-1 NMSA 1978, as enacted by Laws 1993, ch. 77, § 194, relating to the short title, effective July 1, 2009. For provisions of former section, see the 2008 NMSA 1978 on NMOneSource.com. 32A-7-2. Repealed. History: 1978 Comp., § 32A-7-2, enacted by Laws 1993, ch. 77, § 195; repealed by Laws 2009, ch. 239, § 70. ANNOTATIONS Repeals. — Laws 2009, ch. 239, § 70 repealed 32A-7-2 NMSA 1978, as enacted by Laws 1993, ch. 77, § 195, relating to juvenile parole board, terms and director, effective July 1, 2009. For provisions of former section, see the 2008 NMSA 1978 on NMOneSource.com. 32A-7-3. Repealed. History: 1978 Comp., § 32A-7-3, enacted by Laws 1993, ch. 77, § 196; repealed by Laws 2009, ch. 239, § 70. ANNOTATIONS Repeals. — Laws 2009, ch. 239, § 70 repealed 32A-7-3 NMSA 1978, as enacted by Laws 1993, ch. 77, § 196, relating to removal and vacancies, effective July 1, 2009. For provisions of former section, see the 2008 NMSA 1978 on NMOneSource.com. 32A-7-4. Repealed. History: 1978 Comp., § 32A-7-4, enacted by Laws 1993, ch. 77, § 197; repealed by Laws 2009, ch. 239, § 70. ANNOTATIONS Repeals. — Laws 2009, ch. 239, § 70 repealed 32A-7-4 NMSA 1978, as enacted by Laws 1993, ch. 77, § 197, relating to qualifications of board, effective July 1, 2009. For provisions of former section, see the 2008 NMSA 1978 on NMOneSource.com. 32A-7-5. Repealed. History: 1978 Comp., § 32A-7-5, enacted by Laws 1993, ch. 77, § 198; repealed by Laws 2009, ch. 239, § 70. ANNOTATIONS Repeals. — Laws 2009, ch. 239, § 70 repealed 32A-7-5 NMSA 1978, as enacted by Laws 1993, ch. 77, § 198, relating to the chairperson, effective July 1, 2009. For provisions of former section, see the 2008 NMSA 1978 on NMOneSource.com. 32A-7-6. Repealed. History: 1978 Comp., § 32A-7-6, enacted by Laws 1993, ch. 77, § 199; repealed by Laws 2009, ch. 239, § 70. ANNOTATIONS Repeals. — Laws 2009, ch. 239, § 70 repealed 32A-7-6 NMSA 1978, as enacted by Laws 1993, ch. 77, § 199, relating to powers and duties of the board, effective July 1, 2009. For provisions of former section, see the 2008 NMSA 1978 on NMOneSource.com. 32A-7-7. Repealed. History: 1978 Comp., § 32A-7-7, enacted by Laws 1993, ch. 77, § 200; repealed by Laws 2009, ch. 239, § 70. ANNOTATIONS Repeals. — Laws 2009, ch. 239, § 70 repealed 32A-7-7 NMSA 1978, as enacted by Laws 1993, ch. 77, § 200, relating to compensation, effective July 1, 2009. For provisions of former section, see the 2008 NMSA 1978 on NMOneSource.com. 32A-7-8. Repealed. History: 1978 Comp., § 32A-7-8, enacted by Laws 1993, ch. 77, § 201; 2003, ch. 225, § 17; repealed by Laws 2009, ch. 239, § 70. ANNOTATIONS Repeals. — Laws 2009, ch. 239, § 70 repealed 32A-7-8 NMSA 1978, as enacted by Laws 1993, ch. 77, § 201, relating to parole eligibility, effective July 1, 2009. For provisions of former section, see the 2008 NMSA 1978 on NMOneSource.com. 32A-7-9. Repealed. History: 1978 Comp., § 32A-7-9, enacted by Laws 1993, ch. 77, § 202; repealed by Laws 2009, ch. 239, § 70. ANNOTATIONS Repeals. — Laws 2009, ch. 239, § 70 repealed 32A-7-9 NMSA 1978, as enacted by Laws 1993, ch. 77, § 202, relating to access, effective July 1, 2009. For provisions of former section, see the 2008 NMSA 1978 on NMOneSource.com. ARTICLE 7A Juvenile Public Safety Advisory Board 32A-7A-1. Short title. Chapter 32A, Article 7A NMSA 1978 may be cited as the "Juvenile Public Safety Advisory Board Act". History: 1978 Comp., § 32A-7A-1, as enacted by Laws 2009, ch. 239, § 58. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made this section effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-7A-2. Juvenile public safety advisory board; terms; director. A. The "juvenile public safety advisory board" is created, consisting of no fewer than three and no more than seven members appointed by the governor. The board is administratively attached to the department. The terms of members of the board shall be six years. B. A director shall be appointed by the governor as the administrative officer of the juvenile public safety advisory board. The director shall employ other staff as necessary to carry out the duties of the board. Employees shall be employed in classified positions and shall be subject to the provisions of the Personnel Act [Chapter 10, Article 9 NMSA 1978]. History: 1978 Comp., § 32A-7A-2, as enacted by Laws 2009, ch. 239, § 59; 2012, ch. 36, § 1. ANNOTATIONS Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2012 amendment, effective July 1, 2012, established the minimum and maximum number of members of the board and in Subsection A, in the first sentence, after "consisting of", added "no fewer than three and no more than". 32A-7A-3. Board; removal; vacancies. A member of the juvenile public safety advisory board may be removed by the governor as provided in Article 5, Section 5 of the constitution of New Mexico. Vacancies shall be filled by the governor for the remainder of the unexpired term. History: 1978 Comp., § 32A-7A-3, as enacted by Laws 2009, ch. 239, § 60. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made this section effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-7A-4. Board; qualifications. Members of the juvenile public safety advisory board shall be persons qualified by education or professional training in such fields as criminology, education, health, psychology, psychiatry, law, social work or sociology for children and youth. The membership shall be reasonably representative of the various geographic regions of the state. History: 1978 Comp., § 32A-7A-4, as enacted by Laws 2009, ch. 239, § 61. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made this section effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-7A-5. Board; chair. A. The governor shall designate one member of the juvenile public safety advisory board to serve as chair. B. The chair may designate two members of the board to serve as regional vice chairs. C. An employee of the department shall not be designated to serve as chair or vice chair of the board. History: 1978 Comp., § 32A-7A-5, as enacted by Laws 2009, ch. 239, § 62; 2012, ch. 36, § 2. ANNOTATIONS Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2012 amendment, effective July 1, 2012, prohibited employees of the department from serving as chair or vice chair of the board and added Subsection C. 32A-7A-6. Board; powers and duties. A. The juvenile public safety advisory board shall: (1) advise the department on release decisions, including the criteria to be used to grant release and participation in decisions to grant or deny release; (2) meet with the secretary of children, youth and families or the secretary's designee a minimum of twice each year for the purpose of reviewing the activities of the department; (3) visit each facility for adjudicated delinquent children operated by the department at least once each year and on or before June 30 of each year, submit a written report to the governor and the secretary regarding conditions relating to the care and treatment of youth assigned to the facilities and any other matters pertinent in the judgment of the board; (4) make recommendations to the secretary of children, youth and families and the director of the juvenile justice division of the department concerning programs and facilities for adjudicated delinquent children; and (5) adopt rules and regulations as may be necessary for the effectual discharge of duties of the board. B. Within forty days of a juvenile's arrival at a facility, the juvenile public safety advisory board shall conduct an initial assessment of the juvenile. At regularly scheduled intervals thereafter, the board shall conduct administrative reviews to assess the juvenile's progress or lack thereof. After each administrative review, the board shall prepare a report of the juvenile offender's progress with recommendations as to readiness for release or appropriateness of programming. History: 1978 Comp., § 32A-7A-6, as enacted by Laws 2009, ch. 239, § 63. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made this section effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-7A-7. Board; compensation. The members of the juvenile public safety advisory board shall receive per diem and mileage as provided for nonsalaried public officers in the Per Diem and Mileage Act [10- 8-1 to 10-8-8 NMSA 1978] and shall receive no other compensation, perquisite or allowance. History: 1978 Comp., § 32A-7A-7, as enacted by Laws 2009, ch. 239, § 64. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made this section effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. 32A-7A-8. Access. The juvenile public safety advisory board shall have access at reasonable times to any adjudicated delinquent child and any records pertaining to the child for whom the department is considering release or who has requested release pursuant to procedures established by the department. The agency or facility to which legal custody was transferred shall also provide the board with facilities for communicating with and interviewing children. History: 1978 Comp., § 32A-7A-8, as enacted by Laws 2009, ch. 239, § 65. ANNOTATIONS Effective dates. — Laws 2009, ch. 239, § 72 made this section effective July 1, 2009. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. ARTICLE 8 Citizen Substitute Care Review ANNOTATIONS Compiler's notes. — Sections 32A-8-1 to 32A-8-7 NMSA 1978 were originally enacted as 32-8-1 to 32-8-7 NMSA 1978 by Laws 1993, ch. 77, §§ 203 to 209. The sections as enacted by Chapter 77 of Laws 1993 were recompiled to Chapter 32A NMSA 1978 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under former law have been retained whenever possible. 32A-8-1. Short title. Chapter 32A, Article 8 NMSA 1978 may be cited as the "Citizen Substitute Care Review Act". History: 1978 Comp., § 32A-8-1, enacted by Laws 1993, ch. 77, § 203; 2016, ch. 60, § 4. ANNOTATIONS The 2016 amendment, effective July 1, 2016, after "Chapter", changed "32" to "32A". 32A-8-2. Purpose of act. The purpose of the Citizen Substitute Care Review Act is to provide a permanent system for independent and objective monitoring of children placed in the custody of the department by examining the policies, procedures and practices of the department and, where appropriate, specific cases to evaluate the extent to which the department is effectively discharging its child protection responsibilities. History: 1978 Comp., § 32A-8-2, enacted by Laws 1993, ch. 77, § 204; 2016, ch. 60, § 5. ANNOTATIONS The 2016 amendment, effective July 1, 2016, clarified how the citizen substitute care review boards are to monitor children placed in the custody of the children, youth and families department; and after "custody of the department", added the remainder of the section. 32A-8-3. Repealed. History: 1978 Comp., § 32A-8-3, enacted by Laws 1993, ch. 77, § 205; repealed by Laws 2016, ch. 60, § 10. ANNOTATIONS Repeals. — Laws 2016, ch. 60, § 10 repealed 32A-8-3 NMSA 1978, as enacted by Laws 1993, ch. 77, § 205, relating to implementation of the act, effective July 1, 2016. For provisions of former section, see the 2015 NMSA 1978 on NMOneSource.com. 32A-8-4. Substitute care advisory council; members; compensation; responsibilities; advisory committee. A. The "substitute care advisory council" is created and, in accordance with the provisions of Section 9-1-7 NMSA 1978, is administratively attached to the regulation and licensing department. The general purpose of the council is to oversee substitute care review boards in their monitoring of children placed in the custody of the children, youth and families department to identify systemic policy issues regarding substitute care. The council shall be composed of nine persons, including: (1) the secretary of public education or the secretary's designee; (2) the secretary of human services or the secretary's designee; (3) the secretary of finance and administration or the secretary's designee; (4) the secretary of health or the secretary's designee; (5) two public members, appointed by the governor, who: (a) are at least eighteen and no more than thirty years of age at the time of appointment; and (b) were previously placed in substitute care; (6) two public members, appointed by the governor, who have expertise in the area of child welfare; and (7) one children's court judge, appointed by the governor. B. The council may hire staff and contract for services to carry out the purposes of the Citizen Substitute Care Review Act. Except as provided pursuant to Paragraph (7) of Subsection A of this section, a person or a relative of a person employed by the department or a district court shall not serve on the council. C. Terms of office of public members of the council shall be three years. Public members shall be eligible for reappointment. In the event that a vacancy occurs among the members of the council, the governor shall appoint another person to serve the unexpired portion of the term. D. The council shall select a chairperson, a vice chairperson and other officers as it deems necessary. E. The council shall meet no less than twice annually and more frequently upon the call of the chairperson. F. The council shall adopt reasonable rules relating to the functions and procedures of the substitute care review boards and the council in accordance with the duties of the boards as provided in the Citizen Substitute Care Review Act. These rules shall: (1) establish training requirements for substitute care review board members; (2) establish criteria for council designation of cases for substitute care review board review; (3) establish procedures for substitute care review board review of designated cases; (4) establish criteria for membership and tenure on and operating procedures for substitute care review boards; (5) specify the information needed for designated cases to be monitored by substitute care review boards; and (6) specify case information to be tracked and reported to the council. G. When adopting rules establishing criteria for designation of cases for substitute care review board review, the council shall weigh the importance of the following factors, including: (1) sibling placements; (2) the frequency and severity of neglect or abuse; (3) the behavioral health status of household members; (4) the placement of children in households where there are no relatives of the children; (5) data related to demographics; and (6) relevant trend data. H. The council shall review and coordinate the activities of the substitute care review boards and make a report with its recommendations to the department, the courts and the appropriate legislative interim committees, on or before November 1 of each year, regarding statutes, rules, policies and procedures relating to substitute care. This report shall include recommendations for any changes to substitute care review boards. I. Council members shall receive per diem and mileage as provided for nonsalaried public officers in the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978]; provided that, if a different provision of that act applies to a specific member, that member shall be paid pursuant to that applicable provision. Members shall receive no other compensation, perquisite or allowance. J. The council shall appoint by October 1 of each year a six-member advisory committee from a list of substitute care review board members that the substitute care review boards shall nominate. The advisory council shall meet with the council at least once per year to advise the council on matters relating to substitute care review. Advisory committee members shall serve terms of one year and may be reappointed. History: 1978 Comp., § 32A-8-4, enacted by Laws 1993, ch. 77, § 206; 2016, ch. 60, § 6. ANNOTATIONS The 2016 amendment, effective July 1, 2016, created the substitute care advisory council, and provided for the council’s duties and responsibilities; in the catchline, deleted "State advisory committee" and added "Substitute care advisory council", and after "responsibilities", added "advisory committee"; in Subsection A, deleted "A state advisory committee" and added the next two sentences, and after the second sentence, added "The council", after "shall be composed of", deleted "three persons with expertise in the area of substitute care, appointed by the secretary of finance and administration, and also one representative of each local substitute care review board. Each local board shall select its representative to the state advisory committee in accordance with procedures established by that committee. No" and added "nine persons, including:", added Paragraphs (1) through (5), designated the remainder of Subsection A as Subsection B and designated former Subsections B through D as Subsections C through E, respectively; in new Subsection B, added "The council may hire staff and contract for services to carry out the purposes of the Citizen Substitute Care Review Act. Except as provided pursuant to Paragraph (7) of Subsection A of this section, a", after "person", added "or a relative of a person", after "a district court", deleted "may" and added "shall not", and after "serve on the", deleted "state advisory committee" and added "council"; in Subsection C, after "Terms of office of", deleted "local substitute care review board" and added "public", after "members of the", deleted "state advisory committee shall be coterminous with their terms as members of the local boards. Terms of office of members who are appointed by the secretary of finance and administration shall be for three years; provided, however, that appointment of the first state advisory committee members shall be to staggered terms so that one member shall serve for a term of three years, one member shall serve for a term of two years and one member shall serve for a term of one year. The term of each member shall expire on June 30 of the appropriate year" and added "council shall be three years. Public members shall be eligible for reappointment", after "among the members of the", deleted "state advisory committee appointed by the secretary of finance and administration" and added "council", and after "the", deleted "secretary" and added "governor"; in Subsection D, after "The", deleted "state advisory committee" and added "council", and after "vice chairperson", deleted "an executive committee"; in Subsection E, after "The", deleted "state advisory committee" and added "council", and after "chairperson", deleted "or as the executive committee may determine", and designated the remainder of the language in former Subsection D as Subsections F and H, and designated former Subsection E as Subsection I; in Subsection F, after "The", deleted "state advisory committee is authorized to" and added "council shall", after "procedures of the", deleted "local", after "review boards and the", deleted "state advisory committee" and added "council", and after "These rules shall", deleted "include guidelines for the determination of the appropriate type of review and", added Paragraphs (1) through (6); added a new Subsection G; in Subsection H, after "The", deleted "state advisory committee" and added "council", after "activities of the", deleted "local", after "review boards and make", added "a report with its", after "courts and the", deleted "legislature" and added "appropriate legislative interim committees", after "on or before", deleted "January" and added "November", after "statutes", added "rules", and added the last sentence; in Subsection I, added "Council", after "Mileage Act", added "provided that, if a different provision of that act applies to a specific member, that member shall be paid pursuant to that applicable provision. Members"; and added a new Subsection J. 32A-8-5. Substitute care review boards; appointments; exclusion; terms; training; compensation; meetings. A. The council shall establish no fewer than three substitute care review boards and, in each judicial district established pursuant to Section 34-6-1 NMSA 1978, no more than the following number of substitute care review boards: (1) two substitute care review boards in the first judicial district; (2) three substitute care review boards in the second judicial district; (3) one substitute care review board in the third judicial district; (4) two substitute care review boards in the fourth judicial district; (5) two substitute care review boards in the fifth judicial district; (6) two substitute care review boards in the sixth judicial district; (7) two substitute care review boards in the seventh judicial district; (8) two substitute care review boards in the eighth judicial district; (9) one substitute care review board in the ninth judicial district; (10) one substitute care review board in the tenth judicial district; (11) two substitute care review boards in the eleventh judicial district; (12) two substitute care review boards in the twelfth judicial district; and (13) two substitute care review boards in the thirteenth judicial district. B. The council, or a contractor performing services for the council pursuant to Subsection B of Section 32A-8-4 NMSA 1978, shall provide administrative support to substitute care review boards in accordance with the Citizen Substitute Care Review Act and rules that the council has adopted. C. A person or a relative of a person employed by the department of finance and administration, the children, youth and families department, the human services department [health care authority department], the public education department, the department of health, a contractor of the council or a district court shall not serve on a substitute care review board. D. The composition of each substitute care review board shall be broadly representative of the community in which the board serves and include members with expertise in the prevention and treatment of child abuse and neglect and may include adult former victims of child abuse or neglect. E. Each substitute care review board shall meet at least once per quarter to review cases designated in accordance with council rules. F. Substitute care review board members may receive per diem and mileage as provided for nonsalaried public officers in the Per Diem and Mileage Act [10-8-1 to 10-8- 8 NMSA 1978]; provided that, if a different provision of that act applies to a specific member, that member shall be paid pursuant to that applicable provision. Members shall receive no other compensation, perquisite or allowance. G. Upon request of the council, a substitute care review board shall prepare a report summarizing its activities. These reports shall not contain confidential information. History: 1978 Comp., § 32A-8-5, enacted by Laws 1993, ch. 77, § 207; 2016, ch. 60, § 7. ANNOTATIONS Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Laws 2023, ch. 205, § 16 provided that references to the human services department shall be deemed to be references to the health care authority department. The 2016 amendment, effective July 1, 2016, required the substitute care advisory council to establish no fewer than three substitute care review boards and limited the number of boards that can be established in each of the 13 judicial districts, provided for administrative support for the boards, and provided for duties and responsibilities of the boards; in the catchline, deleted "local" and added "substitute care review"; in Subsection A, in the introductory sentence, after "The", deleted "contractor, selected by the department of finance and administration pursuant to the provisions of Section 32-8- 3 NMSA 1978" and added "council", after "shall establish", added the remainder of the introductory sentence, added new Paragraphs (1) through (13), designated the remainder of former Subsection A as new Subsection B; in Subsection B, added "The council, or a contractor performing services for the council pursuant to Subsection B of Section 32A-8-4 NMSA 1978, shall provide administrative support to substitute care review boards in accordance with", and after "the Citizen Substitute Care Review Act", deleted the remainder of the subsection and added "and rules that the council has adopted"; redesignated former Subsection B as Subsection C; in Subsection C, added "A", after "person", added "or a relative of a person", after "department of finance and administration, the", added "children, youth and families", after "department", added "the human services department, the public education department, the department of health, a contractor of the council", after "a district court", deleted "may" and added "shall not", and after "serve on a", deleted "local"; deleted former Subsection C; in Subsection D, deleted "Local" and added the remainder of the subsection; added a new Subsection E, and designated the remainder of the language from former Subsection D as Subsection F; in Subsection F, after "Per Diem and Mileage Act", deleted "and" and added "provided that, if a different provision of that act applies to a specific member, that member shall be paid pursuant to that applicable provision. Members"; and added a new Subsection G. 32A-8-6. Substitute care review board reviews of cases. When council rules designate the review of a case, a substitute care review board shall conduct the review in accordance with the provisions of the Children's Code and the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] and council rules. The designated substitute care review board shall submit a report to the court for each case that it reviews. The substitute care review board shall give the parties in a children's court case under substitute care review board review notice of a substitute care review board meeting related to that case and afford the parties an opportunity to participate fully in the substitute care review board meeting. History: 1978 Comp., § 32A-8-6, enacted by Laws 1993, ch. 77, § 208; 2016, ch. 60, § 8. ANNOTATIONS Compiler's note. — Laws 1993, ch. 77, § 119, enacted as 32-4-23 NMSA 1978, was recompiled as 32A-4-25 NMSA 1978 by the compiler. See note at the beginning of this article. The 2016 amendment, effective July 1, 2016, required that when the substitute care advisory council requires a substitute care review board to review a case, that the review be conducted in accordance with the Children’s Code and the Abuse and Neglect Act and the council’s rules; in the catchline, deleted "Citizen" and added "Substitute care", and after "reviews of", deleted "dispositional judgments" and added "cases"; in former Subsection A, deleted the subsection designation and deleted "Prior to any judicial review by the court pursuant to Section 32A-4-23 NMSA 1978, the local substitute care review board shall review any dispositional order or the continuation of the order and the department’s progress report on the child and submit a report to the court. The", and added the next two sentences and "The substitute care review board shall give the", after "parties in", deleted "the" and added "a", after "children’s court", deleted "proceedings shall be given prior" and added "case under substitute care review board review", after "notice of", deleted "the" and added "a substitute care", after "review board meeting", added "related to that case", after "and", deleted "be afforded" and added "afford", after "the", added "parties an", and after "participate fully in the", added "substitute care review board"; and deleted former Subsection B. 32A-8-7. Transfer provisions; funds; contracts; references in law. On the effective date of this 2016 act: A. all functions, records, personnel, appropriations, money, furniture, property, equipment and supplies of the department of finance and administration relating to the Citizen Substitute Care Review Act shall be transferred to the council; B. all appropriations, contract funds and funds for contract administration and staff, the cost of council per diem and travel, training and all other costs relating to the Citizen Substitute Care Review Act shall be transferred from the department of finance and administration to the council; C. all existing rules and regulations, contracts and agreements of the department of finance and administration relating to the statewide system of substitute care review boards shall be binding and effective on the council; and D. all references in law to the state advisory committee shall be deemed to be references to the council. History: 1978 Comp., § 32A-8-7, enacted by Laws 1993, ch. 77, § 209; 2016, ch. 60, § 9. ANNOTATIONS Compiler’s notes. — The "effective date of this 2016 act" referred to in the introductory language is July 1, 2016, the effective date of Laws 2016, ch. 60. The 2016 amendment, effective July 1, 2016, required the department of finance and administration to transfer all functions, records, personnel, appropriations, money, equipment, property and supplies relating to the Citizen Substitute Care Review Act to the substitute care advisory council, and required all references in law to the state advisory committee shall be deemed to be references to the council; in the catchline, deleted "temporary provisions", after "transfer", added "provisions", and after "contracts", added "references in law"; added the introductory language "On the effective date of this 2016 act"; in Subsection A, deleted "On the effective date of the Children’s Code", after "all", added "functions", after "personnel", added "appropriations", after "the department", added "of finance and administration", and after "transferred to", deleted "department of finance and administration" and added "council"; in Subsection B, deleted "On the effective date of the Children’s Code", after "the cost of", deleted "advisory committee" and added "council", after "the department", added "of finance and administration", and after "to the", deleted "department of finance and administration" and added "council"; in Subsection C, deleted "On the effective date of the Children’s Code", after "contracts and agreements", deleted "in effect with" and added "of", after "the department", deleted "for providing a" and added "of finance and administration relating to the", after "system of", deleted "local", and after "effective on the", deleted "department of finance and administration" and added "council; and"; and added a new Subsection D. ARTICLE 9 Children's Shelter Care ANNOTATIONS Compiler's notes. — Sections 32A-9-1 to 32A-9-7 NMSA 1978 were originally recompiled from 32-2A-1 to 32-2A-7 NMSA 1978 to 32-9-1 to 32-9-7 NMSA 1978 by Laws 1993, ch. 77, § 210. The sections as enacted by Chapter 77 of Laws 1993 were recompiled to Chapter 32A NMSA 1978 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under former law have been retained whenever possible. 32A-9-1. Short title. Sections 1 through 7 [32A-9-1 to 32A-9-7 NMSA 1978] of this act may be cited as the "Children's Shelter Care Act". History: 1978 Comp., § 32-2A-1, enacted by Laws 1978, ch. 108, § 1; recompiled as 1978 Comp., § 32A-9-1 by Laws 1993, ch. 77, § 210. 32A-9-2. Legislative findings and purpose. A. The legislature finds and declares that appropriate and distinct programs of supervision and care for children are required to fulfill the purposes of the Children's Code; that many children are needlessly detained in secured facilities on charges for acts that would not be criminal if they were committed by an adult; that these children would benefit from either immediate return to the family or placement in shelter-care homes or nonsecured shelter-care facilities; and that certain alleged delinquents will benefit from nonsecured placements and do not require secure detention. B. The purpose of the Children's Shelter Care Act is: (1) to provide funding for the establishment of shelter-care facilities or programs; and (2) to divert children out of the juvenile justice system and provide for their supervision and care in community-based shelter-care homes and facilities when the immediate return to the child's family is not feasible or when intervention programs alone are not sufficient for the care and treatment of the child. History: 1978 Comp., § 32-2A-2, enacted by Laws 1978, ch. 108, § 2; recompiled as 1978 Comp., § 32A-9-2 by Laws 1993, ch. 77, § 210. 32A-9-3. Definitions. As used in the Children's Shelter Care Act: A. "child" means an individual who is less than eighteen years old; B. "alleged child in need of supervision" means a child who is charged with an offense applicable only to children or not classified as criminal; C. "child in need of supervision" means a child found by the children's court or family court division of the district court to: (1) have committed an offense applicable only to children or not classified as criminal; and (2) be in need of care or rehabilitation; D. "alleged delinquent child" means a child charged with an act that would be designated as a crime under the Criminal Code [30-1-1 NMSA 1978] if committed by an adult; E. "community-based shelter-care facility" means a physically nonrestrictive home or living facility to be used as a temporary living place for a child eligible under Section 32-2A-6 [32A-9-6] NMSA 1978, pending the return of such child to his family or his placement in a residential facility designed for long-term placement; F. "programs of supervision and care" includes programs, placements and services designed to serve as alternatives to the physical detention of alleged children in need of supervision, alleged delinquent children and children in need of supervision; and G. "department" means the children, youth and families department. History: 1978 Comp., § 32-2A-3, enacted by Laws 1978, ch. 108, § 3; 1983, ch. 180, § 1; 1992, ch. 57, § 34; recompiled as 1978 Comp., § 32A-9-3 by Laws 1993, ch. 77, § 210. ANNOTATIONS Cross references. — For children, youth and families department, see 9-2A-1 NMSA 1978. 32A-9-4. Rules and regulations; promulgation. The department shall promulgate necessary rules, regulations, standards and procedures to carry out the purposes of the Children's Shelter Care Act. History: 1978 Comp., § 32-2A-4, enacted by Laws 1978, ch. 108, § 4; recompiled as 1978 Comp., § 32A-9-4 by Laws 1993, ch. 77, § 210. 32A-9-5. Community-based shelter-care facilities. The department shall establish and support community-based shelter-care facilities and programs of supervision and care, and shall support existing community-based shelter-care facilities and other programs of supervision and care. History: 1978 Comp., § 32-2A-5, enacted by Laws 1978, ch. 108, § 5; recompiled as 1978 Comp., § 32A-9-5 by Laws 1993, ch. 77, § 210. 32A-9-6. Eligibility of child for placement. A child is eligible to be placed in a community-based shelter-care facility provided for under Section 5 [32A-9-5 NMSA 1978] of the Children's Shelter Care Act if: A. the child is an alleged child in need of supervision; a child in need of supervision; or B. the child is an alleged delinquent child and there is no probable cause to believe that the child will injure others or himself, run away or be taken away so as to be unavailable for proceedings of the court or its officers. History: 1978 Comp., § 32-2A-6, enacted by Laws 1978, ch. 108, § 6; recompiled as 1978 Comp., § 32A-9-6 by Laws 1993, ch. 77, § 210. 32A-9-7. Report to the governor and the legislature. The department shall provide an annual report to the governor and the legislature concerning the projects and programs funded under the Children's Shelter Care Act. The report shall include: A. a description of the community-based shelter-care facilities and programs of care and supervision funded pursuant to the Children's Shelter Care Act; B. an accounting of expenditures; C. an analysis of the effectiveness of the community-based shelter-care facilities and programs of care and supervision funded pursuant to that act; and D. a description of procedures employed by the department in awarding grants, and auditing, monitoring and evaluating facilities and programs. History: 1978 Comp., § 32-2A-7, enacted by Laws 1978, ch. 108, § 7; recompiled as 1978 Comp., § 32A-9-7 by Laws 1993, ch. 77, § 210. ARTICLE 10 Interstate Compact for Juveniles 32A-10-1. Repealed. History: 1953 Comp., § 13-16-1, enacted by Laws 1973, ch. 238, § 1; recompiled as 1978 Comp., § 32A-10-1 by Laws 1993, ch. 77, § 211; repealed by Laws 2003, ch. 48. ANNOTATIONS Repeals. — Laws 2003, ch. 48 repealed 32A-10-1 NMSA 1978, as enacted by Laws 1973, ch. 238, § 1, when the Interstate Compact for Juveniles was enacted into law by the thirty-fifth state. As of September 14, 2009, forty states had enacted the Interstate Compact for Juveniles into law. For provisions of the former section, see the 2011 NMSA 1978 on NMOneSource.com. 32A-10-2. Repealed. History: 1953 Comp., § 13-16-2, enacted by Laws 1973, ch. 238, § 2; recompiled as 1978 Comp., § 32A-10-2 by Laws 1993, ch. 77, § 211; repealed by Laws 2003, ch. 48. ANNOTATIONS Repeals. — Laws 2003, ch. 48 repealed 32A-10-2 NMSA 1978, as enacted by Laws 1973, ch. 238, § 2, when the Interstate Compact for Juveniles was enacted into law by the thirty-fifth state. As of September 14, 2009, forty states had enacted the Interstate Compact for Juveniles into law. For provisions of the former section, see the 2011 NMSA 1978 on NMOneSource.com. 32A-10-3. Repealed. History: 1953 Comp., § 13-16-3, enacted by Laws 1973, ch. 238, § 3; recompiled as 1978 Comp., § 32A-10-3 by Laws 1993, ch. 77, § 211; repealed by Laws 2003, ch. 48. ANNOTATIONS Repeals. — Laws 2003, ch. 48 repealed 32A-10-3 NMSA 1978, as enacted by Laws 1973, ch. 238, § 3, when the Interstate Compact for Juveniles was enacted into law by the thirty-fifth state. As of September 14, 2009, forty states had enacted the Interstate Compact for Juveniles into law. For provisions of the former section, see the 2011 NMSA 1978 on NMOneSource.com. 32A-10-4. Repealed. History: 1953 Comp., § 13-16-4, enacted by Laws 1973, ch. 238, § 4; 1988, ch. 101, § 28; 1992, ch. 57, § 35; recompiled as 1978 Comp., § 32A-10-4 by Laws 1993, ch. 77, § 211; repealed by Laws 2003, ch. 48. ANNOTATIONS Repeals. — Laws 2003, ch. 48 repealed 32A-10-4 NMSA 1978, as enacted by Laws 1973, ch. 238, § 4, when the Interstate Compact for Juveniles was enacted into law by the thirty-fifth state. As of September 14, 2009, forty states had enacted the Interstate Compact for Juveniles into law. For provisions of the former section, see the 2011 NMSA 1978 on NMOneSource.com. 32A-10-5. Repealed. History: 1953 Comp., § 13-16-5, enacted by Laws 1973, ch. 238, § 5; recompiled as 1978 Comp., § 32A-10-5 by Laws 1993, ch. 77, § 211; repealed by Laws 2003, ch. 48. ANNOTATIONS Repeals. — Laws 2003, ch. 48 repealed 32A-10-5 NMSA 1978, as enacted by Laws 1973, ch. 238, § 5, when the Interstate Compact for Juveniles was enacted into law by the thirty-fifth state. As of September 14, 2009, forty states had enacted the Interstate Compact for Juveniles into law. For provisions of the former section, see the 2011 NMSA 1978 on NMOneSource.com. 32A-10-6. Repealed. History: 1953 Comp., § 13-16-6, enacted by Laws 1973, ch. 238, § 6; 1988, ch. 101, § 29; 1992, ch. 57, § 36; recompiled as 1978 Comp., § 32A-10-6 by Laws 1993, ch. 77, § 211; repealed by Laws 2003, ch. 48. ANNOTATIONS Repeals. — Laws 2003, ch. 48 repealed 32A-10-6 NMSA 1978, as enacted by Laws 1973, ch. 238, § 6, when the Interstate Compact for Juveniles was enacted into law by the thirty-fifth state. As of September 14, 2009, forty states had enacted the Interstate Compact for Juveniles into law. For provisions of the former section, see the 2011 NMSA 1978 on NMOneSource.com. 32A-10-7. Repealed. History: 1953 Comp., § 13-16-7, enacted by Laws 1973, ch. 238, § 7; recompiled as 1978 Comp., § 32A-10-7 by Laws 1993, ch. 77, § 211; repealed by Laws 2003, ch. 48. ANNOTATIONS Repeals. — Laws 2003, ch. 48 repealed 32A-10-7 NMSA 1978, as enacted by Laws 1973, ch. 238, § 7, when the Interstate Compact for Juveniles was enacted into law by the thirty-fifth state. As of September 14, 2009, forty states had enacted the Interstate Compact for Juveniles into law. For provisions of the former section, see the 2011 NMSA 1978 on NMOneSource.com. 32A-10-8. Repealed. History: 1953 Comp., § 13-16-8, enacted by Laws 1973, ch. 238, § 8; recompiled as 1978 Comp., § 32A-10-8 by Laws 1993, ch. 77, § 211; repealed by Laws 2003, ch. 48. ANNOTATIONS Repeals. — Laws 2003, ch. 48 repealed 32A-10-8 NMSA 1978, as enacted by Laws 1973, ch. 238, § 8, when the Interstate Compact for Juveniles was enacted into law by the thirty-fifth state. As of September 14, 2009, forty states had enacted the Interstate Compact for Juveniles into law. For provisions of the former section, see the 2011 NMSA 1978 on NMOneSource.com. 32A-10-9. Interstate Compact for Juveniles. The Interstate Compact for Juveniles is enacted into law and entered into on behalf of New Mexico with any and all other states legally joining therein in a form substantially as follows: THE INTERSTATE COMPACT FOR JUVENILES ARTICLE I - Purpose A. The compacting states to this interstate compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents and status offenders who are on probation or parole and who have absconded, escaped or run away from supervision and control and in doing so have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence. The compacting states also recognize that congress, by enacting the Crime Control Act, 4 U.S.C. Section 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime. B. It is the purpose of this compact, through means of joint and cooperative action among the compacting states, to: (1) ensure that the adjudicated juveniles and status offenders subject to this compact are provided adequate supervision and services in the receiving state as ordered by the adjudicating judge or parole authority in the sending state; (2) ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected; (3) return juveniles who have run away, absconded or escaped from supervision or control or have been accused of an offense to the state requesting their return; (4) make contracts for the cooperative institutionalization in public facilities in member states for delinquent youth needing special services; (5) provide for the effective tracking and supervision of juveniles; (6) equitably allocate the costs, benefits and obligations of the compacting states; (7) establish procedures to manage the movement between states of juvenile offenders released to the community under the jurisdiction of courts, juvenile departments or any other criminal or juvenile justice agency that has jurisdiction over juvenile offenders; (8) ensure immediate notice to jurisdictions where defined offenders are authorized to travel or to relocate across state lines; (9) establish procedures to resolve pending charges against juvenile offenders prior to transfer or release to the community under the terms of this compact; (10) establish a system of uniform data collection on information pertaining to juveniles subject to this compact that allows access by authorized juvenile justice and criminal justice officials, and regular reporting of compact activities to heads of state executive, judicial and legislative branches and juvenile and criminal justice administrators; (11) monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance; (12) coordinate training and education regarding the regulation of interstate movement of juveniles for officials involved in that activity; and (13) coordinate the implementation and operation of the compact with the Interstate Compact on the Placement of Children [32A 11-1 NMSA 1978], the Interstate Compact for Adult Offender Supervision [31-5-20 NMSA 1978] and other compacts affecting juveniles, particularly in those cases where concurrent or overlapping supervision issues arise. C. It is the policy of the compacting states that the activities conducted by the interstate commission created herein are the formation of public policies and therefore are public business. Furthermore, the compacting states shall cooperate and observe their individual and collective duties and responsibilities for the prompt return and acceptance of juveniles subject to the provisions of this compact. D. The provisions of this compact shall be reasonably and liberally construed to accomplish the purposes and policies of the compact. ARTICLE II - Definitions As used in this compact, unless the context clearly requires a different construction: A. "bylaws" means those bylaws established by the interstate commission for its governance or for directing or controlling its actions or conduct; B. "commissioner" means the voting representative of each compacting state appointed pursuant to Article III of this compact; C. "compact administrator" means the individual in each compacting state appointed pursuant to the terms of this compact, responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the interstate commission and policies adopted by the state council under this compact; D. "compacting state" means any state that has enacted the enabling legislation for this compact; E. "court" means any court having jurisdiction over delinquent, neglected or dependent children; F. "deputy compact administrator" means the individual, if any, in each compacting state appointed to act on behalf of a compact administrator pursuant to the terms of this compact and who is responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the interstate commission and the policies adopted by the state council under this compact; G. "interstate commission" means the interstate commission for juveniles created by Article III of this compact; H. "juvenile" means a person defined as a juvenile in any member state or by the rules of the interstate commission, including: (1) an accused delinquent, who is a person charged with an offense that, if committed by an adult, would be a criminal offense; (2) an adjudicated delinquent, who is a person found to have committed an offense that, if committed by an adult, would be a criminal offense; (3) an accused status offender, who is a person charged with an offense that would not be a criminal offense if committed by an adult; (4) an adjudicated status offender, who is a person found to have committed an offense that would not be a criminal offense if committed by an adult; and (5) a non-offender, who is a person in need of supervision who has not been accused or adjudicated as a status offender or delinquent; I. "noncompacting state" means any state that has not enacted the enabling legislation for this compact; J. "probation or parole" means any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states; K. "rule" means a written statement by the interstate commission promulgated pursuant to Article VI of this compact that is of general applicability, that implements, interprets or prescribes a policy or provision of the compact or an organizational, procedural or practice requirement of the commission, and that has the force and effect of statutory law in a compacting state. "Rule" includes the amendment, repeal or suspension of an existing rule; and L. "state" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa and the Northern Marianas Islands. ARTICLE III - Interstate Commission for Juveniles A. The compacting states hereby create the "interstate commission for juveniles". The commission shall be a body corporate and joint agency of the compacting states. The commission shall have all the responsibilities, powers and duties set forth herein, and additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact. B. The interstate commission shall consist of commissioners appointed by the appropriate appointing authority in each state pursuant to the rules and requirements of each compacting state and in consultation with the "state council for interstate juvenile supervision" created hereunder. The commissioner shall be the compact administrator, deputy compact administrator or designee from that state who shall serve on the interstate commission in such capacity under or pursuant to the applicable law of the compacting state. C. In addition to the commissioners who are the voting representatives of each state, the interstate commission shall include individuals who are not commissioners, but who are members of interested organizations. Noncommissioner members shall include a member of the national organizations of governors, legislators, state chief justices, attorneys general, a member of the interstate compact for adult offender supervision, a member of the interstate compact for the placement of children, juvenile justice and juvenile corrections officials and crime victims. All noncommissioner members of the interstate commission shall be ex-officio, nonvoting members. The interstate commission may provide in its bylaws for additional ex-officio, nonvoting members, including members of other national organizations, in such numbers as shall be determined by the commission. D. Each compacting state represented at any meeting of the interstate commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the interstate commission. E. The interstate commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public. F. The interstate commission shall establish an executive committee, which shall include commission officers, members and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the interstate commission during periods when the interstate commission is not in session, with the exception of rulemaking and amendments to the compact. The executive committee shall oversee the day-to-day activities managed by an executive director and interstate commission staff, administer enforcement and compliance with the provisions of the compact, bylaws and rules, and perform other duties as directed by the interstate commission or set forth in the bylaws. G. Each member of the interstate commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the interstate commission. A member shall vote in person and shall not delegate a vote to another compacting state. However, a commissioner, in consultation with the state council, shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specified meeting. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication. H. The interstate commission's bylaws shall establish conditions and procedures under which the interstate commission shall make its information and official records available to the public for inspection or copying. The interstate commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests. I. Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The interstate commission and any of its committees may close a meeting to the public when a determination is made by a two-thirds' vote that an open meeting would be likely to: (1) relate solely to the interstate commission's internal personnel practices and procedures; (2) disclose matters specifically exempted from disclosure by statute; (3) disclose trade secrets or commercial or financial information that is privileged or confidential; (4) involve accusing a person of a crime or formally censuring a person; (5) disclose information of a personal nature when disclosure would constitute a clearly unwarranted invasion of personal privacy; (6) disclose investigative records compiled for law enforcement purposes; (7) disclose information contained in or related to examination reports, operating reports or condition reports prepared by, prepared on behalf of or prepared for the use of the interstate commission with respect to a regulated person or entity for the purpose of regulation or supervision of the person or entity; (8) disclose information, the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or (9) specifically relate to the interstate commission's issuance of a subpoena or its participation in a civil action or other legal proceeding. J. For every meeting closed pursuant to the provisions of Subsection I of this article, the interstate commission's legal counsel shall publicly certify that, in the legal counsel's opinion, the meeting may be closed to the public and shall reference each relevant provision set forth in Subsection I of this article. The interstate commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken and the reasons therefore, including a description of each of the views expressed on an item and the record of a roll call vote. All documents considered in connection with an action shall be identified in the minutes. K. The interstate commission shall collect standardized data concerning the interstate movement of juveniles, as directed through its rules, which shall specify the data to be collected, the means of collection, data exchange and reporting requirements. The methods of data collection, data exchange and reporting shall, insofar as it is reasonably possible, conform to up-to-date technology and coordinate with information functions used by the appropriate repository of records. ARTICLE IV - Powers and Duties of the Interstate Commission The interstate commission shall: A. provide for dispute resolution among compacting states; B. promulgate rules to effect the purposes and obligations enumerated in this compact, which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact; C. oversee, supervise and coordinate the interstate movement of juveniles subject to the terms of this compact and any bylaws adopted and rules promulgated by the interstate commission; D. enforce compliance with compact provisions, the rules promulgated by the interstate commission and bylaws, using all necessary and proper means, including the use of judicial process; E. establish and maintain offices that shall be located within one or more of the compacting states; F. purchase and maintain insurance and bonds; G. borrow, accept, hire or contract for personnel services; H. establish and appoint committees and hire staff that it deems necessary for carrying out its functions, including an executive committee that shall have the power to act on behalf of the interstate commission in carrying out its powers and duties; I. elect or appoint officers, attorneys, employees, agents or consultants and to fix their compensation, define their duties and determine their qualifications; and to establish the interstate commission's personnel policies and programs relating to conflicts of interest, rates of compensation and qualifications of personnel; J. accept any and all donations and grants of money, equipment, supplies, materials and services and to receive, utilize and dispose of same; K. lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal or mixed; L. sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed; M. establish a budget and make expenditures and levy dues as provided in Article VIII of this compact; N. sue and be sued; O. adopt a seal and bylaws governing the management and operation of the interstate commission; P. perform functions as may be necessary or appropriate to achieve the purposes of this compact; Q. report annually to the legislatures, governors, judiciary and state councils of the compacting states concerning the activities of the interstate commission during the preceding year. The reports shall also include recommendations that may have been adopted by the interstate commission; R. coordinate education, training and public awareness regarding the interstate movement of juveniles for officials involved in that activity; S. establish uniform standards for the reporting, collecting and exchanging of data; and T. maintain its corporate books and records in accordance with the bylaws. ARTICLE V - Organization and Operation of the Interstate Commission A. The interstate commission shall, by a majority of the members present and voting, within twelve months after the first interstate commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including: (1) establishing the fiscal year of the interstate commission; (2) establishing an executive committee and other committees as may be necessary; (3) providing for the establishment of committees governing general or specific delegation of any authority or function of the interstate commission; (4) providing reasonable procedures for calling and conducting meetings of the interstate commission and ensuring reasonable notice of those meetings; (5) establishing the titles and responsibilities of the officers of the interstate commission; (6) providing a mechanism for concluding the operations of the interstate commission and the return of surplus funds that may exist upon the termination of the compact after the payment and reserving of all of its debts and obligations; (7) providing "start-up" rules for initial administration of the compact; and (8) establishing standards and procedures for compliance and technical assistance in carrying out the compact. B. The interstate commission shall, by a majority of the members, elect annually from among its members a chairperson and a vice chairperson, each of whom shall have such authority and duties as may be specified in the bylaws. The chairperson or, in the chairperson's absence or disability, the vice chairperson shall preside at all meetings of the interstate commission. The officers elected shall serve without compensation or remuneration from the interstate commission; provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the interstate commission. C. The interstate commission, through its executive committee, shall appoint or retain an executive director, upon terms and conditions and for compensation as the interstate commission may deem appropriate. The executive director shall serve as secretary to the interstate commission, shall not be a member and shall hire and supervise other staff as may be authorized by the interstate commission. D. The commission's executive director and employees shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to any actual or alleged act, error or omission that occurred within the scope of interstate commission employment, or that the person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities; provided that the person shall not be protected from suit or liability for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of the person. E. The liability of any commissioner, or the employee or agent of a commissioner, acting within the scope of the person's employment or duties for acts, errors or omissions occurring within the person's state may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees and agents. Nothing in this subsection shall be construed to protect the person from suit or liability for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of the person. F. The interstate commission shall defend the executive director or the employees or representatives of the interstate commission and, subject to the approval of the attorney general of the state represented by a commissioner of a compacting state, shall defend the commissioner or the commissioner's representatives or employees in a civil action seeking to impose liability arising out of an actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities; provided that the actual or alleged act, error or omission did not result from intentional or willful and wanton misconduct on the part of the person. G. The interstate commission shall indemnify and hold the commissioner of a compacting state, the commissioner's representatives or employees or the interstate commission's representatives or employees, harmless in the amount of a settlement or judgment obtained against a person arising out of an actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that the person had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities; provided that the actual or alleged act, error or omission did not result from intentional or willful and wanton misconduct on the part of the person. ARTICLE VI - Rulemaking Functions of the Interstate Commission A. The interstate commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact. B. Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Rulemaking shall substantially conform to the principles of the "Model State Administrative Procedures Act", 1981 Act, Uniform Laws Annotated, Vol. 15, p.1 (2000), or other administrative procedures act, as the interstate commission deems appropriate, consistent with due process requirements under the United States constitution as now or hereafter interpreted by the United States supreme court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the interstate commission. C. When promulgating a rule, the interstate commission shall, at a minimum: (1) publish the proposed rule's entire text stating the reasons for that proposed rule; (2) allow and invite persons to submit written data, facts, opinions and arguments, which information shall be added to the record and be made publicly available; (3) provide an opportunity for an informal hearing if petitioned by ten or more persons; and (4) promulgate a final rule and its effective date, if appropriate, based on input from state or local officials or interested parties. D. Allow, not later than sixty days after a rule is promulgated, an interested person to file a petition in the United States district court for the District of Columbia or in the federal district court where the interstate commission's principal office is located for judicial review of the rule. If the court finds that the interstate commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the Model State Administrative Procedures Act. E. If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause the rule to have no further force and effect in any compacting state. F. The existing rules governing the operation of the interstate compact on juveniles superseded by this act shall be null and void twelve months after the first meeting of the interstate commission created hereunder. G. Upon determination by the interstate commission that a state of emergency exists, it may promulgate an emergency rule that shall become effective immediately upon adoption, provided that the usual rule making procedures provided hereunder shall be retroactively applied to the rule as soon as reasonably possible, but no later than ninety days after the effective date of the emergency rule. ARTICLE VII - Oversight, Enforcement and Dispute Resolution by The Interstate Commission A. The interstate commission shall oversee the administration and operations of the interstate movement of juveniles subject to this compact in the compacting states and shall monitor activities being administered in noncompacting states that may significantly affect compacting states. B. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall be received by all the judges, public officers, commissions and departments of the state government as evidence of the authorized statute and administrative rules. All courts shall take judicial notice of the compact and the rules. In a judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact that may affect the powers, responsibilities or actions of the interstate commission, it shall be entitled to receive all service of process in the proceeding and shall have standing to intervene in the proceeding for all purposes. C. The compacting states shall report to the interstate commission on all issues and activities necessary for the administration of the compact as well as issues and activities pertaining to compliance with the provisions of the compact and its bylaws and rules. D. The interstate commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues that are subject to the compact and that may arise among compacting states and between compacting and noncompacting states. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes between the compacting states. E. The interstate commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact using any or all means set forth in Article XI of this compact. ARTICLE VIII - Finance A. The interstate commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities. B. The interstate commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the interstate commission and its staff, which must be in a total amount sufficient to cover the interstate commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the interstate commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state and shall promulgate a rule binding upon all compacting states that governs the assessment. C. The interstate commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same; nor shall the interstate commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state. D. The interstate commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the interstate commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the interstate commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the interstate commission. ARTICLE IX - The State Council Each member state shall create a "state council for interstate juvenile supervision". While each state may determine the membership of its own state council, its membership must include at least one representative from the legislative, judicial and executive branches of government, victims groups and the compact administrator, deputy compact administrator or designee. Each compacting state retains the right to determine the qualifications of the compact administrator or deputy compact administrator. Each state council will advise and may exercise oversight and advocacy concerning that state's participation in interstate commission activities and other duties as may be determined by that state, including development of policy concerning operations and procedures of the compact within that state. ARTICLE X - Compacting States, Effective Date and Amendment A. Any state is eligible to become a compacting state. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five of the states. The initial effective date shall be the later of July 1, 2004 or upon enactment into law by the thirty-fifth jurisdiction. Thereafter, it shall become effective and binding as to any other compacting state upon enactment of the compact into law by that state. The governors of noncompacting states or their designees shall be invited to participate in the activities of the interstate commission on a nonvoting basis prior to adoption of the compact by all states and territories of the United States. B. The interstate commission may propose amendments to the compact for enactment by the compacting states. An amendment shall not become effective and binding upon the interstate commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states. ARTICLE XI - Withdrawal, Default, Termination and Judicial Enforcement A. Once effective, the compact shall continue in force and remain binding upon each and every compacting state; provided that a compacting state may withdraw from the compact by specifically repealing the statute that enacted the compact into law. The effective date of withdrawal is the effective date of the repeal. The withdrawing state shall immediately notify the chairperson of the interstate commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The interstate commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty days of its receipt thereof. The withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal. Reinstatement following withdrawal of a compacting state shall occur upon the withdrawing state reenacting the compact or upon a later date as determined by the interstate commission. B. If the interstate commission determines that a compacting state has at any time defaulted in the performance of its obligations or responsibilities under this compact, or the bylaws or duly promulgated rules, the interstate commission may impose any or all of the following penalties: (1) remedial training and technical assistance as directed by the interstate commission; (2) alternative dispute resolution; (3) fines, fees and costs in amounts as are deemed to be reasonable as fixed by the interstate commission; and (4) suspension or termination of membership in the compact, which shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted and the interstate commission has therefore determined that the offending state is in default. Immediate notice of suspension shall be given by the interstate commission to the governor, the chief justice or the chief judicial officer of the state, the majority and minority leaders of the defaulting state's legislature and the state council. C. The grounds for default include failure of a compacting state to perform obligations or responsibilities imposed upon it by this compact, the bylaws or duly promulgated rules and any other grounds designated in commission bylaws and rules. The interstate commission shall immediately notify the defaulting state in writing of the penalty imposed by the interstate commission and of the default pending a cure of the default. The commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the interstate commission, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges and benefits conferred by this compact shall be terminated from the effective date of termination. D. Within sixty days of the effective date of termination of a defaulting state, the interstate commission shall notify the governor, the chief justice or chief judicial officer of the state, the majority and minority leaders of the defaulting state's legislature and the state council of the termination. E. The defaulting state is responsible for all assessments, obligations and liabilities incurred through the effective date of termination, including any obligations that extend beyond the effective date of termination. F. The interstate commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the interstate commission and the defaulting state. G. Reinstatement following termination of a compacting state requires both a reenactment of the compact by the defaulting state and the approval of the interstate commission pursuant to the rules. H. The interstate commission may, by majority vote of the members, initiate legal action in the United States district court for the District of Columbia or, at the discretion of the interstate commission, in the federal district where the interstate commission has its offices, to enforce compliance with the provisions of the compact, its duly promulgated rules and bylaws, against any compacting state in default. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of the litigation, including reasonable attorneys fees. I. The compact dissolves effective upon the date of the withdrawal or default of the compacting state, which reduces membership in the compact to one compacting state. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the interstate commission shall be concluded and any surplus funds shall be distributed in accordance with the bylaws. ARTICLE XII - Severability and Construction A. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable. B. The provisions of this compact shall be liberally construed to effectuate its purposes. ARTICLE XIII - Binding Effect of Compact and Other Laws A. Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact. All compacting states' laws other than state constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict. B. All lawful actions of the interstate commission, including all rules and bylaws promulgated by the interstate commission, are binding upon the compacting states. C. All agreements between the interstate commission and the compacting states are binding in accordance with their terms. D. Upon the request of a party to a conflict over meaning or interpretation of interstate commission actions, and upon a majority vote of the compacting states, the interstate commission may issue advisory opinions regarding the meaning or interpretation. E. In the event a provision of this compact exceeds the constitutional limits imposed on the legislature of a compacting state, the obligations, duties, powers or jurisdiction sought to be conferred by the provision upon the interstate commission shall be ineffective and the obligations, duties, powers or jurisdiction shall remain in the compacting state and shall be exercised by the agency to which the obligations, duties, powers or jurisdiction are delegated by law in effect at the time this compact becomes effective. ARTICLE XIV - Repeal Sections 32A-10-1 through 32A-10-8 NMSA 1978 (being Laws 1973, Chapter 238, Sections 1 through 8, as amended) are repealed. History: Laws 2003, ch. 48, § 1. ANNOTATIONS Compiler's notes. — Laws 2003, ch. 48, art. X, provided that this compact became effective the later of July 1, 2004, or enactment of the compact into law by the thirty-fifth jurisdiction. As of September 14, 2009, forty states had enacted the Interstate Compact for Juveniles into law. ARTICLE 11 Interstate Compact on Placement of Children ANNOTATIONS Compiler's notes. — Sections 32A-11-1 to 32A-11-7 NMSA 1978 were originally recompiled from 32-4-1 to 32-4-7 NMSA 1978 to 32-11-1 to 32-11-7 NMSA 1978 by Laws 1993, ch. 77, § 212, and were subsequently recompiled at this location in 1993 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been retained whenever possible. 32A-11-1. Interstate compact. The Interstate Compact on the Placement of Children is hereby enacted into law and entered into with all other jurisdictions legally joining therein in form substantially as follows: INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN Article 1 - Purpose and Policy It is the purpose and policy of the party states to cooperate with each other in the interstate placement of children to the end that: A. each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care; B. the appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with requirements for the protection of the child; C. the proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made; and D. appropriate jurisdictional arrangements for the care of children will be promoted. Article 2 - Definitions As used in this compact: A. "child" means a person who by reason of minority is legally subject to parental, guardianship or similar control; B. "sending agency" means a party state, officer or employee thereof; a political subdivision of a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, charitable agency or other entity which sends, brings or causes to be sent or brought any child to another party state; C. "receiving state" means the state to which a child is sent, brought or caused to be sent or brought, whether by public authorities or private persons or agencies, and whether for placement with state or local public authorities or for placement with private agencies or persons; and D. "placement" means the arrangement for the care of the child in a family, free or boarding home or in a child-placement agency or institution but does not include any institution caring for the mentally ill, mentally defective or epileptic or any institution primarily educational in character, or any hospital or other medical facility. Article 3 - Conditions for Placement A. No sending agency shall send, bring or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein. B. Prior to sending, bringing or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring or place the child in the receiving state. The notice shall contain: (1) the name, date and place of birth of the child; (2) the identity and address or addresses of the parents or legal guardian; (3) the name and address of the person, agency or institution to or with which the sending agency proposes to send, bring or place the child; and (4) a full statement of the reasons for such proposed action and evidence of the authority pursuant to which the placement is proposed to be made. C. Any public officer or agency in a receiving state which is in receipt of a notice pursuant to Paragraph B of this article may request of the sending agency, or any other appropriate officer or agency of or in the sending agency's state, and shall be entitled to receive therefrom, such supporting or additional information as it may deem necessary under the circumstances to carry out the purpose and policy of this compact. D. The child shall not be sent, brought or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child. Article 4 - Penalty for Illegal Placement The sending, bringing or causing to be sent or brought into any receiving state of a child in violation of the terms of this compact shall constitute a violation of the laws respecting the placement of children of both the state in which the sending agency is located or from which it sends or brings the child and of the receiving state. Such violation may be punished or subjected to penalty in either jurisdiction in accordance with its laws. In addition to liability for any such punishment or penalty, any such violation shall constitute full and sufficient grounds for the suspension or revocation of any license, permit or other legal authorization held by the sending agency which empowers or allows it to place or care for children. Article 5 - Retention of Jurisdiction A. The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have had if the child had remained in the sending agency's state, until the child is adopted, reaches majority, becomes self-supporting or is discharged with the concurrence of the appropriate authority in the receiving state. Such jurisdiction shall also include the power to effect or cause the return of the child or his transfer to another location and custody pursuant to law. The sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement. Nothing contained herein shall defeat a claim of jurisdiction by a receiving state sufficient to deal with an act of delinquency or crime committed therein. B. When the sending agency is a public agency, it may enter into an agreement with an authorized public or private agency in the receiving state providing for the performance of one or more services in respect of such case by the latter as agency for the sending agency. C. Nothing in this compact shall be construed to prevent a private charitable agency authorized to place children in the receiving state from performing services or acting as agent in that state for a private charitable agency of the sending state; nor to prevent the agency in the receiving state from discharging, on behalf of the sending agency, the financial responsibility for the support and maintenance of a child who has been placed, without relieving the responsibility set forth in Paragraph A of Article 5 hereof. Article 6 - Institutional Care of Delinquent Children A child adjudicated delinquent may be placed in an institution in another party jurisdiction pursuant to this compact but no such placement shall be made unless the child is given a court hearing after notice to the parent or guardian with opportunity to be heard, prior to his being sent to such other party jurisdiction for institutional care, and the court finds that: A. equivalent facilities for the child are not available in the sending agency's jurisdiction; and B. institutional care in the other jurisdiction is in the best interest of the child and will not produce undue hardship. Article 7 - Compact Administrator The executive head of each jurisdiction party to this compact shall designate an officer who shall be general coordinator of activities under this compact in his jurisdiction and who, acting jointly with like officers of other party jurisdictions, shall have power to promulgate rules and regulations to carry out more effectively the terms and provisions of the compact. Article 8 - Limitations This compact shall not apply to: A. the sending or bringing of a child into a receiving state by his parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or non-agency guardian in the receiving state; or B. any placement, sending or bringing of a child into a receiving state pursuant to any other interstate compact to which both the state from which the child is sent or brought and the receiving state are party, or to any other agreement between said states which has the force of law. Article 9 - Enactment and Withdrawal This compact shall be open to joinder by any state, territory or possession of the United States, the District of Columbia, the commonwealth of Puerto Rico, and with the consent of congress, the government of Canada or any province thereof. It shall become effective with respect to any such jurisdiction when such jurisdiction has entered the same into law. Withdrawal from this compact shall be by the enactment of a statute repealing the same, but shall not take effect until two years after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the governor of each other party jurisdiction. Withdrawal of a party state shall not affect the rights, duties and obligations under this compact of any sending agency therein with respect to a placement made prior to the effective date of withdrawal. Article 10 - Construction and Severability The provisions of this compact shall be liberally construed to effectuate the purposes thereof. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any party state or of the United States, or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state party thereto, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. History: 1953 Comp., § 13-16A-1, enacted by Laws 1977, ch. 151, § 1; recompiled as 1978 Comp., § 32A-11-1 by Laws 1993, ch. 77, § 212. 32A-11-1. Interstate compact. (Contingent effective date. See note below.) The Revised Interstate Compact on the Placement of Children is hereby enacted into law and entered into with all other jurisdictions legally joining therein in form substantially as follows: REVISED INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN ARTICLE 1. PURPOSE The purpose of the Revised Interstate Compact for the Placement of Children is to: A. provide a process through which children subject to this compact are placed in safe and suitable homes in a timely manner; B. facilitate ongoing supervision of a placement, the delivery of services and communication between the states; C. provide operating procedures that will ensure that children are placed in safe and suitable homes in a timely manner; D. provide for the promulgation and enforcement of administrative rules implementing the provisions of this compact and regulating the covered activities of the member states; E. provide for uniform data collection and information sharing between member states under this compact; F. promote coordination between this compact, the Interstate Compact for Juveniles [32A-10-9 NMSA 1978], the Interstate Compact on Adoption and Medical Assistance [40-7B-1 NMSA 1978] and other compacts affecting the placement of and which provide services to children otherwise subject to this compact; G. provide for a state's continuing legal jurisdiction and responsibility for placement and care of a child that it would have had if the placement were intrastate; and H. provide for the promulgation of guidelines, in collaboration with Indian nations, tribes and pueblos, for interstate cases involving Indian children as is or may be permitted by federal law. ARTICLE 2. DEFINITIONS As used in this compact: A. "approved placement" means the public child placing agency in the receiving state has determined that the placement is both safe and suitable for the child; B. "assessment" means an evaluation of a prospective placement by a public child placing agency in the receiving state to determine if the placement meets the individualized needs of the child, including but not limited to the child's safety and stability, health and well-being and mental, emotional and physical development. An assessment is only applicable to a placement by a public child placing agency; C. "child" means an individual who has not attained the age of eighteen; D. "certification" means to attest, declare or swear to before a judge or notary public; E. "default" means the failure of a member state to perform the obligations or responsibilities imposed upon it by this compact, the bylaws or rules of the interstate commission; F. "home study" means an evaluation of a home environment conducted in accordance with the applicable requirements of the state in which the home is located, and documents the preparation and the suitability of the placement resource for the placement of a child in accordance with the laws and requirements of the state in which the home is located; G. "Indian nations, tribes and pueblos" means any Indian tribe, band, nation, pueblo or other organized group or community of Indians recognized as eligible for services provided to Indians by the United States secretary of the interior because of their status as Indians, including any Alaskan native village as defined in section 3 (c) of the Alaska Native Claims Settlement Act at 43 U.S.C. Section 1602(c); H. "interstate commission for the placement of children" means the commission that is created under Article 8 of this compact and that is generally referred to as the "interstate commission"; I. "jurisdiction" means the power and authority of a court to hear and decide matters; J. "legal risk placement" or "legal risk adoption" means a placement made preliminary to an adoption where the prospective adoptive parents acknowledge in writing that a child can be ordered returned to the sending state or the birth mother's state of residence, if different from the sending state, and a final decree of adoption shall not be entered in any jurisdiction until all required consents are obtained or are dispensed with in accordance with applicable law; K. "member state" means a state that has enacted this compact; L. "noncustodial parent" means a person who, at the time of the commencement of court proceedings in the sending state, does not have sole legal custody of the child or has joint legal custody of a child and who is not the subject of allegations or findings of child abuse or neglect; M. "nonmember state" means a state that has not enacted this compact; N. "notice of residential placement" means information regarding a placement into a residential facility provided to the receiving state, including the name, date and place of birth of the child, the identity and address of the parent or legal guardian, evidence of authority to make the placement, and the name and address of the facility in which the child will be placed; "notice of residential placement" also includes information regarding a discharge and any unauthorized absence from the facility; O. "placement" means the act by a public or private child placing agency intended to arrange for the care or custody of a child in another state; P. "private child placing agency" means any private corporation, agency, foundation, institution or charitable organization, or any private person or attorney that facilitates, causes or is involved in the placement of a child from one state to another and that is not an instrumentality of the state or acting under color of state law; Q. "provisional placement" means a determination made by the public child placing agency in the receiving state that the proposed placement is safe and suitable and, to the extent allowable, the receiving state has temporarily waived its standards or requirements otherwise applicable to prospective foster or adoptive parents so as to not delay the placement. Completion of the receiving state requirements regarding training for prospective foster or adoptive parents shall not delay an otherwise safe and suitable placement; R. "public child placing agency" means any government child welfare agency or child protection agency or a private entity under contract with such an agency, regardless of whether they act on behalf of a state, county, municipality or other governmental unit and which facilitates, causes or is involved in the placement of a child from one state to another; S. "receiving state" means the state to which a child is sent, brought or caused to be sent or brought; T. "relative" means someone who is related to the child as a parent, step-parent, sibling by half or whole blood or by adoption, grandparent, aunt, uncle or first cousin or a non-relative with such significant ties to the child that they may be regarded as relatives as determined by the court in the sending state; U. "residential facility" means a facility providing a level of care that is sufficient to substitute for parental responsibility or foster care, and is beyond what is needed for assessment or treatment of an acute condition. For purposes of the compact, "residential facilities" do not include institutions primarily educational in character, hospitals or other medical facilities; V. "rule" means a written directive, mandate, standard or principle issued by the interstate commission promulgated pursuant to Article 9 of this compact that is of general applicability and that implements, interprets or prescribes a policy or provision of the compact; "rule" has the force and effect of an administrative rule in a member state, and includes the amendment, repeal or suspension of an existing rule; W. "sending state" means the state from which the placement of a child is initiated; X. "service member's permanent duty station" means the military installation where an active duty armed services member is currently assigned and is physically located under competent orders that do not specify the duty as temporary; Y. "service member's state of legal residence" means the state in which the active duty armed services member is considered a resident for tax and voting purposes; Z. "state" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Northern Mariana Islands and any other territory of the United States; AA. "state court" means a judicial body of a state that is vested by law with responsibility for adjudicating cases involving abuse, neglect, deprivation, delinquency or status offenses of individuals who have not attained the age of eighteen; and BB. "supervision" means monitoring provided by the receiving state once a child has been placed in a receiving state pursuant to this compact. ARTICLE 3. APPLICABILITY A. Except as otherwise provided in Section B of this article, this compact shall apply to: (1) the interstate placement of a child subject to ongoing court jurisdiction in the sending state, due to allegations or findings that the child has been abused, neglected or deprived as defined by the laws of the sending state; provided however, that the placement of such a child into a residential facility shall only require notice of residential placement to the receiving state prior to placement; (2) the interstate placement of a child adjudicated delinquent or unmanageable based on the laws of the sending state and subject to ongoing court jurisdiction of the sending state if: (a) the child is being placed in a residential facility in another member state and is not covered under another compact; or (b) the child is being placed in another member state and the determination of safety and suitability of the placement and services required is not provided through another compact; and (3) the interstate placement of any child by a public child placing agency or private child placing agency as defined in this compact as a preliminary step to a possible adoption. B. The provisions of this compact shall not apply to: (1) the interstate placement of a child in a custody proceeding in which a public child placing agency is not a party; provided that the placement is not intended to effectuate an adoption; (2) the interstate placement of a child with a non-relative in a receiving state by a parent with the legal authority to make such a placement; provided, however, that the placement is not intended to effectuate an adoption; (3) the interstate placement of a child by one relative with the lawful authority to make such a placement directly with a relative in a receiving state; (4) the placement of a child, not subject to Section A of this article into a residential facility by the child's parent; (5) the placement of a child with a noncustodial parent; provided that: (a) the noncustodial parent proves to the satisfaction of a court in the sending state a substantial relationship with the child; (b) the court in the sending state makes a written finding that placement with the noncustodial parent is in the best interests of the child; and (c) the court in the sending state dismisses its jurisdiction in interstate placements in which the public child placing agency is a party to the proceeding; (6) a child entering the United States from a foreign country for the purpose of adoption or leaving the United States to go to a foreign country for the purpose of adoption in that country; (7) cases in which a United States citizen child living overseas with the child's family, at least one of whom is in the United States armed services and who is stationed overseas, is removed and placed in a state; and (8) the sending of a child by a public child placing agency or a private child placing agency for a visit as defined by the rules of the interstate commission. C. For purposes of determining the applicability of this compact to the placement of a child with a family in the armed services, the public child placing agency or private child placing agency may choose the state of the service member's permanent duty station or the service member's declared legal residence. D. Nothing in this compact shall be construed to prohibit the concurrent application of the provisions of this compact with other applicable interstate compacts, including the Interstate Compact for Juveniles and the Interstate Compact on Adoption and Medical Assistance. The interstate commission may in cooperation with other interstate compact commissions having responsibility for the interstate movement, placement or transfer of children, promulgate like rules to ensure the coordination of services, timely placement of children and the reduction of unnecessary or duplicative administrative or procedural requirements. ARTICLE 4. JURISDICTION A. Except as provided in Section H of Article 4 and Paragraphs (2) and (3) of Section B of Article 5 concerning private and independent adoptions, and in interstate placements in which the public child placing agency is not a party to a custody proceeding, the sending state shall retain jurisdiction over a child with respect to all matters of custody and disposition of the child that it would have had if the child had remained in the sending state. Such jurisdiction shall also include the power to order the return of the child to the sending state. B. When an issue of child protection or custody is brought before a court in the receiving state, the court shall confer with the court of the sending state to determine the most appropriate forum for adjudication. C. In cases that are before courts and subject to this compact, the taking of testimony for hearings before any judicial officer may occur in person or by telephone, audio-video conference or such other means as approved by the rules of the interstate commission; and judicial officers may communicate with other judicial officers and persons involved in the interstate process as may be permitted by their canons of judicial conduct and any rules promulgated by the interstate commission. D. In accordance with its own laws, the court in the sending state shall have authority to terminate its jurisdiction if: (1) the child is reunified with the parent in the receiving state who is the subject of allegations or findings of abuse or neglect, only with the concurrence of the public child placing agency in the receiving state; (2) the child is adopted; (3) the child reaches the age of majority under the laws of the sending state; (4) the child achieves legal independence pursuant to the laws of the sending state; (5) a guardianship is created by a court in the receiving state with the concurrence of the court in the sending state; (6) an Indian tribe has petitioned for and received jurisdiction from the court in the sending state; or (7) the public child placing agency of the sending state requests termination and has obtained the concurrence of the public child placing agency in the receiving the state. E. When a sending state court terminates its jurisdiction, the receiving state child placing agency shall be notified. F. Nothing in this article shall defeat a claim of jurisdiction by a receiving state court sufficient to deal with an act of truancy, delinquency, crime or behavior involving a child as defined by the laws of the receiving state committed by the child in the receiving state which would be a violation of its laws. G. Nothing in this article shall limit the receiving state's ability to take emergency jurisdiction for the protection of the child. H. The substantive laws of the state in which an adoption will be finalized shall solely govern all issues relating to the adoption of the child and the court in which the adoption proceeding is filed shall have subject matter jurisdiction regarding all substantive issues relating to the adoption, except: (1) when the child is a ward of another court that established jurisdiction over the child prior to the placement; (2) when the child is in the legal custody of a public agency in the sending state; or (3) when a court in the sending state has otherwise appropriately assumed jurisdiction over the child, prior to the submission of the request for approval of placement. I. A final decree of adoption shall not be entered in any jurisdiction until the placement is authorized as an "approved placement" by the public child placing agency in the receiving state. ARTICLE 5. PLACEMENT EVALUATION A. Prior to sending, bringing or causing a child to be sent or brought into a receiving state, the public child placing agency shall provide a written request for assessment to the receiving state. B. For placements by a private child placing agency, a child may be sent or brought, or caused to be sent or brought, into a receiving state, upon receipt and immediate review of the required content in a request for approval of a placement in both the sending and receiving state public child placing agency. The required content to accompany a request for approval shall include all of the following: (1) a request for approval identifying the child, the birth parent(s), the prospective adoptive parent(s) and the supervising agency, signed by the person requesting approval; (2) the appropriate consents or relinquishments signed by the birth parents in accordance with the laws of the sending state, or where permitted by the laws of the state where the adoption will be finalized; (3) certification by a licensed attorney or authorized agent of a private adoption agency that the consent or relinquishment is in compliance with the applicable laws of the sending state, or where permitted by the laws of the state where finalization of the adoption will occur; (4) a home study; and (5) an acknowledgment of legal risk signed by the prospective adoptive parents. C. The sending state and the receiving state may request additional information or documents prior to finalization of an approved placement, but they may not delay travel by the prospective adoptive parents with the child if the required content for approval has been submitted, received and reviewed by the public child placing agency in both the sending state and the receiving state. D. Approval from the public child placing agency in the receiving state for a provisional or approved placement is required as provided for in the rules of the interstate commission. E. The procedures for making and the request for an assessment shall contain all information and be in a form as provided for in the rules of the interstate commission. F. Upon receipt of a request from the public child placing agency of the sending state, the receiving state shall initiate an assessment of the proposed placement to determine its safety and suitability. If the proposed placement is a placement with a relative, the public child placing agency of the sending state may request a determination for a provisional placement. G. The public child placing agency in the receiving state may request from the public child placing agency or the private child placing agency in the sending state, and shall be entitled to receive, supporting or additional information necessary to complete the assessment or approve the placement. H. The public child placing agency in the receiving state shall approve a provisional placement and complete or arrange for the completion of the assessment within the time frames established by the rules of the interstate commission. I. For a placement by a private child placing agency, the sending state shall not impose any additional requirements to complete the home study that are not required by the receiving state, unless the adoption is finalized in the sending state. J. The interstate commission may develop uniform standards for the assessment of the safety and suitability of interstate placements. ARTICLE 6. PLACEMENT AUTHORITY A. Except as otherwise provided in this compact, no child subject to this compact shall be placed into a receiving state until approval for such placement is obtained. B. If the public child placing agency in the receiving state does not approve the proposed placement, then the child shall not be placed. The receiving state shall provide written documentation of any such determination in accordance with the rules promulgated by the interstate commission. Such determination is not subject to judicial review in the sending state. C. If the proposed placement is not approved, any interested party shall have standing to seek an administrative review of the receiving state's determination; (1) the administrative review and any further judicial review associated with the determination shall be conducted in the receiving state pursuant to its applicable administrative procedures act; and (2) if a determination not to approve the placement of the child in the receiving state is overturned upon review, the placement shall be deemed approved; provided, however, that all administrative or judicial remedies have been exhausted or the time for such remedies has passed. ARTICLE 7. PLACING AGENCY RESPONSIBILITY A. For the interstate placement of a child made by a public child placing agency or state court: (1) the public child placing agency in the sending state shall have financial responsibility for: (a) the ongoing support and maintenance for the child during the period of the placement, unless otherwise provided for in the receiving state; and (b) as determined by the public child placing agency in the sending state, services for the child beyond the public services for which the child is eligible in the receiving state; (2) the receiving state shall only have financial responsibility for: (a) any assessment conducted by the receiving state; and (b) supervision conducted by the receiving state at the level necessary to support the placement as agreed upon by the public child placing agencies of the receiving and sending state; and (3) nothing in this provision shall prohibit public child placing agencies in the sending state from entering into agreements with licensed agencies or persons in the receiving state to conduct assessments and provide supervision. B. For the placement of a child by a private child placing agency preliminary to a possible adoption, the private child placing agency shall be: (1) legally responsible for the child during the period of placement as provided for in the law of the sending state until the finalization of the adoption; and (2) financially responsible for the child absent a contractual agreement to the contrary. C. The public child placing agency in the receiving state shall provide timely assessments, as provided for in the rules of the interstate commission. D. The public child placing agency in the receiving state shall provide, or arrange for the provision of, supervision and services for the child, including timely reports, during the period of the placement. E. Nothing in this compact shall be construed as to limit the authority of the public child placing agency in the receiving state from contracting with a licensed agency or person in the receiving state for an assessment or the provision of supervision or services for the child or otherwise authorizing the provision of supervision or services by a licensed agency during the period of placement. F. Each member state shall provide for coordination among its branches of government concerning the state's participation in, and compliance with, the compact and interstate commission activities through the creation of an advisory council or use of an existing body or board. G. Each member state shall establish a central state compact office that shall be responsible for state compliance with the compact and the rules of the interstate commission. H. The public child placing agency in the sending state shall oversee compliance with the provisions of the federal Indian Child Welfare Act (25 U.S.C. Section 1901, et seq.) for placements subject to the provisions of this compact, prior to placement. I. With the consent of the interstate commission, states may enter into limited agreements that facilitate the timely assessment and provision of services and supervision of placements under this compact. ARTICLE 8. INTERSTATE COMMISSION FOR THE PLACEMENT OF CHILDREN The member states hereby establish, by way of this compact, a commission known as the "interstate commission for the placement of children". The activities of the interstate commission are the formation of public policy and are a discretionary state function. The interstate commission shall: A. be a joint commission of the member states and shall have the responsibilities, powers and duties set forth herein, and such additional powers as may be conferred upon it by subsequent concurrent action of the respective legislatures of the member states; B. consist of one commissioner from each member state who shall be appointed by the executive head of the state human services administration with ultimate responsibility for the child welfare program. The appointed commissioner shall have the legal authority to vote on policy related matters governed by this compact binding the state; (1) each member state represented at a meeting of the interstate commission is entitled to one vote; (2) a majority of the member states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the interstate commission; (3) a representative shall not delegate a vote to another member state; and (4) a representative may delegate voting authority to another person from the representative's state for a specified meeting; C. in addition to the commissioners of each member state, the interstate commission shall include persons who are members of interested organizations as defined in the bylaws or rules of the interstate commission. Such members shall be ex officio and shall not be entitled to vote on any matter before the interstate commission; and D. establish an executive committee that shall have the authority to administer the day-to-day operations and administration of the interstate commission. The executive committee shall not have the power to engage in rulemaking. ARTICLE 9. POWERS AND DUTIES OF THE INTERSTATE COMMISSION The interstate commission shall have the following powers: A. to promulgate rules and take all necessary actions to effect the goals, purposes and obligations as enumerated in this compact; B. to provide for dispute resolution among member states; C. to issue, upon request of a member state, advisory opinions concerning the meaning or interpretation of the Revised Interstate Compact on the Placement of Children or the commission's bylaws, rules or actions; D. to enforce compliance with this compact or the bylaws or rules of the interstate commission pursuant to Article 12; E. collect standardized data concerning the interstate placement of children subject to this compact as directed through its rules, which shall specify the data to be collected, the means of collection and data exchange and reporting requirements; F. to establish and maintain offices as may be necessary for the transacting of its business; G. to purchase and maintain insurance and bonds; H. to hire or contract for services of personnel or consultants as necessary to carry out its functions under this compact and establish personnel qualification policies and rates of compensation; I. to establish and appoint committees and officers, including an executive committee as required by Article 10; J. to accept any and all donations and grants of money, equipment, supplies, materials and services, and to receive, utilize and dispose thereof; K. to lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal or mixed; L. to sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed; M. to establish a budget and make expenditures; N. to adopt a seal and bylaws governing the management and operation of the interstate commission; O. to report annually to the legislatures, governors, the judiciary and state advisory councils of the member states concerning the activities of the interstate commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the interstate commission; P. to coordinate and provide education, training and public awareness regarding the interstate movement of children for officials involved in such activity; Q. to maintain books and records in accordance with the bylaws of the interstate commission; and R. to perform such functions as may be necessary or appropriate to achieve the purposes of this compact. ARTICLE 10. ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION A. Bylaws: (1) within twelve months after the first interstate commission meeting, the interstate commission shall adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of this compact; and (2) the interstate commission's bylaws and rules shall establish conditions and procedures under which the interstate commission shall make its information and official records available to the public for inspection or copying. The interstate commission may exempt from disclosure information or official records to the extent they would adversely affect personal privacy rights or proprietary interests. B. Meetings: (1) the interstate commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the member states, shall call additional meetings; (2) public notice shall be given by the interstate commission of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in this compact. The interstate commission and its committees may close a meeting, or portion thereof, where it determines by a two-thirds' vote that an open meeting would be likely to: (a) relate solely to the interstate commission's internal personnel practices and procedures; (b) disclose matters specifically exempted from disclosure by federal law; (c) disclose financial or commercial information that is privileged, proprietary or confidential in nature; (d) involve accusing a person of a crime or formally censuring a person; (e) disclose information of a personal nature when disclosure would constitute a clearly unwarranted invasion of personal privacy or physically endanger one or more persons; (f) disclose investigative records compiled for law enforcement purposes; or (g) specifically relate to the interstate commission's participation in a civil action or other legal proceeding; (3) for a meeting, or portion of a meeting, closed pursuant to this provision, the interstate commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exemption provision. The interstate commission shall keep minutes that shall fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed and the record of a roll call vote. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the interstate commission or by court order; and (4) the bylaws may provide for meetings of the interstate commission to be conducted by telecommunication or other electronic communication. C. Officers and Staff: (1) the interstate commission may, through its executive committee, appoint or retain a staff director for such period, upon such terms and conditions and for such compensation as the interstate commission may deem appropriate. The staff director shall serve as secretary to the interstate commission, but shall not have a vote. The staff director may hire and supervise such other staff as may be authorized by the interstate commission; (2) the interstate commission shall elect, from among its members, a chairperson and a vice chairperson of the executive committee and other necessary officers, each of whom shall have such authority and duties as may be specified in the bylaws. D. Qualified Immunity, Defense and Indemnification: (1) the interstate commission's staff director and its employees shall be immune from suit and liability, either personally or in their official capacity, for a claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to an actual or alleged act, error or omission that occurred, or that a person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities; provided that such person shall not be protected from suit or liability for damage, loss, injury or liability caused by a criminal act or the intentional or willful and wanton misconduct of such person; (a) the liability of the interstate commission's staff director and employees or interstate commission representatives, acting within the scope of the person's employment or duties for acts, errors or omissions occurring within the person's state may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees and agents. The interstate commission is considered to be an instrumentality of the states for the purposes of any such action. Nothing in this subparagraph shall be construed to protect such person from suit or liability for damage, loss, injury or liability caused by a criminal act or the intentional or willful and wanton misconduct of such person; (b) the interstate commission shall defend the staff director and its employees and, subject to the approval of the attorney general or other appropriate legal counsel of the member state, shall defend the commissioner of a member state in a civil action seeking to impose liability arising out of an actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities; provided that the actual or alleged act, error or omission did not result from intentional or willful and wanton misconduct on the part of the person; and (c) to the extent not covered by the state involved, member state or the interstate commission, the representatives or employees of the interstate commission shall be held harmless in the amount of a settlement or judgment, including attorney fees and costs, obtained against such persons arising out of an actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities; provided that the actual or alleged act, error or omission did not result from intentional or willful and wanton misconduct on the part of such persons. ARTICLE 11. RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION A. The interstate commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of this compact. B. Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the "Model State Administrative Procedures Act," 1981 Act, Uniform Laws Annotated, Vol.215, p.1 (2000), or other administrative procedure acts that the interstate commission deems appropriate and consistent with due process requirements under the United States constitution as now or hereafter interpreted by the United States supreme court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the interstate commission. C. When promulgating a rule, the interstate commission shall, at a minimum: (1) publish the proposed rule's entire text stating the reason(s) for that proposed rule; (2) allow and invite any and all persons to submit written data, facts, opinions and arguments, which information shall be added to the record, and be made publicly available; and (3) promulgate a final rule and its effective date, if appropriate, based on input from state or local officials or interested parties. D. Rules promulgated by the interstate commission shall have the force and effect of administrative rules and shall be binding in the compacting states to the extent and in the manner provided for in this compact. E. Not later than sixty days after a rule is promulgated, an interested person may file a petition in the United States district court for the District of Columbia or in the federal district court where the interstate commission's principal office is located for judicial review of such rule. If the court finds that the interstate commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside. F. If a majority of the legislatures of the member states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that such rule shall have no further force and effect in any member state. G. The existing rules governing the operation of the Revised Interstate Compact on the Placement of Children superseded by this act shall be null and void no less than twelve, but no more than twenty-four months after the first meeting of the interstate commission created hereunder, as determined by the members during the first meeting. H. Within the first twelve months of operation, the interstate commission shall promulgate rules addressing the following: (1) transition rules; (2) forms and procedures; (3) time lines; (4) data collection and reporting; (5) rulemaking; (6) visitation; (7) progress reports and supervision; (8) sharing of information and confidentiality; (9) financing of the interstate commission; (10) mediation, arbitration and dispute resolution; (11) education, training and technical assistance; (12) enforcement; and (13) coordination with other interstate compacts. I. Upon determination by a majority of the members of the interstate commission that an emergency exists: (1) the interstate commission may promulgate an emergency rule only if it is required to: (a) protect the children covered by this compact from an imminent threat to their health, safety and well-being; (b) prevent loss of federal or state funds; or (c) meet a deadline for the promulgation of an administrative rule required by federal law; (2) an emergency rule shall become effective immediately upon adoption; provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, but no later than ninety days after the effective date of the emergency rule; and (3) an emergency rule shall be promulgated as provided for in the rules of the interstate commission. ARTICLE 12. OVERSIGHT, DISPUTE RESOLUTION, ENFORCEMENT A. Oversight: (1) the interstate commission shall oversee the administration and operation of this compact; (2) the executive, legislative and judicial branches of state government in each member state shall enforce this compact and the rules of the interstate commission and shall take all actions necessary and appropriate to effectuate this compact's purposes and intent. This compact and its rules shall be binding in the compacting states to the extent and in the manner provided for in this compact; (3) all courts shall take judicial notice of this compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact; and (4) the interstate commission shall be entitled to receive service of process in any action in which the validity of a compact provision or rule is the issue for which a judicial determination has been sought and shall have standing to intervene in any proceedings. Failure to provide service of process to the interstate commission shall render any judgment, order or other determination, however so captioned or classified, void as to the interstate commission, this compact, its bylaws or rules of the interstate commission. B. Dispute Resolution: (1) the interstate commission shall attempt, upon the request of a member state, to resolve disputes that are subject to the compact and that may arise among member states and between member and non-member states; and (2) the interstate commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among compacting states. The costs of such mediation or dispute resolution shall be the responsibility of the parties to the dispute. C. Enforcement: (1) if the interstate commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact, its by laws or rules, the interstate commission may: (a) provide remedial training and specific technical assistance; (b) provide written notice to the defaulting state and other member states, of the nature of the default and the means of curing the default. The interstate commission shall specify the conditions by which the defaulting state must cure its default; (c) by majority vote of the members, initiate against a defaulting member state legal action in the United States district court for the District of Columbia or, at the discretion of the interstate commission, in the federal district where the interstate commission has its principal office, to enforce compliance with the provisions of this compact, its bylaws or rules. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees; or (d) avail itself of any other remedies available under state law or the regulation of official or professional conduct. ARTICLE 13. FINANCING OF THE COMMISSION A. The interstate commission shall pay, or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities. B. The interstate commission may levy on and collect an annual assessment from each member state to cover the cost of the operations and activities of the interstate commission and its staff, which must be in a total amount sufficient to cover the interstate commission's annual budget as approved by its members each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the interstate commission, which shall promulgate a rule binding upon all member states. C. The interstate commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same; nor shall the interstate commission pledge the credit of any of the member states, except by and with the authority of the member states. D. The interstate commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the interstate commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the interstate commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the interstate commission. ARTICLE 14. MEMBER STATES, EFFECTIVE DATE AND AMENDMENT A. Any state is eligible to become a member state. B. This compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five states. The effective date shall be the later of July 1, 2007 or upon enactment of the compact into law by the thirty-fifth state. Thereafter, it shall become effective and binding as to any other member state upon enactment of the compact into law by that state. The executive heads of the state human services administration with ultimate responsibility for the child welfare program of non-member states or their designees shall be invited to participate in the activities of the interstate commission on a non-voting basis prior to adoption of this compact by all states. C. The interstate commission may propose amendments to this compact for enactment by the member states. No amendment shall become effective and binding on the member states unless and until it is enacted into law by unanimous consent of the member states. ARTICLE 15. WITHDRAWAL AND DISSOLUTION A. Withdrawal: (1) once effective, the compact shall continue in force and remain binding upon each and every member state; provided that a member state may withdraw from the compact specifically repealing the statute that enacted the compact into law; (2) withdrawal from this compact shall be by the enactment of a statute repealing the same. The effective date of withdrawal shall be the effective date of the repeal of the statute; (3) the withdrawing state shall immediately notify the president of the interstate commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The interstate commission shall then notify the other member states of the withdrawing state's intent to withdraw; (4) the withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal; and (5) reinstatement following withdrawal of a member state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the members of the interstate commission. B. Dissolution of Compact: (1) this compact shall dissolve effective upon the date of the withdrawal or default of the member state that reduces the membership in the compact to one member state; (2) upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the interstate commission shall be concluded and surplus funds shall be distributed in accordance with the bylaws. ARTICLE 16. SEVERABILITY AND CONSTRUCTION A. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable. B. The provisions of this compact shall be liberally construed to effectuate its purposes. C. Nothing in this compact shall be construed to prohibit the concurrent applicability of other interstate compacts to which the states are members. ARTICLE 17. BINDING EFFECT OF COMPACT AND OTHER LAWS A. Other Laws: (1) nothing herein prevents the enforcement of any other law of a member state that is not inconsistent with this compact. B. Binding Effect of the Compact: (1) all lawful actions of the interstate commission, including all rules and bylaws promulgated by the interstate commission, are binding upon the member states; (2) all agreements between the interstate commission and the member states are binding in accordance with their terms; and (3) in the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any member state, such provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state. ARTICLE 18. INDIAN NATIONS, TRIBES AND PUEBLOS Notwithstanding any other provision in this compact, the interstate commission may promulgate guidelines to permit Indian nations, tribes and pueblos to utilize the compact to achieve any or all of the purposes of the compact as specified in Article 1. The interstate commission shall make reasonable efforts to consult with Indian nations, tribes and pueblos in promulgating guidelines to reflect the diverse circumstances of the various Indian nations, tribes and pueblos. History: 1953 Comp., § 13-16A-1, enacted by Laws 1977, ch. 151, § 1; recompiled as 1978 Comp., § 32A-11-1 by Laws 1993, ch. 77, § 212; repealed and reenacted by Laws 2023, ch. 118, § 1. ANNOTATIONS Repeals and reenactments. — Laws 2023, ch. 118, § 1 repealed former 32A-11-1 NMSA 1978 and enacted a new section. Contingent effective dates. — The effective date of the provisions of Laws 2023, ch. 118, § 1 shall become effective when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children as provided in Section B of Article 14 of the Revised Interstate Compact on the Placement of Children. The secretary of children, youth and families shall notify the governor, the executive director of the New Mexico compilation commission and the director of the legislative council service when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children. 32A-11-2. Financial responsibility; default in compact. Financial responsibility for any child placed pursuant to the provisions of the Interstate Compact on the Placement of Children shall be determined in accordance with the provisions of Article 5 thereof in the first instance. However, in the event of partial or complete default of performance thereunder, the provisions of the New Mexico law fixing responsibility for the support of children also may be invoked. History: 1953 Comp., § 13-16A-2, enacted by Laws 1977, ch. 151, § 2; recompiled as 1978 Comp., § 32A-11-2 by Laws 1993, ch. 77, § 212. 32A-11-2. Financial responsibility; default in compact. (Contingent effective date. See note below.) Financial responsibility for any child placed pursuant to the provisions of the Revised Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978] shall be determined in accordance with the provisions of Article 7 and Article 12 of that compact in the first instance. However, in the event of partial or complete default of performance under that compact, the provisions of the New Mexico law fixing responsibility for the support of children also may be invoked. History: 1953 Comp., § 13-16A-2, enacted by Laws 1977, ch. 151, § 2; recompiled as 1978 Comp., § 32A-11-2 by Laws 1993, ch. 77, § 212; 2023, ch. 118, § 2. ANNOTATIONS The 2023 amendment, added "Revised" preceding "Interstate Compact", after "Article", deleted "5 thereof" and added "7 and Article 12 of that compact", and after "performance", deleted "thereunder" and added "under that compact". Contingent effective dates. — The effective date of the provisions of Laws 2023, ch. 118, § 2 shall become effective when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children as provided in Section B of Article 14 of the Revised Interstate Compact on the Placement of Children. The secretary of children, youth and families shall notify the governor, the executive director of the New Mexico compilation commission and the director of the legislative council service when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children. 32A-11-3. Notices; health and social services department [human services department][health care authority department]. (Contingent repeal. See note.) The "appropriate public authorities" as used in Article 3 of the Interstate Compact on the Placement of Children shall, with reference to New Mexico, mean the health and social services department [human services department][health care authority department], and said department shall receive and act with reference to notices required by said Article 3. History: 1953 Comp., § 13-16A-3, enacted by Laws 1977, ch. 151, § 3; recompiled as 1978 Comp., § 32A-11-3 by Laws 1993, ch. 77, § 212. ANNOTATIONS Bracketed material. — The health and social services department has been abolished, and its functions have been transferred, in part, to the human services department, pursuant to Laws 1977, ch. 252, §§ 3, 5. See 9-8-3 NMSA 1978. The bracketed material was inserted by the compiler and is not a part of the law. Laws 2023, ch. 205, § 16 provided that references to the human services department shall be deemed to be references to the health care authority department. Contingent repeal. — Laws 2023, ch. 118, § 6 provided that the provisions of 32A-11-3 NMSA 1978 shall become effective when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children as provided in Section B of Article 14 of the Revised Interstate Compact on the Placement of Children. The secretary of children, youth and families shall notify the governor, the executive director of the New Mexico compilation commission and the director of the legislative council service when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children. 32A-11-4. "Appropriate authority"; health and social services department [human services department][health care authority department]. (Contingent repeal. See note.) As used in Paragraph A of Article 5 of the Interstate Compact on the Placement of Children, the phrase, "appropriate authority in the receiving state," with reference to New Mexico shall mean the health and social services department [human services department][health care authority department]. History: 1953 Comp., § 13-16A-4, enacted by Laws 1977, ch. 151, § 4; recompiled as 1978 Comp., § 32A-11-4 by Laws 1993, ch. 77, § 212. ANNOTATIONS Bracketed material. — The health and social services department has been abolished, and its functions have been transferred, in part, to the human services department, pursuant to Laws 1977, ch. 252, §§ 3, 5. See 9-8-3 NMSA 1978. The bracketed material was inserted by the compiler and is not a part of the law. Laws 2023, ch. 205, § 16 provided that references to the human services department shall be deemed to be references to the health care authority department. Contingent repeal. — Laws 2023, ch. 118, § 6 provided that the provisions of 32A-11-4 NMSA 1978 shall become effective when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children as provided in Section B of Article 14 of the Revised Interstate Compact on the Placement of Children. The secretary of children, youth and families shall notify the governor, the executive director of the New Mexico compilation commission and the director of the legislative council service when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children. 32A-11-5. Financial commitment; approval. The officers and agencies of the state and of its political subdivisions having authority to place children are hereby empowered to enter into agreements with appropriate officers or agencies of or in other party states pursuant to Paragraph B of Article 5 of the Interstate Compact on the Placement of Children. Any such agreement which contains a financial commitment or imposes a financial obligation on the state or political subdivision or agency thereof shall not be binding unless it has the approval in writing of the secretary of finance and administration and of the chief local fiscal officer in the case of a political subdivision of the state. History: 1953 Comp., § 13-16A-5, enacted by Laws 1977, ch. 151, § 5; 1983, ch. 301, § 73; recompiled as 1978 Comp., § 32A-11-5 by Laws 1993, ch. 77, § 212. 32A-11-5. Financial commitment; approval. (Contingent effective date. See note below.) The officers and agencies of the state and of its political subdivisions having authority to place children are hereby empowered to enter into agreements with appropriate officers or agencies of or in other party states pursuant to Paragraph (3) of Section A of Article 7 of the Revised Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978]. Any such agreement that contains a financial commitment or imposes a financial obligation on the state or political subdivision or agency thereof shall not be binding unless it has the approval in writing of the secretary of finance and administration and of the chief local fiscal officer in the case of a political subdivision of the state. History: 1953 Comp., § 13-16A-5, enacted by Laws 1977, ch. 151, § 5; 1983, ch. 301, § 73; recompiled as 1978 Comp., § 32A-11-5 by Laws 1993, ch. 77, § 212; 2023, ch. 118, § 3. ANNOTATIONS The 2023 amendment, after "Paragraph", deleted "B of Article 5" and added "(3) of Section A of Article 7", and added "Revised" preceding "Interstate Compact". Contingent effective dates. — The effective date of the provisions of Laws 2023, ch. 118, § 3 shall become effective when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children as provided in Section B of Article 14 of the Revised Interstate Compact on the Placement of Children. The secretary of children, youth and families shall notify the governor, the executive director of the New Mexico compilation commission and the director of the legislative council service when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children. 32A-11-6. Court jurisdiction in placement of delinquent children. Any court having jurisdiction to place delinquent children may place such a child in an institution in another state pursuant to Article 6 of the Interstate Compact on the Placement of Children and shall retain jurisdiction as provided in Article 5 thereof. History: 1953 Comp., § 13-16A-6, enacted by Laws 1977, ch. 151, § 6; recompiled as 1978 Comp., § 32A-11-6 by Laws 1993, ch. 77, § 212. 32A-11-6. Court jurisdiction in placement of delinquent children. (Contingent effective date. See note below.) Any court having jurisdiction to place delinquent children may place such a child in an institution in another state pursuant to Article 3 of the Revised Interstate Compact on the Placement of Children [32A-11-1 NMSA 1978] and shall retain jurisdiction as provided in Article 4 of that compact. History: 1953 Comp., § 13-16A-6, enacted by Laws 1977, ch. 151, § 6; recompiled as 1978 Comp., § 32A-11-6 by Laws 1993, ch. 77, § 212; 2023, ch. 118, § 4. ANNOTATIONS The 2023 amendment, after the first occurrence of "Article", deleted "6" and added "3", added "Revised" preceding "Interstate Compact", and after the second occurrence of "Article", deleted "5 thereof" and added "4 of that compact". Contingent effective dates. — The effective date of the provisions of Laws 2023, ch. 118, § 4 shall become effective when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children as provided in Section B of Article 14 of the Revised Interstate Compact on the Placement of Children. The secretary of children, youth and families shall notify the governor, the executive director of the New Mexico compilation commission and the director of the legislative council service when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children. 32A-11-7. Governor. As used in Article 7 of the Interstate Compact on the Placement of Children, the term "executive head" means the governor. The governor is hereby authorized to appoint a compact administrator in accordance with the terms of said Article 7. History: 1953 Comp., § 13-16A-7, enacted by Laws 1977, ch. 151, § 7; recompiled as 1978 Comp., § 32A-11-7 by Laws 1993, ch. 77, § 212. 32A-11-7. Governor. (Contingent effective date. See note below.) As used in Article 8 of the Revised Interstate Compact on the Placement of Children, [32A-11-1 NMSA 1978] the term "executive head" means the governor. The governor is hereby authorized to appoint a compact administrator in accordance with the terms of Article 8 of that compact. History: 1953 Comp., § 13-16A-7, enacted by Laws 1977, ch. 151, § 7; recompiled as 1978 Comp., § 32A-11-7 by Laws 1993, ch. 77, § 212; 2023, ch. 118, § 5. ANNOTATIONS The 2023 amendment, after "As used in", deleted "Article 7" and added "Article 8", added "Revised" preceding "Interstate Compact on the Placement of Children", and after "the terms of", deleted "Article 7" and added "Article 8 of that compact". Contingent effective dates. — The effective date of the provisions of Laws 2023, ch. 118, § 5 shall become effective when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children as provided in Section B of Article 14 of the Revised Interstate Compact on the Placement of Children. The secretary of children, youth and families shall notify the governor, the executive director of the New Mexico compilation commission and the director of the legislative council service when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children. ARTICLE 12 Residential Treatment Program ANNOTATIONS Compiler's notes. — Sections 32A-12-1 and 32A-12-2 NMSA 1978 were originally recompiled from 32-5-1 and 32-5-2 NMSA 1978 to 32-12-1 and 32-12-2 NMSA 1978 by Laws 1993, ch. 77, § 213, and were subsequently recompiled at this location in 1993 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been retained whenever possible. 32A-12-1. Residential treatment program established. A. There is established within the children, youth and families department a residential treatment program for youths. The program shall be for the purpose of providing residential treatment or therapeutic group home care to youths. Residential treatment services shall be provided to youths who are determined to be in need of such services pursuant to Section 43-1-16 [repealed] or 43-1-16.1 NMSA 1978 [repealed]. B. Services shall be provided through a grant or contract with local community providers who have demonstrated the capability of providing such services. All program facilities used for provision of residential treatment or therapeutic group home care shall meet all applicable licensing requirements. C. Contracts may be let to out-of-state providers only upon a finding by the secretary of children, youth and families that appropriate in-state providers are not available. D. The secretary of human services and the secretary of children, youth and families shall execute an agreement specifying the manner in which clients and funds in the custody of the human services department [health care authority department] shall be transferred to the children, youth and families department for treatment and the ongoing responsibilities of each agency toward the clients served. History: Laws 1979, ch. 227, § 1; 1983, ch. 93, § 1; 1992, ch. 57, § 37; recompiled as 1978 Comp., § 32A-12-1 by Laws 1993, ch. 77, § 213. ANNOTATIONS Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Laws 2023, ch. 205, § 16 provided that references to the human services department shall be deemed to be references to the health care authority department. Cross references. — For children, youth and families department, see 9-2A-1 NMSA 1978. 32A-12-2. Residential treatment programs; rules. The secretary of children, youth and families shall adopt rules to provide for: A. minimum standards that shall be met by a residential treatment program, including a requirement that the program make reasonable provisions for adequate physical space for a school district to provide the required free appropriate public education; B. procedures and forms for applying for a departmental grant or contract; C. procedures and criteria for review and approval or denial of such applications; D. procedures for approval of facilities and programs in or through which services are to be performed; E. procedures and specifications of programmatic and financial information to be reported by residential treatment programs to the children, youth and families department for purposes of evaluating the effectiveness of programs funded by the department; and F. procedures for review of potential clients for residential treatment or therapeutic group home care. History: Laws 1979, ch. 227, § 2; 1992, ch. 57, § 38; recompiled as 1978 Comp., § 32A-12-2 by Laws 1993, ch. 77, § 213; 2009, ch. 162, § 2. ANNOTATIONS Cross references. — For children, youth and families department, see 9-2A-1 NMSA 1978 et seq. The 2009 amendment, effective July 1, 2009, in Subsection A, after "residential treatment program", added the remainder of the sentence. ARTICLE 13 Juvenile Assistance Programs ANNOTATIONS Compiler's notes. — Sections 32A-13-1 to 32A-13-3 NMSA 1978 were originally recompiled from 32-6-1 to 32-6-3 NMSA 1978 to 32-13-1 to 32-13-3 NMSA 1978 by Laws 1993, ch. 77, § 214, and were subsequently recompiled at this location in 1993 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been retained whenever possible. 32A-13-1. Purpose. The legislature finds that juvenile crime is steadily increasing and that a reliable process of disposition of juvenile offenders and the availability of treatment alternatives is likely to decrease repeated criminal activity. The legislature further finds that there is a need for a community-based system for juveniles which would provide reintegration assistance, diagnostic evaluations and referral to community-based treatment programs for courts, district attorneys and other service agencies. Two programs related to such a system and associated with the judicial and criminal justice systems have been tested for the past three years. They have been found to be successful in providing evaluation and treatment and have shown significant reduction of repeated criminal activity. These programs are the forensic evaluation program and the wilderness experience program. History: Laws 1979, ch. 300, § 1; recompiled as 1978 Comp., § 32A-13-1 by Laws 1993, ch. 77, § 214. 32A-13-2. Juvenile forensic evaluation program. A. There is created within the children, youth and families department the "juvenile forensic evaluation program". The program shall be staffed by juvenile forensic evaluation teams and shall provide evaluation of children alleged or found to be in need of supervision and alleged delinquents upon request of the court, law enforcement agencies and juvenile probation officers. B. The juvenile forensic evaluation teams shall recommend referral of children alleged or found to be in need of supervision or alleged delinquents to the children, youth and families department, department of health or human services department [health care authority department] or recommend any other appropriate legal disposition based on the diagnostic evaluation. Juvenile forensic evaluation teams shall follow the juvenile in each stage of treatment, utilizing a data management system established by the children, youth and families department, and shall provide information upon request to state agencies, pursuant to applicable confidentiality provisions pertaining to children. History: Laws 1979, ch. 300, § 2; 1989, ch. 328, § 11; 1992, ch. 57, § 39; recompiled as 1978 Comp., § 32A-13-2 by Laws 1993, ch. 77, § 214. ANNOTATIONS Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Laws 2023, ch. 205, § 16 provided that references to the human services department shall be deemed to be references to the health care authority department. Cross references. — For children, youth and families department, see 9-2A-1 NMSA 1978. 32A-13-3. Wilderness experience program. A wilderness experience program shall be provided by the children, youth and families department as needed for the treatment of children alleged or found to be delinquent or in need of supervision. This program shall work in conjunction with the other forensic programs and criminal justice agencies throughout the state by providing a wilderness-based evaluation and treatment experience for juveniles. It shall be the responsibility of this program to provide, in conjunction with the juvenile forensic evaluation program, programming for juveniles referred from criminal justice agencies and diagnosed as in need of such treatment. The wilderness experience program staff shall make comprehensive reports based on the evaluation of individuals during the treatment experience and shall make recommendations for further treatment and referral to other service programs as necessary. History: Laws 1979, ch. 300, § 3; 1988, ch. 101, § 30; 1992, ch. 57, § 40; recompiled as 1978 Comp., § 32A-13-3 by Laws 1993, ch. 77, § 214. ANNOTATIONS Cross references. — For children, youth and families department, see 9-2A-1 NMSA 1978. ARTICLE 14 Missing Child Reporting (Repealed.) 32A-14-1. Repealed. History: Laws 1987, ch. 25, § 1; recompiled as 1978 Comp., § 32A-14-1 by Laws 1993, ch. 77, § 215; repealed by Laws 2010, ch. 33, § 15. ANNOTATIONS Repeals. — Laws 2010, ch. 33, § 15 repealed 32A-14-1 NMSA 1978, as enacted by Laws 1987, ch. 25, § 1, the short title of the Missing Child Reporting Act, effective May 19, 2010. For provisions of former section, see the 2009 NMSA 1978 on NMOneSource.com. 32A-14-2. Repealed. History: Laws 1987, ch. 25, § 2; recompiled as 1978 Comp., § 32A-14-2 by Laws 1993, ch. 77, § 215; repealed by Laws 2010, ch. 33, § 15. ANNOTATIONS Repeals. — Laws 2010, ch. 33, § 15 repealed 32A-14-2 NMSA 1978, as enacted by Laws 1987, ch. 25, § 2, relating to the definitions of the Missing Child Reporting Act, effective May 19, 2010. For provisions of former section, see the 2009 NMSA 1978 on NMOneSource.com. 32A-14-3. Repealed. History: Laws 1987, ch. 25, § 3; recompiled as 1978 Comp., § 32A-14-3 by Laws 1993, ch. 77, § 215; 2001, ch. 187, § 1; repealed by Laws 2010, ch. 33, § 15. ANNOTATIONS Repeals. — Laws 2010, ch. 33, § 15 repealed 32A-14-3 NMSA 1978, as enacted by Laws 1987, ch. 25, § 3, relating to missing child reports, law enforcement agencies and duties, effective May 19, 2010. For provisions of former section, see the 2009 NMSA 1978 on NMOneSource.com. For present comparable provisions, see 29-15-7.1 NMSA 1978. 32A-14-4. Repealed. History: Laws 1987, ch. 25, § 4; recompiled as 1978 Comp., § 32A-14-4 by Laws 1993, ch. 77, § 215; repealed by Laws 2010, ch. 33, § 15. ANNOTATIONS Repeals. — Laws 2010, ch. 33, § 15 repealed 32A-14-4 NMSA 1978, as enacted by Laws 1987, ch. 25, § 4, relating to birth records of missing children and the state registrar's duties, effective May 19, 2010. For provisions of former section, see the 2009 NMSA 1978 on NMOneSource.com. For present comparable provisions, see 29-15-7.2 NMSA 1978. ARTICLE 15 Children's and Juvenile Facility Criminal Records Screening ANNOTATIONS Compiler's notes. — Sections 32A-15-1 to 32A-15-4 NMSA 1978 were originally recompiled from 32-9-1 to 32-9-4 NMSA 1978 to 32-15-1 to 32-15-4 NMSA 1978 by Laws 1993, ch. 77, § 216, and were subsequently recompiled at this location in 1993 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been retained whenever possible. 32A-15-1. Short title. Chapter 32A, Article 15 NMSA 1978 may be cited as the "New Mexico Children's and Juvenile Facility and Program Criminal Records Screening Act". History: Laws 1985, ch. 103, § 1 and Laws 1985, ch. 140, § 1; 1978 Comp., § 24-18-1, recompiled as 1978 Comp., § 32-9-1; recompiled as 1978 Comp., § 32A-15-1 by Laws 1993, ch. 77, § 216; 2003, ch. 261, § 1; 2005, ch. 189, § 74. ANNOTATIONS The 2005 amendment, effective June 17, 2005, changed the name of the act to the New Mexico Children's and Juvenile Facility and Program Criminal Records Screening Act. The 2003 amendment, effective July 1, 2003, substituted "Chapter 32A, Article 15 NMSA 1978" for "This act" at the beginning of the section. 32A-15-2. Purpose. The purpose of the New Mexico Children's and Juvenile Facility and Program Criminal Records Screening Act is to comply with the provisions of Public Law 98-473 and Public Law 108-36 and to protect the safety and welfare of children. History: Laws 1985, ch. 103, § 2 and Laws 1985, ch. 140, § 2; 1978 Comp., § 24-18-2, recompiled as 1978 Comp., § 32-9-2; recompiled as 1978 Comp., § 32A-15-2 by Laws 1993, ch. 77, § 216; 2005, ch. 189, § 75. ANNOTATIONS Cross references. — For Public Law 98-473, which refers to the Continuing Appropriations, 1985 - Comprehensive Crime Control Act of 1984, see 98 Stat. 1837. The 2005 amendment, effective June 17, 2005, changed the name of the act. added the reference to Public Law 108-36 and added the purpose to protect the safety and welfare of children. 32A-15-3. Criminal history records check; background checks. A. State and national criminal history records checks shall be conducted on all operators, employees, student interns and volunteers and prospective operators, employees, student interns and volunteers of every facility or program that has primary custody of children for twenty hours or more per week, and juvenile detention facilities, juvenile correction facilities or treatment facilities. State and national criminal history records checks shall also be conducted on all prospective foster or adoptive parents and other adult relatives and non-relatives residing in the prospective foster or adoptive parent's household. The objective of conducting the records checks is to protect the children involved and promote the children's safety and welfare while receiving service from the facilities and programs. B. For purposes of investigating the suitability of persons enumerated in Subsection A of this section, the department shall have access to criminal history records information furnished by the department of public safety and the federal bureau of investigation, subject to any restrictions imposed by federal law. As directed by the department, a person enumerated in Subsection A of this section shall submit a set of electronic fingerprints to the department of public safety. The department of public safety shall conduct a check of state criminal history records and forward the fingerprints to the federal bureau of investigation for a national criminal history records check to determine the existence and content of records of convictions and arrests in this state or other law enforcement jurisdictions and to generate a criminal history records check in accordance with rules of the department and regulations of the federal bureau of investigation. The department of public safety shall review the information returned from the criminal history records check and compile and disseminate the criminal history record information to the department, which shall use the information to investigate and determine whether a person is qualified to provide care for a child or be a foster or adoptive parent. C. Criminal history records obtained pursuant to the provisions of this section are confidential and are not a public record for purposes of the Inspection of Public Records Act [Chapter 14, Article 3 NMSA 1978] and shall not be used for any purpose other than determining suitability for licensure, employment, volunteer service, fostering or adoption. Criminal history records obtained pursuant to the provisions of this section and the information contained in those records shall not be released or disclosed to any other person or agency, except pursuant to a court order or with the written consent of the person who is the subject of the records. D. A person who releases or discloses criminal history records or information contained in those records in violation of the provisions of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. E. As used in this section: (1) "behavior management skills development" means services for children and adolescents with psychological, emotional, behavioral, neurobiological or substance abuse problems in the home, community or school when such problems are of such severity that highly supportive and structured therapeutic behavioral interventions are required. These services are designed to maintain the client in the client's home, community or school setting; (2) "case management" means services provided in order to assist children and adolescents with identifying and meeting multiple and complex, special physical, cognitive and behavioral health care needs through planning, securing, monitoring, advocating and coordinating services; (3) "child placement agency" means an individual or an entity licensed by the department as an adoption agency, foster care agency or both that is undertaking to place a child in a home in this or any other state for the purpose of providing foster care or adoption services; (4) "comprehensive community support services" means a variety of interventions, primarily face-to-face and in community locations, that address barriers that impede the development of skills necessary to independent functioning in the community; (5) "day treatment" means a coordinated and intensive set of structured individualized therapeutic services, in a school or a facility licensed by the department, provided for children, adolescents and their families who are living in the community; (6) "employee" means a person working for a facility or program who has direct care responsibilities or potential unsupervised access to care recipients; (7) "facility" means a juvenile correction facility, a juvenile detention facility or a treatment facility; (8) "group home" means mental and behavioral health services offered in a supervised, licensed facility that provides structured therapeutic group living for children or adolescents with moderate behavioral, psychological, neurobiological or emotional problems, when clinical history and opinion establish that the needs of the client cannot be met in a less restrictive environment; (9) "intensive outpatient programming" means a time-limited, multifaceted approach to treatment services for children or adolescents who require structure and support to achieve and sustain recovery; (10) "juvenile correction facility" means the physical plant and buildings operated by or on behalf of the juvenile justice division of the department or any other facility or location designated by the juvenile justice division's director to house or provide care to clients committed to the custody of the department; (11) "juvenile detention facility" means a place where a child may be detained under the Children's Code [Chapter 32A NMSA 1978] pending a court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child; (12) "operator" means a person who has any oversight over a facility's or program's employees or day-to-day operations; (13) "prevention, intervention and reunification services" means prevention awareness, family support and reunification services for families that are at high risk of child maltreatment; (14) "primary custody" means that a facility or program holds temporary or long-term custody or supervision over children in the absence of a parent or guardian; (15) "program" means behavior management skills development, case management, a group home, day treatment, treatment foster care services, a child placement agency, licensed shelter care, comprehensive community support services, intensive outpatient programming, supervised visitation and safe exchange and children, youth and families department contractors and providers receiving funding or reimbursement to provide prevention, intervention and reunification services; (16) "residential treatment facility" means a program that provides twenty-four- hour therapeutic care to children or adolescents with severe behavioral, psychological, neurobiological or emotional problems who are in need of psychosocial rehabilitation in a residential facility; (17) "shelter care" means any facility that provides short-term emergency living accommodations to children in a crisis situation, such as abandonment, abuse or neglect, or who are runaways; (18) "student intern" means a person who is paid or unpaid and is present in a facility or program to work, observe or gain skills in a particular profession; (19) "supervised visitation and safe exchange" means a service that provides children and their parents with a safe, nurturing environment for supervised visitation and exchange, allowing a child to continue the child's relationship with the noncustodial parent without being placed in the middle of parental conflicts; (20) "treatment facility" means a residential treatment facility or group home; (21) "treatment foster care services" means a program that provides therapeutic services to children or adolescents who are psychologically or emotionally disturbed or behaviorally disordered and are placed in a foster family setting; and (22) "volunteer" means a person who spends less than six hours per week at a program, is under direct physical supervision and is not counted in the program facility ratio. History: Laws 1985, ch. 103, § 3 and Laws 1985, ch. 140, § 3; 1978 Comp., § 24-18-3, recompiled as 1978 Comp., § 32-9-3; recompiled as 1978 Comp., § 32A-15-3 by Laws 1993, ch. 77, § 216; 1999, ch. 146, § 1; 2003, ch. 261, § 2; 2005, ch. 189, § 76; 2022, ch. 30, § 14; 2024, ch. 28, § 2. ANNOTATIONS The 2024 amendment, effective February 29, 2024, amended an existing provision that required criminal background checks for persons working in programs having primary custody of children for more than 20 hours per week to include criminal background checks for student interns of the children, youth and families department, removed references to the early childhood education and care department, making the section applicable to the children, youth and families department only, and defined terms; in Subsection A, deleted "staff" preceding each occurrence of "employees", added "student interns" after each occurrence of "employees", after "volunteers of", deleted "child care facilities, including", after "juvenile detention", added "facilities, juvenile", and after "correction", added "facilities"; deleted former Subsections B and C and redesignated former Subsections D through F as Subsections B through D, respectively; in Subsection B, after "enumerated in", changed "Subsections B and C" to "Subsection A", after the next occurrence of "the", deleted "early childhood education and care department or the children, youth and families", and after "disseminate", deleted "a response" and added "the criminal history record information"; and added Subsection E. The 2022 amendment, effective July 1, 2022, authorized the early childhood education and care department to perform criminal history investigations for child care facility licensure and other purposes, and provided that the criminal history records obtained pursuant to this section are confidential and not a public record for purposes of the Inspection of Public Records Act; in Subsection A, after "shall be conducted on all operators, staff, employees", added "and volunteers", and after "prospective operators, staff, employees", added "and volunteers"; deleted former Subsections B and C, added new Subsections B through D, and redesignated former Subsections D and E as Subsections E and F, respectively; and in Subsection E, after "the provisions of this section", added "are confidential and are not a public record for purposes of the Inspection of Public Records Act and", and after "shall not be used for any purpose other than", deleted "conducting background checks", and added "determining suitability for licensure, employment, volunteer service, fostering or adoption". The 2005 amendment, effective June 17, 2005, provided in Subsection A that nationwide criminal history record checks shall be conducted on all prospective foster or adoptive parents and other adult relatives and non-relatives residing in the prospective foster or adoptive parent’s household; and provided in Subsection B that the department shall fingerprint and conduct a background check of all adoptive parents and other adult relatives and non-relatives residing in the prospective foster or adoptive parent's household. The 2003 amendment, effective July 1, 2003, substituted "conducting the record checks is to protect" for "protecting" following "The objective of" near the beginning of the second sentence of Subsection A; rewrote Subsection B; and added Subsections C, D and E. The 1999 amendment, effective July 1, 1999, added "Background Checks" in the section heading, substituted "the" for "such" in Subsection A and added Subsection B. 32A-15-4. Procedures. By December 31, 1993, procedures shall be established by regulation to provide for employment history and background checks for all present and prospective personnel identified in Section 32-9-3 [32A-15-3] NMSA 1978: A. by the secretary of children, youth and families for child care facilities and juvenile detention and correction facilities; and B. by the secretary of health for health and treatment facilities. History: Laws 1985, ch. 103, § 4 and Laws 1985, ch. 140, § 4; 1978 Comp., § 24-18-4, recompiled as 1978 Comp., § 32-9-4; recompiled as 1978 Comp., § 32A-15-4 by Laws 1993, ch. 77, § 216; 1993, ch. 263, § 1. ANNOTATIONS Laws 1985, ch. 103, § 4 and Laws 1985, ch. 140, § 4, enacted identical sections. The 1993 amendment, effective July 1, 1993, substituted "December 31, 1993" for "September 9, 1985" at the beginning and "Section 32-9-3 NMSA 1978" for "Section 3 of the New Mexico Children's and Juvenile Facility Criminal Records Screening Act" at the end of the introductory language; rewrote Subsection A, which read "by the secretary of human services for child care facilities"; deleted "and environment" following "health" in Subsection B; and deleted former Subsection C, which read "by the secretary of corrections for juvenile detention and correction facilities." ARTICLE 16 Child Development (Repealed.) 32A-16-1. Repealed. History: Laws 1989, ch. 290, § 1; 1992, ch. 57, § 44; recompiled as 1978 Comp., § 32A-16-1 by Laws 1993, ch. 77, § 217; repealed by Laws 2012, ch. 14, § 2. ANNOTATIONS Repeals. — Laws 2012, ch. 14, § 2 repealed 32A-16-1 NMSA 1978, as enacted by Laws 1989, ch. 290, § 1, relating to the office of child development, effective May 16, 2012. For provisions of former section, see the 2011 NMSA 1978 on NMOneSource.com. 32A-16-2. Repealed. History: Laws 1989, ch. 290, § 2; 1991, ch. 167, § 1; 1992, ch. 57, § 45; recompiled as 1978 Comp., § 32A-16-2 by Laws 1993, ch. 77, § 217; repealed by Laws 2012, ch. 14, § 2. ANNOTATIONS Repeals. — Laws 2012, ch. 14, § 2 repealed 32A-16-2 NMSA 1978, as enacted by Laws 1989, ch. 290, § 2, relating to the director and duties of the office of child development, effective May 16, 2012. For provisions of former section, see the 2011 NMSA 1978 on NMOneSource.com. 32A-16-3. Repealed. History: Laws 1989, ch. 290, § 3; recompiled as 1978 Comp., § 32A-16-3 by Laws 1993, ch. 77, § 217; repealed by Laws 2012, ch. 14, § 2. ANNOTATIONS Repeals. — Laws 2012, ch. 14, § 2 repealed 32A-16-3 NMSA 1978, as enacted by Laws 1989, ch. 290, § 3, relating to the child development board, effective May 16, 2012. For provisions of former section, see the 2011 NMSA 1978 on NMOneSource.com. 32A-16-4. Repealed. History: Laws 1989, ch. 290, § 4; 1991, ch. 167, § 2; 1992, ch. 57, § 46; recompiled as 1978 Comp., § 32A-16-4 by Laws 1993, ch. 77, § 217; 2007, ch. 46, § 41; repealed by Laws 2012, ch. 14, § 2. ANNOTATIONS Repeals. — Laws 2012, ch. 14, § 2 repealed 32A-16-4 NMSA 1978, as enacted by Laws 1989, ch. 290, § 4, relating to child development board duties, effective May 16, 2012. For provisions of former section, see the 2011 NMSA 1978 on NMOneSource.com. ARTICLE 17 Family Support ANNOTATIONS Compiler's notes. — Sections 32A-17-1 to 32A-17-6 NMSA 1978 were originally enacted as 32-17-1 to 32-17-6 NMSA 1978 by Laws 1993, ch. 77, §§ 218 to 223, and were subsequently recompiled at this location in 1993 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been retained whenever possible. 32A-17-1. Short title. Chapter 32A, Article 17 NMSA 1978 may be cited as the "Family Support Act". History: 1978 Comp., § 32A-17-1, enacted by Laws 1993, ch. 77, § 218; 2005, ch. 68, § 5. ANNOTATIONS Compiler's notes. — Sections 32A-17-1 to 32A-17-6 NMSA 1978 were originally enacted as 32-17-1 to 32-17-6 NMSA 1978 by Laws 1993, ch. 77, §§ 218 to 223, and were subsequently recompiled at this location in 1993 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been retained whenever possible. The short title of the Family Preservation Act was changed in 2005 to the Family Support Act. A new Family Preservation Act was enacted by Laws 2005, ch. 68 and compiled as Sections 40-15-1 through 40-15-4 NMSA 1978. The 2005 amendment, effective June 17, 2005, changed the name of the act. 32A-17-2. Definition. As used in the Family Support Act, "family support services" means short-term, intensive services, provided to a family whose child may reasonably be expected to face out-of-home placement, that are designed to teach a family new skills to help the family remain intact and able to care for the child at home. History: 1978 Comp., § 32A-17-2, enacted by Laws 1993, ch. 77, § 219; 2005, ch. 68, § 6. ANNOTATIONS The 2005 amendment, effective June 17, 2005, changed the name of the act and changes the defined term to "family support services". 32A-17-3. Eligibility. Family support services may be provided, considering available resources, to a family whose child is at risk for placement as: A. an abused child; B. a neglected child; C. a child of a family in need of services; D. an emotionally disturbed child; or E. a delinquent child. History: 1978 Comp., § 32A-17-3, enacted by Laws 1993, ch. 77, § 220; 2005, ch. 68, § 7. ANNOTATIONS The 2005 amendment, effective June 17, 2005, changed "family preservation services" to "family support services". 32A-17-4. Service delivery. A. The department shall coordinate and implement the provision of family support services. The public education department shall assist the department by identifying children in public schools who are at risk for the purpose of making family support services available to the families of those children. The department shall ensure the statewide quality of family support services by: (1) providing standards and policies for family support services that are family-centered and that identify family strengths; (2) monitoring the provision of family support services to ensure that the services satisfy standards established by the department; (3) providing training for persons who provide family support services; and (4) establishing a standardized intake process for the purpose of rapidly assessing the needs of a child and family referred for family support services. B. A person who works in a family support services program shall: (1) provide family support services in the family's home or any other natural setting; (2) provide direct crisis intervention and therapeutic services, to be available twenty-four hours per day, seven days a week, as needed for each family; (3) assist with the solution of practical problems that contribute to family stress, so as to affect improved parental performance and enhanced functioning of the family unit; and (4) arrange for additional assistance, to the extent of available resources, for the family, including housing, child care, education and training, emergency cash grants, state and federally funded public assistance or any other basic support or social service appropriate for the family. History: 1978 Comp., § 32A-17-4, enacted by Laws 1993, ch. 77, § 221; 2005, ch. 68, § 8. ANNOTATIONS The 2005 amendment, effective June 17, 2005, changed "family preservation services" to "family support services". 32A-17-5. Qualifications. A person who provides family support services shall have appropriate training, experience, supervision and continuing education to carry out the person's duties. History: 1978 Comp., § 32A-17-5, enacted by Laws 1993, ch. 77, § 222; 2005, ch. 68, § 9. ANNOTATIONS The 2005 amendment, effective June 17, 2005, change "family preservation services" to "family support services". 32A-17-6. Evaluation. The secretary of the department shall conduct an annual evaluation of family support services, and the data collected during the evaluation shall be compiled in a manner that promotes comparison with data collected from similar programs in other states. History: 1978 Comp., § 32A-17-6, enacted by Laws 1993, ch. 77, § 223; 2005, ch. 68, § 10. ANNOTATIONS The 2005 amendment, effective June 17, 2005, changed "family preservation services" to "family support services". ARTICLE 18 Training for Cultural Recognition ANNOTATIONS Compiler's notes. — Sections 32A-18-1 to 32A-18-4 NMSA 1978 were originally enacted as 32-18-1 to 32-18-4 NMSA 1978 by Laws 1993, ch. 77, §§ 224 to 227, and were subsequently recompiled at this location in 1993 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been retained whenever possible. 32A-18-1. Cultural recognition. A. A person who serves as a judge, prosecutor, child's attorney, guardian ad litem, treatment guardian, court appointed attorney, court appointed special advocate, foster parent, mental health commissioner or mental health treatment service provider for a child subject to an abuse or neglect petition, a family in need of services petition or a mental health placement shall receive periodic training, to the extent of available resources, to develop his knowledge about children, the physical and psychological formation of children and the impact of ethnicity on a child's needs. Institutions that serve children and their families shall, considering available resources, provide similar training to institutional staff. B. The training shall include study of: (1) cross-cultural dynamics and sensitivity; (2) child development; (3) family composition and dynamics; (4) parenting skills and practices; (5) culturally appropriate treatment plans; and (6) alternative health practices. History: 1978 Comp., § 32A-18-1, enacted by Laws 1993, ch. 77, § 224; 1995, ch. 206, § 45; 1999, ch. 254, § 4; 2009, ch. 239, § 66. ANNOTATIONS The 2009 amendment, effective July 1, 2009, in Subsection A, after "prosecutor", added "child’s attorney". Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 1999 amendment, effective July 1, 1999, deleted "resource consultant" following "ad litem" in Subsection A. The 1995 amendment, effective July 1, 1995, inserted "resource consultant" following "guardian ad litem" in Subsection A. 32A-18-2. Coordination of training. The department shall coordinate the training required pursuant to the provisions of Section 32-18-1 [32A-18-1] NMSA 1978. History: 1978 Comp., § 32A-18-2, enacted by Laws 1993, ch. 77, § 225. 32A-18-3. Delinquency proceeding; training required for person who represents a child. A person who represents a child during a delinquency proceeding shall participate in the training required pursuant to the provisions of Section 32-18-1 [32A-18-1] NMSA 1978. History: 1978 Comp., § 32A-18-3, enacted by Laws 1993, ch. 77, § 226. 32A-18-4. Cultural awareness; culturally appropriate placements. A. An Indian child placed in foster care, preadoptive placement, adoptive placement or a secure facility shall be allowed to maintain the child's cultural ties and shall be permitted to participate in activities that strengthen cultural awareness. B. An Indian child placed in a secure facility shall be permitted to participate in activities that strengthen cultural awareness. A representative of the child's culture shall be allowed access to the secure facility to provide activities that strengthen cultural awareness; provided that the activities are restricted to the premises of the secure facility. C. Upon determining that a placement out of the home is medically necessary for an Indian child, the interagency behavioral health purchasing collaborative and its contractors shall make reasonable efforts to place the child with a licensed residential treatment center, group home or treatment foster care home that provides culturally competent care and access to appropriate cultural practices, including traditional treatment, as determined in consultation with the child's tribe. History: 1978 Comp., § 32A-18-4, enacted by Laws 1993, ch. 77, § 227; 2005, ch. 188, § 1. ANNOTATIONS The 2005 amendment, effective June 17, 2005, added Subsection C to require that the interagency behavioral health purchasing collaborative and its contractors make a reasonable effort to place an Indian child with a center or home that provides culturally competent care and access to appropriate cultural practices, including traditional treatment, as determined in consultation with the child’s tribe. ARTICLE 19 Quality Assurance Office ANNOTATIONS Compiler's notes. — Section 32A-19-1 NMSA 1978 was originally enacted as 32-19-1 NMSA 1978 by Laws 1993, ch. 77, § 228, and was subsequently recompiled at this location in 1993 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been retained whenever possible. 32A-19-1. Quality assurance office. A. The department shall maintain a quality assurance office under the office of the secretary [secretary of the children youth and families department]. B. The purpose of the quality assurance office shall be to facilitate department efforts to efficiently implement the purposes of the Children's Code. C. In order to measure the quality of services provided, to facilitate satisfactory outcomes for children and families that receive services and to provide a continuing opportunity to improve service delivery, the quality assurance office shall: (1) monitor the system for receiving and resolving complaints and grievances; (2) perform periodic investigations and evaluations to assure compliance with the Children's Code and other applicable state and federal laws and regulations; (3) facilitate monitoring of indicators of the department's performance to determine whether the department is: (a) providing children and families with individualized, needs-based service plans; (b) providing services in a timely manner; and (c) in compliance with applicable state and federal laws and regulations; (4) identify any deficiencies and recommend corrective action to the secretary of the department; (5) have access to any records maintained by the department, including confidential information; and (6) promote continuous improvement of all department processes serving children and families. D. The quality assurance office shall contribute to and facilitate the publication of public reports assessing the performance of the department. The reports shall not disclose the identity of any individual mentioned in the report, including children or families that receive or are eligible for services or any department employee. History: 1978 Comp., § 32A-19-1, enacted by Laws 1993, ch. 77, § 228; 1997, ch. 34, § 15. ANNOTATIONS Bracketed material. — The bracketed material in Subsection A was inserted by the compiler since "secretary" is not a defined term in this article; the bracketed material is not a part of the law. The 1997 amendment, effective July 1, 1997, deleted "By August 1, 1993" from the beginning of Subsection A; substituted "implement" for "achieve" in Subsection B; in Subsection C, substituted "monitor the system" for "establish an accessible system" in Paragraph (1), substituted "facilitate monitoring of" for "monitor" in Paragraph (3), and added Paragraph (6); substituted "contribute to and facilitate the publication of" for "annually produce" in the first sentence of Subsection D; and made minor stylistic changes throughout the section. ARTICLE 20 Uniform Case Numbering ANNOTATIONS Compiler's notes. — Section 32A-20-1 NMSA 1978 was originaly enacted as 32-20-1 NMSA 1978 by Laws 1993, ch. 77, § 229 and was subsequently recompiled at this location in 1993 in order to retain a historical link between the pre-July 1, 1993 law and the judicial precedents decided under that law. Citations to decisions under prior law have been retained whenever possible. 32A-20-1. Uniform case numbering system. A. As used in this section, "uniform case numbering system" means a system of referring to cases of alleged child abuse or neglect, including child sexual abuse, to allow only one numerical designation to be assigned to each case of child abuse or neglect. The uniform case numbering system shall provide for uniform reference to each case by all state agencies and organizations supported by state funds. B. In any investigation, intervention or disposition of a case involving child abuse or neglect, including child sexual abuse, a uniform case number shall be assigned to the investigation and shall be maintained and referred to by all persons or agencies having occasion to become involved in any way in the investigation, intervention or disposition of the case. C. A uniform case numbering system shall be devised, proposed and, after opportunity for public input, adopted by: (1) the department; (2) the secretary of public safety or his designee; (3) the secretary of the department or his designee; (4) the secretary of health or his designee; (5) the superintendent of public instruction or his designee; (6) the chief justice of the supreme court or his designee; and (7) a representative of the elected or appointed district attorneys. D. The data collected in connection with the uniform case numbering system shall be limited to the names of the alleged offender and alleged victim, the date of the alleged occurrence and a unique case number which encodes the county of the alleged offense, the type of alleged offense and the case disposition, if known. The names of the alleged offender and alleged victim shall be purged as soon as the uniform case number is disseminated to all agencies involved in investigation and rehabilitative service provision in that case, or within six months of the date the uniform case number is assigned, whichever is first. History: 1978 Comp., § 32A-20-1, enacted by Laws 1993, ch. 77, § 229. ARTICLE 21 Emancipation of Minors 32A-21-1. Short title. Sections 47 through 53 [32A-21-1 to 32A-21-7 NMSA 1978] of this act may be cited as the "Emancipation of Minors Act". History: Laws 1995, ch. 206, § 47. 32A-21-2. Legislative findings and purpose. It is the purpose of the Emancipation of Minors Act to provide a clear statement defining emancipation and its consequences and to permit an emancipated minor to obtain a court declaration of his status. History: Laws 1995, ch. 206, § 48. 32A-21-3. Emancipated minors; description. An emancipated minor is any person sixteen years of age or older who: A. has entered into a valid marriage, whether or not the marriage was terminated by dissolution; B. is on active duty with any of the armed forces of the United States of America; or C. has received a declaration of emancipation pursuant to the Emancipation of Minors Act. History: Laws 1995, ch. 206, § 49. 32A-21-4. Emancipation by declaration. Any person sixteen years of age or older may be declared an emancipated minor for one or more of the purposes enumerated in the Emancipation of Minors Act if he is willingly living separate and apart from his parents, guardian or custodian, is managing his own financial affairs and the court finds it in the minor's best interest. History: Laws 1995, ch. 206, § 50. 32A-21-5. Over the age of majority; purposes. An emancipated minor shall be considered as being over the age of majority for one or more of the following purposes: A. consenting to medical, dental or psychiatric care without parental consent, knowledge or liability; B. his capacity to enter into a binding contract; C. his capacity to sue and be sued in his own name; D. his right to support by his parents; E. the rights of his parents to his earnings and to control him; F. establishing his own residence; G. buying or selling real property; H. ending all vicarious liability of the minor's parents, guardian or custodian for the minor's torts; provided that nothing in this section shall affect any liability of a parent, guardian, custodian, spouse or employer of a minor imposed by the Motor Vehicle Code [Chapter 66, Articles 1 through 8 NMSA 1978] or any vicarious liability that arises from an agency relationship; or I. enrolling in any school or college. History: Laws 1995, ch. 206, § 51. ANNOTATIONS Cross references. — For consent to medical care by emancipated minors, see 24-10-1 NMSA 1978. Partial emancipation. — The district court may emancipate a minor for some, rather than all of the enumerated purposes, and reserve the minor’s rights with respect to other purposes, including the right to financial support from a parent. Diamond v. Diamond, 2012-NMSC-022, 283 P.3d 260, rev’g 2011-NMCA-002, 149 N.M. 133, 245 P.3d 578. Emancipation reserving right to support from parents. — Where the district court issued a declaration of emancipation declaring the minor "an emancipated minor in all respects, except that [the minor] shall retain the right to support" from the minor’s parent; and the minor petitioned the district court to order the minor’s parent to pay retroactive and prospective child support to the minor, the district court’s reservation of the minor’s right to seek child support and the award of child support was consistent with the Emancipation of Minors Act. Diamond v. Diamond, 2012-NMSC-022, 283 P.3d 260, rev’g 2011-NMCA-002, 149 N.M. 133, 245 P.3d 578. List of benefits and consequences of emancipation. — Section 32A-21-15 NMSA 1978 lists the types of benefits and consequences of emancipation under various circumstances, but does not authorize a partial emancipation. Diamond v. Diamond, 2011-NMCA-002, 149 N.M. 133, 245 P.3d 578, rev'd, 2012-NMSC-022, 283 P.3d 260. Post-emancipation child support. — New Mexico law does not permit a minor emancipated pursuant to the Emancipation of Minors Act to collect child support payments for the period after emancipation and continuing until the emancipated minor reaches the age of eighteen. Diamond v. Diamond, 2011-NMCA-002, 149 N.M. 133, 245 P.3d 578, rev'd, 2012-NMSC-022, 283 P.3d 260. 32A-21-6. Public entitlement of emancipated minors. A declared emancipated minor shall not be denied benefits from any public entitlement program to which he may have been entitled in his own right prior to the declaration of emancipation. History: Laws 1995, ch. 206, § 52. 32A-21-7. Declaration of Emancipation; petition; contents; notice; mandate. A. A minor may petition the children's court of the district in which he resides for a declaration of emancipation as described in the Emancipation of Minors Act. The petition shall be verified and shall set forth with specificity the facts bringing the minor within the provisions of the Emancipation of Minors Act. B. Before the petition is heard, notice shall be given to the minor's parents, guardian or custodian in accordance with the Rules of Civil Procedure for the District Courts [1- 001 NMRA]. C. If the court finds that the minor is sixteen years of age or older and is a person described under Section 48 [32A-21-2 NMSA 1978] of this act, the court may grant the petition unless, after having considered all of the evidence introduced at the hearing, it finds that granting the petition would be contrary to the best interests of the minor. D. If the petition is sustained, the court shall immediately issue a declaration of emancipation containing specific findings of fact and one or more purposes of the emancipation, which shall be filed by the county clerk. E. If the petition is denied, the minor has a right to file a petition for a writ of mandamus. F. If the petition is sustained, the parents, guardian or custodian of the minor has a right to file a petition for a writ of mandamus if he appeared in the proceeding and opposed the granting of the petition. G. A declaration of emancipation granted in accordance with the Emancipation of Minors Act shall be conclusive evidence that the minor is emancipated. History: Laws 1995, ch. 206, § 53. ARTICLE 22 Children's Cabinet 32A-22-1. Short title. Chapter 32A, Article 22 NMSA 1978 may be cited as the "Children's Cabinet Act". History: Laws 2005, ch. 64, § 1; 2019, ch. 48, § 16. ANNOTATIONS The 2019 amendment, effective July 1, 2020, changed "This act" to "Chapter 32A, Article 22 NMSA 1978". 32A-22-2. Children's cabinet created. A. The "children's cabinet" is created and is administratively attached to the office of the governor. The children's cabinet shall meet at least six times each year. B. The children's cabinet consists of: (1) the governor; (2) the lieutenant governor; (3) the secretary of children, youth and families; (4) the secretary of early childhood education and care; (5) the secretary of corrections; (6) the secretary of human services; (7) the secretary of workforce solutions; (8) the secretary of health; (9) the secretary of finance and administration; (10) the secretary of economic development; (11) the secretary of public safety; (12) the secretary of aging and long-term services; (13) the secretary of Indian affairs; and (14) the secretary of public education. C. Each year, the governor shall select a person to serve as chair of the cabinet. History: Laws 2005, ch. 64, § 2; 2019, ch. 48, § 17. ANNOTATIONS The 2019 amendment, effective July 1, 2020, added the secretary of early childhood education and care to the children's cabinet, substituted the secretary of labor with the secretary of workforce solutions for membership in the children's cabinet, and required the governor to select a person to serve as chair; in Subsection B, added a new Paragraph (4) and redesignated the succeeding paragraphs accordingly; in Paragraph B(7), after "secretary of", deleted "labor" and added "workforce solutions"; and in Subsection C, after "Each year, the", deleted "children's cabinet" and added "governor", and after "shall select", deleted "the governor or lieutenant governor to be the chairperson" and added "a person to serve as chair of the cabinet". 32A-22-3. Powers; duties; goals. A. The children's cabinet shall study and make recommendations for the design of a coordinated system to maximize outcomes among children and youth under age twenty- one, particularly those in disadvantaged situations, in the following areas: (1) physical and mental health fitness; (2) family and community safety and support; (3) preparedness for and success in school; (4) successful transition to meaningful and purposeful adulthood and employment; and (5) valued contributions to and active participation in communities. B. Departments participating in the children's cabinet may enter into joint powers agreements pursuant to the Children's Cabinet Act. C. At least twice each year, the children's cabinet shall meet with parents, children, youth, educators, public officials and representatives of faith-based organizations, community-based organizations, philanthropic organizations, public schools and public school districts, colleges and universities, health care providers, nonprofit organizations, youth service providers, political subdivisions, the interim legislative health and human services committee and the legislative education study committee. The children's cabinet may coordinate with these persons as needed to design or implement the coordinated system. D. By September 1 of each year, the children's cabinet shall report and make recommendations to the governor and the legislature, including: (1) a child and youth report card that identifies the status and well-being of children and youth, including special target populations of children and youth that are disproportionately at risk, based on the outcomes in Subsection A of this section; and (2) a child and youth policy and inventory budget identifying state programs and initiatives that affect the well-being of children and youth, including proposed budget allocations toward the outcome areas in Subsection A of this section based on age, ethnicity and special target populations as determined by the children's cabinet. History: Laws 2005, ch. 64, § 3. ANNOTATIONS Effective dates. — Laws 2005, ch. 64 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 17, 2005, 90 days after adjournment of the legislature. 32A-22-4. Children's cabinet department liaisons. Each member of the children's cabinet shall name an employee to serve as a liaison to ensure coordination and communication among departments and agencies and to address cross-jurisdictional issues in an efficient, effective and expeditious manner. History: Laws 2005, ch. 64, § 4. ANNOTATIONS Effective dates. — Laws 2005, ch. 64 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 17, 2005, 90 days after adjournment of the legislature. ARTICLE 23 Pre-Kindergarten 32A-23-1. Short title. Chapter 32A, Article 23 NMSA 1978 may be cited as the "Pre-Kindergarten Act". History: Laws 2005, ch. 170, § 1; 2019, ch. 48, § 18. ANNOTATIONS The 2019 amendment, effective July 1, 2020, changed "This act" to "Chapter 32A, Article 23 NMSA 1978". 32A-23-2. Findings and purpose. The legislature finds that: A. special needs are present among the state's population of three- and four-year- old children and those needs warrant the provision of early pre-kindergarten and pre- kindergarten programs; B. participation in quality early pre-kindergarten and pre-kindergarten has a positive effect on children's intellectual, emotional, social and physical development; and C. early pre-kindergarten and pre-kindergarten will advance governmental interests and childhood development and readiness. History: Laws 2005, ch. 170, § 2; 2019, ch. 48, § 19. ANNOTATIONS The 2019 amendment, effective July 1, 2020, expanded early pre-kindergarten and pre-kindergarten program eligibility; in the section heading, deleted "and purpose"; in Subsection A, after "state's population of", added "three- and", and after "the provision of", added "early pre-kindergarten and"; in Subsection B, after "participation in quality", added "early pre-kindergarten and"; and in Subsection C, added "early pre-kindergarten and". 32A-23-3. Definitions. As used in the Pre-Kindergarten Act: A. "community" means an area defined by school district boundaries, tribal boundaries or joint boundaries of a school district and tribe or any combination of school districts and tribes; B. "department" means the early childhood education and care department; C. "early pre-kindergarten program" means a statewide, voluntary developmental readiness program for children who have attained their third birthday prior to September 1 that delivers to eligible children programs that address their total developmental needs, including their physical, cognitive, social and emotional needs, and that supports their development in the areas of health care, nutrition and safety and multicultural awareness; D. "eligible child" means a person age three or four on September 1 of the early pre- kindergarten or pre-kindergarten program year; E. "eligible provider" means a person licensed by the department to provide early childhood developmental readiness services or preschool special education, or is a public provider or a tribal program or head start program; F. "mixed delivery programming" means the provision of pre-kindergarten programs through an equal distribution of funds to programs administered by the public schools and other programs licensed by the department; G. "pre-kindergarten program" means a statewide, voluntary developmental readiness program for children who have attained their fourth birthday prior to September 1 that delivers to eligible children programs that address their total developmental needs, including their physical, cognitive, social and emotional needs, and that supports their development in the areas of health care, nutrition and safety and multicultural awareness; H. "public provider" means a school district or charter school; and I. "tribe" means an Indian nation, tribe or pueblo located in New Mexico. History: Laws 2005, ch. 170, § 3; 2019, ch. 48, § 20. ANNOTATIONS The 2019 amendment, effective July 1, 2020, defined "early pre-kindergarten program", "eligible child", "mixed delivery programming", and "public provider", and revised the definitions of "department", "eligible provider", and "pre-kindergarten program" as used in the Pre-kindergarten Act; in Subsection B, after "means the", deleted "children, youth and families" and added "early childhood education and care", and after "department", deleted "and the public education department acting jointly"; deleted former Subsection C, which defined "early childhood development specialist"; added new Subsections C and D, and redesignated former Subsection D as Subsection E; in Subsection E, after "licensed by the", deleted "children, youth and families", after "special education, or is", added "a public provider or", and after the next occurrence of "a", deleted "public school"; added a new Subsection F and redesignated former Subsection E as Subsection G; in Subsection G, after "pre-kindergarten", added "program", and after "September 1", added the remainder of the subsection; and added a new Subsection H and redesignated former Subsection F as Subsection I. 32A-23-4. Early pre-kindergarten and pre-kindergarten programs; interagency cooperation; contracts; contract monitoring; research. A. The department shall develop and implement an early pre-kindergarten program and a pre-kindergarten program. The department may transfer funds to the public education department for an approved public provider or may contract with any other eligible provider for the delivery of early pre-kindergarten and pre-kindergarten program services. B. The department shall establish standards and performance measures for the early pre-kindergarten and pre-kindergarten programs to ensure the delivery of high- quality, effective services that prepare participating children for kindergarten. The department and the public education department shall cooperate to align standards for early pre-kindergarten, pre-kindergarten and kindergarten programs. Those departments shall enter into an agreement to share data necessary to report on the early pre-kindergarten and pre-kindergarten programs' performance, including the percentage of program participants who: (1) enter kindergarten: (a) developmentally prepared for it; (b) needing special services; and (c) proficient in reading and mathematics; and (2) are retained in kindergarten or first, second or third grade. C. The department shall coordinate with federal head start agencies to avoid duplication of effort and maximize the use of available resources in the implementation of the early pre-kindergarten and pre-kindergarten programs. D. The department shall promulgate rules on pre-kindergarten program services, including state policies and standards defining length of service for pre-kindergarten and early pre-kindergarten programs, and shall review the process for making contract awards and for the expenditure and use of contract funds. E. The department shall monitor activity under early pre-kindergarten and pre- kindergarten program contracts to ensure adherence to child-centered, developmentally appropriate practices and outcomes. The department shall provide early childhood training and technical assistance to contract award recipients. F. Each year, the department shall provide an annual report to the governor and the legislature on the early pre-kindergarten and pre-kindergarten programs. History: Laws 2005, ch. 170, § 4; 2019, ch. 48, § 21. ANNOTATIONS The 2019 amendment, effective July 1, 2020, required the early childhood education and care department to develop and implement an early pre-kindergarten program and pre-kindergarten program, to establish standards and performance measures for the programs, to coordinate with federal head start agencies to avoid duplication of effort and maximize the use of available resources in the implementation of the programs, and to provide early childhood training and technical assistance to early pre- kindergarten and pre-kindergarten program contract award recipients; in the section heading, added "early pre-kindergarten and", and "programs"; in Subsection A, deleted "children, youth and families department and the public education", after "department shall", deleted "cooperate in the development and implementation of a voluntary" and added "develop and implement an early pre-kindergarten program and a pre- kindergarten", and deleted "for the provision of pre-kindergarten services throughout the state. The pre-kindergarten program shall address the total developmental needs of preschool children, including physical, cognitive, social and emotional needs, and shall include health care, nutrition, safety and multicultural sensitivity" and added the remainder of the subsection; added new Subsections B and C and redesignated former Subsections B through D as Subsections D through F; in Subsection D, after "policies and standards", added "defining length of service for pre-kindergarten and early pre- kindergarten programs"; in Subsection E, after "shall monitor", added "activity under early pre-kindergarten and", after "contracts to ensure", deleted "the effectiveness of" and added "adherence to", deleted "departments shall assign staff to work on the development and implementation of the program and on the monitoring of contract awards. The early childhood training and technical assistance programs of the children, youth and families department and assigned staff from the public education department staff" and added "department", after "shall provide" added "early childhood training and", and after "technical assistance to", deleted "eligible providers" and added "contract award recipients"; and in Subsection F, added "Each year", and after "the legislature on the", deleted "progress of the state's voluntary" and added "early pre- kindergarten and". 32A-23-5. Repealed. History: Laws 2005, ch. 170, § 5; 2011, ch. 140, § 1; repealed by Laws 2019, ch. 48, § 37. ANNOTATIONS Repeals. — Laws 2019, ch. 48, § 37 repealed 32A-23-5 NMSA 1978, as enacted by Laws 2005, ch. 170, § 5, relating to pre-kindergarten eligibility, effective July 1, 2020. For provisions of former section, see the 2019 NMSA 1978 on NMOneSource.com. 32A-23-6. Requests for proposals; contracts for services. A. The department shall solicit the delivery of both half-day and full-day early pre- kindergarten and pre-kindergarten program services by publishing a request for proposals or a request for applications that contains the same requested information for pre-kindergarten services. B. Eligible providers shall submit proposals to the department that shall include a description of the services that will be provided, including: (1) how the provider's services meet department standards; (2) the number of eligible children the provider can serve; (3) the provider's site and floor plans and a description of its facilities; (4) the revenue sources and non-state funding available for the provider's delivery of services; (5) a description of the qualifications and experience of the provider's service- delivery staff for each site; (6) the provider's plan for communicating with and involving parents of children in the early pre-kindergarten and pre-kindergarten programs; (7) how the provider's services meet the continuum of services to children; and (8) other relevant information. C. The department shall accept and evaluate proposals or applications for the delivery of early pre-kindergarten and pre-kindergarten program services by eligible providers. D. In selecting among proposals and applications for the delivery of early pre- kindergarten and pre-kindergarten program services, the department shall give priority to programs in communities with public elementary schools designated as Title I schools in which at least sixty-six percent of the children served reside within the attendance zone of a Title I elementary school. It shall further consider: (1) the number of eligible children residing in the community and the number of eligible children proposed to be served; (2) the adequacy and capacity of pre-kindergarten facilities in the community; (3) the availability of language and literacy services in the community; (4) the cultural, historic and linguistic responsiveness to the community; (5) the availability of parent education services for parents of eligible children in the community; (6) staff professional development plans; (7) the capacity of local organizations and persons interested in and involved in programs and services for eligible children and their commitment to work together; (8) the degree of local support for early pre-kindergarten and pre-kindergarten program services in the community; and (9) other relevant criteria specified by department rule. E. A contract with an eligible provider for early pre-kindergarten and pre- kindergarten program services shall provide that funds not be used for any religious, sectarian or denominational purposes, instruction or material. History: Laws 2005, ch. 170, § 6; 2011, ch. 140, § 2; 2019, ch. 48, § 22. ANNOTATIONS The 2019 amendment, effective July 1, 2020, required the early childhood education and care department to solicit the delivery of full-day and half-day early pre-kindergarten and pre-kindergarten program services; in Subsection A, deleted "Each" and added "The", and after "shall", deleted "publish" and added "solicit the delivery of both half-day and full day early pre-kindergarten and pre-kindergarten program services by publishing"; in Subsection B, in the introductory paragraph, deleted "or applications for pre-kindergarten services to the appropriate department. An eligible provider's proposal or application" and added "to the department that", in Paragraph B(1), after "services meet", deleted "children, youth and families department or public education", in Paragraph B(2), after "the number of", deleted "four-year-old" and added "eligible", in Paragraph B(6), after "involving parents", added "of children", and after "in the", added "early pre-kindergarten and"; in Subsection C, deleted "Each" and added "The", after "applications for", deleted "funding for" and added "the delivery of early pre-kindergarten and", and after the next occurrence of "pre-kindergarten", added "program services by eligible providers"; changed "four-year olds" to "eligible children" throughout; in Subsection D, deleted "For funding purposes, applications and proposals shall be evaluated and priority given" and added "In selecting among proposals and applications for the delivery of early pre-kindergarten and pre-kindergarten program services, the department shall give priority to", after each occurrence of "Title", deleted "1" and added "I", deleted former Paragraph D(6) and redesignated former Paragraphs D(7) through D(10) as Paragraphs D(6) through D(9), respectively; in Paragraph D(8), after "local support for", added "early pre-kindergarten and", and in Paragraph D(9), after "specified by", deleted "joint" and added "department", and after "rule", deleted "of the departments"; and in Subsection E, after "contract", deleted "or agreement", and after "eligible provider", added "for early pre-kindergarten and pre-kindergarten program services". The 2011 amendment, effective June 17, 2011, made a distinction between applications and proposals and assigned responsibility for proposals for pre- kindergarten services to the children, youth and families department and applications for pre-kindergarten services to the public education department, and provided that for funding purposes, priority will be given to programs in communities that have a Title 1 school and that have two thirds of the children being served living within the Title 1 school attendance zone. 32A-23-7. Repealed. History: Laws 2005, ch. 170, § 7; repealed by Laws 2019, ch. 48, § 37. ANNOTATIONS Repeals. — Laws 2019, ch. 48, § 37 repealed 32A-23-7 NMSA 1978, as enacted by Laws 2005, ch. 170, § 7, relating to program funding, effective July 1, 2020. For provisions of former section, see the 2019 NMSA 1978 on NMOneSource.com. 32A-23-8. Repealed. History: Laws 2005, ch. 170, § 8; repealed by Laws 2019, ch. 48, § 37. ANNOTATIONS Repeals. — Laws 2019, ch. 48, § 37 repealed 32A-23-5 NMSA 1978, as enacted by Laws 2005, ch. 170, § 8, relating to funds created, administration, effective July 1, 2020. For provisions of former section, see the 2019 NMSA 1978 on NMOneSource.com. 32A-23-9. Equal division of appropriations. Any money appropriated for pre-kindergarten programs shall be divided equally between programs administered by the public schools and other programs licensed by the department. History: Laws 2011, ch. 126, § 1; 2019, ch. 48, § 23. ANNOTATIONS The 2019 amendment, effective July 1, 2020, after "divided equally between", deleted "the public education department and the children, youth and families department" and added "programs administered by the public schools and other programs licensed by the department". 32A-23-10. Mixed delivery of pre-kindergarten programs. Any money appropriated for pre-kindergarten programs shall be distributed for mixed delivery programming. The public education department shall access funds from the early childhood education and care department to support pre-kindergarten in the public education system. Pre-kindergarten funding transfers to public providers shall be processed through the public education department to those public providers that demonstrate adherence to standards developed by the department. History: Laws 2019, ch. 48, § 24. ANNOTATIONS Effective dates. — Laws 2019, ch. 48, § 38 made Laws 2019, ch. 48, § 24 effective July 1, 2020. ARTICLE 23A Early Childhood Care and Education 32A-23A-1. Short title. Chapter 32A, Article 23A NMSA 1978 may be cited as the "Early Childhood Care and Education Act". History: Laws 2011, ch. 123, § 1; 2019, ch. 48, § 25. ANNOTATIONS The 2019 amendment, effective July 1, 2020, changed "This act" to "Chapter 32A, Article 23A NMSA 1978". 32A-23A-2. Definitions. As used in the Early Childhood Care and Education Act: A. "department" means the early childhood education and care department; B. "early childhood" means the period of a person's life from birth to age five; C. "fund" means the early childhood care and education fund; and D. "secretary" means the secretary of early childhood education and care. History: Laws 2011, ch. 123, § 2; 2019, ch. 48, § 26. ANNOTATIONS The 2019 amendment, effective July 1, 2020, deleted the definitions of "council" and "pre-kindergarten", and revised certain definitions as used in the Early Childhood Care and Education Act; deleted former Subsection A, which defined "council", and redesignated former Subsections B through D as Subsections A through C, respectively; in Subsection A, after "means the", deleted "children, youth and families" and added "early childhood education and care"; deleted Subsection E and redesignated former Subsection F as Subsection D; and in Subsection D, after "secretary of", deleted "children, youth and families" and added "early childhood education and care". 32A-23A-3. Findings and purpose. A. The legislature finds that an early childhood care and education system is vital in ensuring that every New Mexico child is eager to learn and ready to succeed by the time that child enters kindergarten, that high-quality early learning experiences have been proven to prepare children for success in school and later in life and that cost- benefit research demonstrates a high return on investment for money spent on early childhood care and education for at-risk children. B. The legislature further finds that, to be successful, an early childhood care and education system should be: (1) developmentally, culturally and linguistically appropriate and include the implementation of program models, standards and curriculum based on research and best practices; (2) data-driven, including the identification and prioritization of communities most at risk while striving to make the system universally available to all those who wish to participate; (3) accountable through developmentally appropriate methods of measuring, reporting and tracking a child's growth and development and the improvement of the system's programs; (4) accessible, especially to those children most at risk for school failure; (5) of the highest possible quality through the utilization of qualified practitioners who have completed specialized training in early childhood growth, development and learning that is specific to the practitioner's role in the system and the maintenance of quality rating methods for the programs in the system; (6) fully aligned within each community to ensure the most efficient and effective use of resources by combining funding sources and supporting seamless transitions for children within the system and for children transitioning into kindergarten; (7) family-centered by recognizing that parents are the first and most important teachers of their children and providing the support and referrals necessary for parents to assume this critical role in their child's development; and (8) a partnership between the state and private individuals or institutions with an interest or expertise in early childhood care and education. C. The purpose of the Early Childhood Care and Education Act is to establish a comprehensive early childhood care and education system through an aligned continuum of state and private programs, including home visitation, early intervention, child care, early head start, head start, early childhood special education, family support and pre-kindergarten, and to maintain or establish the infrastructure necessary to support quality in the system's programs. History: Laws 2011, ch. 123, § 3. ANNOTATIONS Effective dates. — Laws 2011, ch. 123 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 17, 2011, 90 days after the adjournment of the legislature. 32A-23A-4. Repealed. History: Laws 2011, ch. 123, § 4; repealed by Laws 2011, ch. 123, § 7. ANNOTATIONS Repeals. — Laws 2011, ch. 123, § 7 repealed 32A-23A-4 NMSA 1978, as enacted by Laws 2011, ch. 123, § 4, relating to state early learning advisory council creation and membership, effective July 1, 2018. For provisions of former section, see the 2017 NMSA 1978 on NMOneSource.com. 32A-23A-5. Council and department duties. A. The council is designated as the council required pursuant to the federal Improving Head Start for School Readiness Act of 2007. The council shall fulfill all the duties required under the federal act for early childhood care and education. The council shall also lead the development or enhancement of a high-quality, comprehensive system of early childhood development and care that ensures statewide coordination and collaboration among the wide range of early childhood programs and services within the state, including child care, early head start, head start, federal Individuals with Disabilities Education Act programs for preschool, infants and families and pre- kindergarten programs and services. B. The council and department may apply for and accept gifts, grants, donations or bequests for the fund from any source, public or private, and enter into contracts or other transactions with any federal or state agency, any private organization or any other source in furtherance of the purpose of the Early Childhood Care and Education Act. C. In addition to the duties assigned to the council under federal law, the council shall: (1) make recommendations to the department and the legislature on the most efficient and effective way to leverage state and federal funding for early childhood care and education, including on grant applications made by the department to benefit the fund; and (2) make recommendations to the department and the legislature on how to coordinate and align an early childhood care and education system to include child care, pre-kindergarten, home visitation, early head start, head start, early childhood special education, early intervention and family support and to provide New Mexico families with consistent access to appropriate care and education services. In developing recommendations, the council shall: (a) consider how to consolidate and coordinate resources and public funding streams for early childhood care and education and ensure the accountability and coordinated development of all early childhood care and education services; (b) consider a system of seamless transition from prenatal to early childhood programs to kindergarten; (c) take into account a parent's decisive role in the planning, operation and evaluation of programs that aid families in the care and education of children; (d) examine ways to provide consumer education and accessibility to early childhood care and education resources; (e) consider the advancement of quality early childhood care and education programs in order to support the healthy development of children and preparation for their success in school; (f) consider the development of a seamless service delivery system with local points of entry for early childhood care and education programs administered by local, state and federal agencies; (g) ensure effective collaboration with state and local child welfare programs and early childhood health and behavioral health programs; (h) consider how to develop and manage effective data collection systems to support the necessary functions of a coordinated system of early childhood care and education and track children through the education system from prenatal to early childhood to kindergarten to higher education, in order to enable accurate evaluation of the impact of early childhood care and education; (i) focus on the diversity, cultural heritage and strengths of the families and communities of the state; (j) consider the development of an aligned system of professional development for professionals providing early childhood care and education; and (k) consider the establishment of an administrative framework to promote the development of high-quality early childhood care and education services that are staffed by well-qualified professionals and are available in every community for all families that express a need for them. History: Laws 2011, ch. 123, § 5. ANNOTATIONS Effective dates. — Laws 2011, ch. 123 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 17, 2011, 90 days after the adjournment of the legislature. 32A-23A-6. Early childhood care and education fund; created; purpose; administration; grant applications. A. The "early childhood care and education fund" is created as a nonreverting fund in the state treasury. The fund shall be administered by the department and shall consist of gifts, grants, donations and bequests made to the fund. B. Money in the fund is subject to appropriation by the legislature to the department for awarding grants to the council and early childhood care and education providers for carrying out the provisions of the Early Childhood Care and Education Act. C. The department shall adopt rules on qualifications for grants and specify the format, procedure and deadlines for grant applications. For grants to early childhood care and education providers, the council shall review all grant applications and submit those applications recommended for final approval to the secretary. D. Disbursements from the fund shall be made upon vouchers issued and signed by the secretary or the secretary's designee upon warrants drawn by the secretary of finance and administration. History: Laws 2011, ch. 123, § 6. ANNOTATIONS Effective dates. — Laws 2011, ch. 123 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 17, 2011, 90 days after the adjournment of the legislature. 32A-23A-7. Termination of agency life; delayed repeal. The council is terminated on July 1, 2017 pursuant to the provisions of the Sunset Act [12-9-11 to 12-9-21 NMSA 1978]. The council shall continue to operate pursuant to the provisions of Sections 4 [32A-23A-4 NMSA 1978] and 5 [32A-23A-5 NMSA 1978] of the Early Childhood Care and Education Act until July 1, 2018. Effective July 1, 2018, Section 4 of the Early Childhood Care and Education Act is repealed. History: Laws 2011, ch. 123, § 7. ANNOTATIONS Effective dates. — Laws 2011, ch. 123 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 17, 2011, 90 days after the adjournment of the legislature. ARTICLE 23B Home Visiting Accountability 32A-23B-1. Short title. Chapter 32A, Article 23B NMSA 1978 may be cited as the "Home Visiting Accountability Act". History: Laws 2013, ch. 118, § 1; 2019, ch. 48, § 27. ANNOTATIONS The 2019 amendment, effective July 1, 2020, changed "This act" to "Chapter 32A, Article 23B NMSA 1978". 32A-23B-2. Definitions. As used in the Home Visiting Accountability Act: A. "culturally and linguistically appropriate" means appropriate when taking into consideration the culture, customs and language of an eligible family's home; B. "department" means the early childhood education and care department; C. "eligible family" means a family that elects to receive home visiting services and includes: (1) a child, from birth until kindergarten entry; or (2) a pregnant woman, an expectant father, a parent or a primary caregiver; D. "home visiting": (1) means: (a) delivering a variety of informational, educational, developmental, referral and other support services for eligible families who are expecting or who have children who have not yet entered kindergarten and that is designed to promote child well-being and prevent adverse childhood experiences; and (b) providing a comprehensive array of services that promote parental competence and successful early childhood health and development by building long- term relationships with families and optimizing the relationships between parents and children in their home environments; and (2) does not include: (a) provision of case management or a one-time home visit or infrequent home visits, such as a home visit for a newborn child or a child in preschool; (b) home visiting provided as a supplement to other services; or (c) services delivered through an individualized family service plan or an individualized education program under Part B or Part C of the federal Individuals with Disabilities Education Act; E. "home visiting program" means a program that: (1) uses home visiting as a primary service delivery strategy; and (2) offers services on a voluntary basis to pregnant women, expectant fathers and parents and primary caregivers of children from birth to kindergarten entry; F. "home visiting system" means the infrastructure and programs that support and provide home visiting. A "home visiting system": (1) provides universal, voluntary access; (2) provides a common framework for service delivery and accountability across all home visiting programs; (3) establishes a consistent statewide system of home visiting; and (4) allows for the collection, aggregation and analysis of common data; and G. "standards-based program" means a home visiting program that: (1) is research-based and grounded in relevant, empirically based best practices and knowledge that: (a) is linked to and measures the following outcomes: 1) babies are born healthy; 2) children are nurtured by their parents and caregivers; 3) children are physically and mentally healthy; 4) children are ready for school; 5) children and families are safe; and 6) families are connected to formal and informal supports in their communities; (b) has comprehensive home visiting standards that ensure high-quality service delivery and continuous quality improvement; and (c) has demonstrated significant, sustained positive outcomes; (2) follows program standards that specify the purpose, outcomes, duration and frequency of services that constitute the program; (3) follows a research-based curriculum or combinations of research-based curricula, or follows the curriculum of an evidence-based home visiting model or promising approach that the home visiting program has adopted pursuant to department rules defining "evidence-based model" and "promising approach"; (4) employs well-trained and competent staff and provides continual professional supervision and development relevant to the specific program or model being delivered; (5) demonstrates strong links to other community-based services; (6) operates within an organization that ensures compliance with home visiting standards; (7) continually evaluates performance to ensure fidelity to the program standards; (8) collects data on program activities and program outcomes; and (9) is culturally and linguistically appropriate. History: Laws 2013, ch. 118, § 2; 2019, ch. 48, § 28. ANNOTATIONS The 2019 amendment, effective July 1, 2020, revised certain definitions as used in the Home Visiting Accountability Act; and in Subsection B, deleted "children, youth and families" and added "early childhood education and care". 32A-23B-3. Home visiting programs; accountability; exclusions; contracting; reporting. A. The department shall provide statewide home visiting services using a standards-based program and promulgate rules governing the program. B. The department shall fund only standards-based home visiting programs that include periodic home visits to improve the health, well-being and self-sufficiency of eligible families. The department may prioritize funding for programs associated with strong evidence of effectiveness and for programs that serve high-risk populations. C. A home visiting program shall provide culturally and linguistically appropriate, face-to-face visits by nurses, social workers and other early childhood and health professionals or by trained and supervised lay workers. D. A home visiting program shall do two or more of the following: (1) improve prenatal, maternal, infant or child health outcomes, including reducing preterm births; (2) promote positive parenting practices; (3) build healthy parent and child relationships; (4) enhance children's social-emotional and language development; (5) support children's cognitive and physical development; (6) improve the health of eligible families; (7) provide resources and supports that may help to reduce child maltreatment and injury; (8) increase children's readiness to succeed in school; and (9) improve coordination of referrals for, and the provision of, other community resources and supports for eligible families. E. The department shall develop internal processes that provide for a greater ability to collaborate with other state agencies, local governments and private entities and share relevant home visiting data and information. The processes may include a uniform format for the collection of data relevant to each home visiting program. F. The department shall enter into a joint powers agreement with the human services department [health care authority department] to use medicaid to finance department-approved, evidence-based home visiting programs. Providers approved for medicaid home visiting are subject to the Home Visiting Accountability Act. G. When the department authorizes funds through payments, contracts or grants that are used for home visiting programs, it shall include language regarding home visiting in its funding agreement contract or grant that is consistent with the provisions of the Home Visiting Accountability Act. H. Beginning January 1, 2020 and annually thereafter, the department shall submit to the governor and the legislature an annual outcomes report that includes: (1) the goals and achieved outcomes of the home visiting system implemented pursuant to the Home Visiting Accountability Act; and (2) data regarding: (a) the cost per eligible family served; (b) the number of eligible families served; (c) demographic data on eligible families served; (d) the duration of participation by eligible families in the program; (e) the number and type of programs that the department has funded; (f) any increases in school readiness, child development and literacy; (g) decreases in child maltreatment or child abuse; (h) any reductions in risky parental behavior; (i) the percentage of children receiving regular well-child exams, as recommended by the American academy of pediatrics; (j) the percentage of infants on schedule to be fully immunized by age two; (k) the number of children who received an ages and stages questionnaire and what percent scored age appropriately in all developmental domains; (l) the number of children identified with potential developmental delay and, of those, how many began services within two months of the screening; and (m) the percentage of children receiving home visiting services who are enrolled in high-quality licensed child care programs. History: Laws 2013, ch. 118, § 3; 2019, ch. 48, § 29. ANNOTATIONS Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Laws 2023, ch. 205, § 16 provided that references to the human services department shall be deemed to be references to the health care authority department. The 2019 amendment, effective July 1, 2020, authorized the early childhood education and care department to prioritize funding for programs associated with strong evidence of effectiveness and programs that serve high-risk populations, required the department to enter into a joint powers agreement with the human services department to use medicaid to finance department-approved home visiting programs, and required the department to submit an annual report to the governor and the legislature regarding the home visiting system implemented pursuant to the Home Visiting Accountability Act; in Subsection B, added the last sentence; in Subsection E, after "department shall", deleted "work with the early learning advisory council and"; added a new Subsection F and redesignated former Subsection F as Subsection G; deleted former Subsection G, which related to home visiting program evaluation; and in Subsection H, changed "2014" to "2020", after "department shall", deleted "produce an annual outcomes report" and added "submit", and after "the legislature", deleted "and the early learning advisory council". ARTICLE 23C Early Childhood Care Accountability 32A-23C-1. Short title. This act [32A-23C-1 to 32A-23C-5 NMSA 1978] may be cited as the "Early Childhood Care Accountability Act". History: Laws 2018, ch. 44, § 1. ANNOTATIONS Effective dates. — Laws 2018, ch. 44 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 16, 2018, 90 days after the adjournment of the legislature. 32A-23C-2. Definitions. As used in the Early Childhood Care Accountability Act: A. "child care assistance" means the assistance administered by the department that provides child care through the child care assistance program for school-aged children as the primary service delivery strategy through a contract with the department that offers services based on income and need for care to parents with children who are school-aged, as department rules define "school-aged"; B. "culturally and linguistically appropriate" means taking into consideration the culture, customs and language of an eligible family; C. "early childhood care assistance" means assistance administered by the department that provides child care through the child care assistance program for children under five years of age as the primary service delivery strategy through a contract with the department and that offers services based on income criteria and need for care to parents with children who have not yet entered kindergarten; D. "eligible family" means a family that receives early childhood care assistance or child care assistance through the department; E. "licensed child care program" means a publicly or privately funded program that: (1) provides child care in the state in accordance with department standards to school-aged children, as department rules define "school-aged"; and (2) is licensed by the department; F. "licensed early childhood care program" means a publicly or privately funded program that provides child care in accordance with department standards to children under five years of age in the state and that is licensed by the department; and G. "licensed exempt child care program" means a child care home or facility that is exempt from child care licensing requirements pursuant to the Public Health Act [Chapter 24, Article 1 NMSA 1978]. History: Laws 2018, ch. 44, § 2. ANNOTATIONS Effective dates. — Laws 2018, ch. 44 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 16, 2018, 90 days after the adjournment of the legislature. 32A-23C-3. Licensed early childhood care programs; requirements. A. The department shall adopt and promulgate rules to establish specific standards for licensure and registration of licensed early childhood care programs that provide care for children from birth to five years of age. As part of these standards, the department shall establish and implement a voluntary rating scale and determine levels that accord with levels of service quality. The standards shall ensure that the health, safety, social-emotional support, school readiness and staff qualifications components are consistent in accordance with the tier levels that the department has established by rule. The department shall use the tiered ratings it has established to pay higher rates for higher-rated individual licensed early childhood care program providers. Standards for licensed early childhood care programs shall: (1) specify the purpose and outcomes of services that constitute the program; (2) define high-quality service delivery and continuous quality improvement; (3) provide a common framework for early childhood care service delivery and accountability across all early childhood care programs; (4) be designed to promote child well-being, early education, social-emotional support and an emphasis on school readiness; (5) allow for the collection, aggregation and analysis of common data; (6) be grounded in best practices geared toward optimal health and developmental outcomes; and (7) establish foundational and continuing education requirements for staff. B. A licensed early childhood care program shall: (1) ensure the health and safety of children while they are in care; (2) comply with the department's background check requirements for all staff members, educators and volunteers in licensed early childhood care programs; (3) provide positive discipline and guidance; (4) continually evaluate program performance; (5) collect data on program activities and outcomes for reporting in accordance with the tier levels that the department has established in rule, pursuant to Section 4 [32A-23C-4 NMSA 1978] of the Early Childhood Care Accountability Act; (6) be culturally and linguistically appropriate; (7) measure the promotion of positive development and appropriate early childhood educational practices, in accordance with the tier levels that the department has established in rule, pursuant to Section 4 of the Early Childhood Care Accountability Act; (8) ensure that enrolled children are up-to-date with immunizations, in accordance with state law; (9) train staff on reporting any suspected child abuse and neglect to the department's protective services division and to local authorities; (10) ensure that the program has established and shared with parents a curriculum statement that supports school readiness; and (11) follow a curriculum that is aligned with child development functional areas, including the New Mexico early learning guidelines, in accordance with the tier levels that the department has established by rule. History: Laws 2018, ch. 44, § 3. ANNOTATIONS Effective dates. — Laws 2018, ch. 44 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 16, 2018, 90 days after the adjournment of the legislature. 32A-23C-4. Licensed early childhood care programs; reporting. Beginning December 31, 2019 and annually thereafter, the department shall produce an annual outcomes report for the legislature and the governor that includes: A. the goals and achieved outcomes of the licensed early childhood care program standards implemented pursuant to the Early Childhood Care Accountability Act; and B. the following data: (1) the number of substantiated incidents and substantiated complaints received for each licensed early childhood care program rating level; (2) the income levels of eligible families statewide receiving early childhood care assistance; (3) the stated reasons that eligible families have applied for early childhood care assistance; (4) the percentage of children receiving early childhood care assistance by quality level and provider type; (5) the average annual enrollment in early childhood care assistance; (6) the percentage of children participating in early childhood care assistance who have one or more substantiated child abuse cases while participating in early childhood care assistance; (7) by rating level, any evidence of an increase in school readiness, child development and literacy among children receiving early childhood care assistance; (8) the number and type of licensed early childhood care programs statewide; (9) the capacity in licensed early childhood care programs by rating level; (10) the number of children enrolled in licensed early childhood care programs who participate in the child and adult care food program; (11) the percentage of children enrolled in licensed early childhood care programs receiving health and developmental screenings or assessments in accordance with department rules; and (12) the percentage of children enrolled in licensed early childhood care programs who have received health or developmental screenings or assessments as department rules require who are referred to services. History: Laws 2018, ch. 44, § 4. ANNOTATIONS Effective dates. — Laws 2018, ch. 44 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 16, 2018, 90 days after the adjournment of the legislature. 32A-23C-5. Applicability. The provisions of this act [32A-23C-1 to 32A-23C-5 NMSA 1978] shall not be construed to apply to the licensure or regulation of child care assistance, any licensed child care program or licensed exempt child care program. History: Laws 2018, ch. 44, § 5. ANNOTATIONS Effective dates. — Laws 2018, ch. 44 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 16, 2018, 90 days after the adjournment of the legislature. ARTICLE 24 Child Helmet Safety 32A-24-1. Short title. This act [Chapter 32A, Article 24 NMSA 1978] may be cited as the "Child Helmet Safety Act". History: Laws 2007, ch. 66, § 1. ANNOTATIONS Effective dates. — Laws 2007, ch. 66, § 6 made the act effective July 1, 2007. 32A-24-2. Definitions. As used in the Child Helmet Safety Act: A. "bicycle" means a human-powered vehicle with two wheels in tandem designed to transport, by the act of pedaling, one or more persons seated on one or more saddle seats on its frame and includes an electric-assisted bicycle and a human-powered vehicle designed to transport by the act of pedaling, which has more than two wheels when the vehicle is used on a public roadway, public bicycle path or other public road or right of way, including a tricycle; B. "electric-assisted bicycle" means a bicycle with fully operable pedals and an electric motor not exceeding seven hundred fifty watts of power; C. "minor" means a person under eighteen years of age; D. "operator" means a person under eighteen years of age who travels on a bicycle seated on a saddle seat from which that person is intended to and can pedal the bicycle, or who propels the person's self by way of using inline skates, roller skates, a skateboard or a scooter; E. "passenger" means a person under eighteen years of age who travels on a bicycle or scooter in any manner except as an operator; F. "protective helmet" means a piece of headgear that meets or exceeds the impact standard for protective helmets set by the United States consumer product safety commission federal safety standard and those standards developed by the American national standards institute, the Snell memorial foundation or the American society for testing and materials; G. "public bicycle path" means a right of way under the jurisdiction and control of the state or a local political subdivision for use primarily by bicyclists and pedestrians; H. "public roadway" means a right of way under the jurisdiction and control of the state or a local political subdivision for use primarily by motor vehicular traffic; I. "public skateboard park" means an area of public property set aside, designed and maintained for recreation by persons using bicycles, scooters, skateboards or skates; J. "scooter" means a wheeled vehicle, regardless of the number or placement of those wheels, that has handlebars, designed to be stood on by the operator or passenger and used to glide or propel the operator or passenger over the ground; K. "skateboard" means a set of wheels attached to a platform or flat surface, regardless of the number or placement of those wheels, and used to glide or propel the operator over the ground; and L. "skates" means a pair of devices worn on the feet with a set of wheels attached and used to glide or propel the user over the ground and may be either inline or roller, but "skates" does not include a pair of devices, similar to a pair of common shoes, that has one or more wheels embedded in the sole of each device. History: Laws 2007, ch. 66, § 2; 2023, ch. 93, § 1. ANNOTATIONS The 2023 amendment, effective July 1, 2023, defined "electric-assisted bicycle" and revised the definition of "bicycle"; in Subsection A, after "includes", added "an electric- assisted bicycle and"; and added a new Subsection B and redesignated former Subsections B through K as Subsections C through L, respectively. 32A-24-3. Helmet use requirements; civil penalty. A. It is unlawful for a parent or legal guardian of a minor to knowingly permit that minor to operate or be a passenger on a bicycle, skates, scooter or skateboard unless that minor wears a well-fitted protective bicycle helmet, fastened securely upon the head with the straps of the helmet. B. Except as provided in Subsection C of this section, a parent or legal guardian found guilty of violating Subsection A of this section shall pay a civil penalty of not more than ten dollars ($10.00). Magistrate and municipal courts shall have concurrent jurisdiction. C. If a violation of Subsection A of this section is a first offense, the magistrate or municipal court may issue a verbal warning or require, in lieu of the fine imposed in Subsection B of this section, that the person found in violation provide proof that a protective helmet has been purchased for use by the minor found on the bicycle, skates, scooter or skateboard without a protective helmet. D. A municipal court may issue only a verbal warning for a first or later violation. History: Laws 2007, ch. 66, § 3. ANNOTATIONS Effective dates. — Laws 2007, ch. 66, § 6 made the act effective July 1, 2007. 32A-24-4. Equipment sales or rentals. A person engaged in the business of renting bicycles, skates, scooters or skateboards shall provide a protective helmet to a minor who will be an operator of or passenger on a rented bicycle, skates, scooter or skateboard if the minor does not already have a helmet in the minor's possession. A reasonable fee may be charged for the protective helmet rental. History: Laws 2007, ch. 66, § 4. ANNOTATIONS Effective dates. — Laws 2007, ch. 66, § 6 made the act effective July 1, 2007. 32A-24-5. Negligence. Failure to wear a protective helmet shall not limit or apportion damages. History: Laws 2007, ch. 66, § 5. ANNOTATIONS Effective dates. — Laws 2007, ch. 66, § 6 made the act effective July 1, 2007. ARTICLE 25 Carlos Vigil Memorial 32A-25-1. Short title. This act [32A-25-1 to 32A-25-5 NMSA 1978] may be cited as the "Carlos Vigil Memorial Act" in honor of Carlos Vigil. History: Laws 2015, ch. 132, § 1. ANNOTATIONS Effective dates. — Laws 2015, ch. 132 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 19, 2015, 90 days after the adjournment of the legislature. 32A-25-2. Purposes. The purposes of the Carlos Vigil Memorial Act are to: A. cultivate a statewide culture where bullying is not accepted; B. educate New Mexicans about recognizing bullying behaviors and understanding the potential consequences of bullying; and C. provide grants for providers of services and programs for the prevention, resolution and eradication of bullying statewide. History: Laws 2015, ch. 132, § 2. ANNOTATIONS Effective dates. — Laws 2015, ch. 132 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 19, 2015, 90 days after the adjournment of the legislature. 32A-25-3. Carlos Vigil memorial board; created. A. The "Carlos Vigil memorial board" is created to review grant applications and to award grants from the eradicate bullying fund. B. The board consists of five voting members who together provide diverse experience and expertise in: (1) administering or delivering services in an organization focused on preventing bullying or suicide; (2) administering or delivering services in an organization focused on providing counseling and support services to victims and perpetrators of bullying; (3) professional development workshops on the topic of bullying or suicide prevention; (4) coalescing and leading communities; or (5) administering or delivering public health services. C. Board appointments shall be as follows: (1) one member shall be appointed by the president pro tempore of the senate; (2) one member shall be appointed by the minority floor leader of the senate; (3) one member shall be appointed by the speaker of the house of representatives; (4) one member shall be appointed by the minority floor leader of the house of representatives; and (5) one member shall be appointed by the governor from department of health staff. D. The chair of the board shall be elected by a quorum of the board members. The board shall meet at the call of the chair or whenever two members submit a request in writing to the chair, but not less often than once each calendar year. A majority of members constitutes a quorum for the transaction of business. The affirmative vote of a majority of a quorum present shall be necessary for an action to be taken by the board. E. Members of the board shall be appointed to two-year terms. Vacancies shall be filled by appointment by the governor for the remainder of the unexpired term. Any member of the board shall be eligible for reappointment. F. Public members of the board may be paid per diem and mileage as provided for nonsalaried officers in the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] but shall receive no other compensation, perquisite or allowance. History: Laws 2015, ch. 132, § 3. ANNOTATIONS Effective dates. — Laws 2015, ch. 132 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 19, 2015, 90 days after the adjournment of the legislature. 32A-25-4. Carlos Vigil memorial board; duties. The Carlos Vigil memorial board shall: A. adopt and promulgate rules governing the acceptance, evaluation and prioritization of applications for grants, including applicant qualifications and the format, procedure and deadlines for grant applications; B. review grant applications from public agencies and institutions and nonprofit private entities that indicate the qualifications and expertise to provide services for the prevention, resolution and eradication of bullying; C. process, evaluate and prioritize applications based on the criteria delineated in the board's rules; and D. award grants to the most qualified grant applicants and reach a broad spectrum of New Mexicans. History: Laws 2015, ch. 132, § 4. ANNOTATIONS Effective dates. — Laws 2015, ch. 132 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 19, 2015, 90 days after the adjournment of the legislature. 32A-25-5. Eradicate bullying fund created; grant application review. A. The "eradicate bullying fund" is created in the state treasury. The fund shall be administered by the board of regents of the university of New Mexico. Money in the fund is appropriated to the board of regents of the university of New Mexico for disbursement to grant recipients selected by the Carlos Vigil memorial board. B. The fund shall consist of: (1) money appropriated by the legislature to carry out the purposes of the Carlos Vigil Memorial Act; (2) grants, gifts, donations and bequests to the fund; and (3) earnings from investment of the money in the fund. C. Disbursements from the fund shall be made by warrant of the secretary of finance and administration pursuant to vouchers signed by the president of the board of regents of the university of New Mexico or the president's designee. D. Unexpended and unencumbered balances in the fund shall not revert to the general fund at the end of a fiscal year. E. An applicant may apply for a grant from the fund in accordance with rules promulgated by the Carlos Vigil memorial board. Allocations from the fund shall be based on a competitive process with applications reviewed by the board. History: Laws 2015, ch. 132, § 5. ANNOTATIONS Effective dates. — Laws 2015, ch. 132 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 19, 2015, 90 days after the adjournment of the legislature. ARTICLE 26 Fostering Connections 32A-26-1. Short title. Chapter 32A, Article 26 NMSA 1978 may be cited as the "Fostering Connections Act". History: Laws 2019, ch. 149, § 1; 2020, ch. 52, § 3. ANNOTATIONS The 2020 amendment, effective May 20, 2020, changed "Sections 1 through 10 of this act" to "Chapter 32A, Article 26 NMSA 1978". Temporary provisions. — Laws 2019, ch. 149, § 14 provided: A. By October 1, 2020, the children, youth and families department shall: (1) submit an amendment to the state plan to seek federal funding for newly eligible adults for whom an adoption subsidy or a guardianship assistance agreement was in effect if the child had attained sixteen years of age before the agreement became effective or for whom a state-funded guardianship assistance agreement was in effect if the youth had attained sixteen years of age before the agreement became effective; (2) implement the fostering connections program pursuant to the provisions of the Fostering Connections Act and maximize the children, youth and families department's access to federal funds for extended guardianship assistance and extended adoption assistance for the benefit of eligible adults participating in the fostering connections program; and (3) adopt and promulgate rules as needed to carry out the provisions of the Fostering Connections Act. B. As used in this section, "eligible adult" means an individual who meets the eligibility criteria for participating in the fostering connections program. Laws 2019, ch. 149, § 15 provided that the secretary of children, youth and families shall convene a work group composed of experts in children's services and juvenile justice to collect information and make recommendations on including in the fostering connections program youth who have been adjudicated under the Delinquency At. The work group shall examine and report to the secretary of children, youth and families and the legislature by November 1, 2019; A. the potential number of young adults who could be included in the fostering connections program; B. the processes by which young adults eligible to participate in the fostering connections program could be identified; C. procedures for assisting young adults to become eligible for the fostering connections program; and D. the potential placement and service array that would be required for including young adults who have been adjudicated under the Delinquency Act in the fostering connections program. 32A-26-2. Definitions. As used in the Fostering Connections Act: A. "active efforts" means a heightened standard that is greater than reasonable efforts that include affirmative, active, thorough and timely efforts; B. "eligible adult" means an individual who meets the eligibility criteria for participation in the fostering connections program; C. "foster care maintenance payment" means a payment for the care and support of an eligible adult, which is based on the needs of the eligible adult; D. "host home" means a setting in an eligible adult's former foster home or in another residence in which an eligible adult: (1) shares a residence with another adult or adults; and (2) agrees to meet the basic expectations established by the: (a) eligible adult; (b) other adult or adults sharing the residence; and (c) department; E. "placement and care" means the day-to-day care and protection of the child or eligible adult, including responsibility for placement decisions about the child or eligible adult; F. "supervised independent living setting" means an age-appropriate setting that the department approves for placement of an eligible adult, which setting: (1) is consistent with federal law and guidance for a supervised setting in which an eligible adult lives independently; and (2) may be a residence where the eligible adult lives alone or shares a residence with others, including: (a) a host home; (b) a college dormitory or other post-secondary education or training housing; or (c) the home of a parent of the eligible adult; G. "transition plan" means a written, individualized plan developed collaboratively between the department and the eligible adult that assesses the eligible adult's strengths and needs, establishes goals and identifies the services and activities that will be provided to the eligible adult to achieve the established goals, the time frames for achieving the goals and the individuals or entities responsible for providing the identified services and activities as provided by rule; H. "voluntary services and support agreement" means a written agreement, binding on the parties to the agreement, between the department and an eligible adult, which agreement is consistent with the requirements of a voluntary placement agreement pursuant to federal law and which specifies, at a minimum, the legal status of the eligible adult and the rights and obligations of the eligible adult and the department while the eligible adult is participating in the fostering connections program; and I. "young adult" means an individual who is at least eighteen years of age and who is under twenty-one years of age and is not currently participating in the fostering connections program pursuant to Section 32A-26-3 NMSA 1978. History: Laws 2019, ch. 149, § 2; 2020, ch. 52, § 4. ANNOTATIONS The 2020 amendment, effective May 20, 2020, added definitions for "active efforts" and "placement and care" and revised the meaning of certain terms as used in the Fostering Connections Act; added a new Subsection A and redesignated former Subsections A through C as Subsections B through D, respectively; in Subsection C, after "which", deleted "payment rate is established through legislative appropriation and"; added a new Subsection E and redesignated former Subsections D through G as Subsections F through I, respectively; in Subsection F, Paragraph F(1), deleted "conforms to federal requirements for supervised independent living settings" and added "is consistent with federal law and guidance for a supervised setting in which an eligible adult lives independently", in Paragraph F(2), after "may be", deleted "single or shared", and after "residence", added "where the eligible adult lives alone or shares a residence with others"; in Subsection G, in the introductory clause, after "eligible adult that", deleted "identifies the", deleted former Paragraphs (1) and (2) and added the remainder of the subsection; in Subsection H, after "which agreement", added "is consistent with the requirements of a voluntary placement agreement pursuant to federal law and which"; and in Subsection I, after "twenty-one years of age", added "and is not currently participating in the fostering connections program pursuant to Section 32A-26-3 NMSA 1978". Temporary provisions. — Laws 2019, ch. 149, § 14 provided: A. By October 1, 2020, the children, youth and families department shall: (1) submit an amendment to the state plan to seek federal funding for newly eligible adults for whom an adoption subsidy or a guardianship assistance agreement was in effect if the child had attained sixteen years of age before the agreement became effective or for whom a state-funded guardianship assistance agreement was in effect if the youth had attained sixteen years of age before the agreement became effective; (2) implement the fostering connections program pursuant to the provisions of the Fostering Connections Act and maximize the children, youth and families department's access to federal funds for extended guardianship assistance and extended adoption assistance for the benefit of eligible adults participating in the fostering connections program; and (3) adopt and promulgate rules as needed to carry out the provisions of the Fostering Connections Act. B. As used in this section, "eligible adult" means an individual who meets the eligibility criteria for participating in the fostering connections program. 32A-26-3. Fostering connections program; eligibility. A. The "fostering connections program" is established in the department. The department shall make the fostering connections program available, on a voluntary basis, to an eligible adult who: (1) has attained at least eighteen years of age and who is younger than: (a) as of July 1, 2020, nineteen years of age; (b) as of July 1, 2021, twenty years of age; and (c) after July 1, 2022, twenty-one years of age; (2) meets one of the following criteria: (a) has attained at least eighteen years of age and: 1) was adjudicated pursuant to the Children's Code or its equivalent under tribal law; 2) was subject to a court order that placement and care be the responsibility of the department or the Indian tribe that entered into an agreement with the department; and 3) was subject to an out- of-home placement order; or (b) attained at least fourteen years of age when a guardianship assistance agreement or adoption assistance agreement was in effect and whose guardianship assistance agreement or adoption assistance agreement was terminated or the guardian or parents are no longer willing to provide emotional or financial support after the child attained eighteen years of age; (3) is: (a) completing secondary education or an educational program leading to an equivalent credential; (b) enrolled in an institution that provides post-secondary or vocational education; (c) employed for at least eighty hours per month; (d) participating in a program or activity designed to promote employment or remove barriers to employment; or (e) incapable of doing any of the activities described in Subparagraphs (a) through (d) of this paragraph due to a medical or behavioral condition that is supported by regularly updated information in the transition plan; and (4) enters into a voluntary services and support agreement with the department pursuant to the Fostering Connections Act. B. The citizenship or immigration status of a young adult shall not be a factor when determining the young adult's eligibility pursuant to this section. History: Laws 2019, ch. 149, § 3; 2020, ch. 52, § 5. ANNOTATIONS The 2020 amendment, effective May 20, 2020, revised the criteria for an eligible adult to participate in the fostering connections program; in Subsection A, Subparagraph A(1)(c), deleted "as of" and added "after", deleted former Paragraph A(2) and added a new Paragraph A(2), in Subparagraph A(3)(e), after "behavioral condition", deleted "which incapacity" and added "that", and after "information in the", deleted "case" and added "transition". Temporary provisions. — Laws 2019, ch. 149, § 14 provided: A. By October 1, 2020, the children, youth and families department shall: (1) submit an amendment to the state plan to seek federal funding for newly eligible adults for whom an adoption subsidy or a guardianship assistance agreement was in effect if the child had attained sixteen years of age before the agreement became effective or for whom a state-funded guardianship assistance agreement was in effect if the youth had attained sixteen years of age before the agreement became effective; (2) implement the fostering connections program pursuant to the provisions of the Fostering Connections Act and maximize the children, youth and families department's access to federal funds for extended guardianship assistance and extended adoption assistance for the benefit of eligible adults participating in the fostering connections program; and (3) adopt and promulgate rules as needed to carry out the provisions of the Fostering Connections Act. B. As used in this section, "eligible adult" means an individual who meets the eligibility criteria for participating in the fostering connections program. Laws 2019, ch. 149, § 15 provided that the secretary of children, youth and families shall convene a work group composed of experts in children's services and juvenile justice to collect information and make recommendations on including in the fostering connections program youth who have been adjudicated under the Delinquency At. The work group shall examine and report to the secretary of children, youth and families and the legislature by November 1, 2019; A. the potential number of young adults who could be included in the fostering connections program; B. the processes by which young adults eligible to participate in the fostering connections program could be identified; C. procedures for assisting young adults to become eligible for the fostering connections program; and D. the potential placement and service array that would be required for including young adults who have been adjudicated under the Delinquency Act in the fostering connections program. 32A-26-4. Fostering connections program; services; supports. A. The fostering connections program shall provide at least the following services and supports to eligible adults: (1) major medical and behavioral health care coverage; (2) housing, in one of the following settings that the eligible adult chooses: (a) a supervised independent living setting; (b) a transitional living program that the department licenses or approves; or (c) a residential facility or another institution; provided that an eligible adult who is residing in a residential facility upon leaving foster care may choose to temporarily stay until the eligible adult is able to transition to a more age-appropriate setting; (3) foster care maintenance payments; provided that these payments: (a) shall be sent by the department, all or in part, directly to: 1) the eligible adult, if the eligible adult is living in a supervised independent living setting; or 2) a transitional living program, if the eligible adult is living in a transitional living program; and (b) shall reflect the eligible adult's status as a parent, if applicable; and (4) services that include the development of a transition plan, developed jointly by the department and the eligible adult, that includes a description of the identified housing situation or living arrangement, and the resources to assist the eligible adult in the transition from the fostering connections program to adulthood. The services shall include assisting the eligible adult in effectuating each element of a transition plan. B. The department shall not require background checks for other residents of a supervised independent living setting or a transitional living program as a condition of approving an eligible adult's living setting. C. The department shall develop procedures to provide extended subsidies to families for adoption and guardianship until the eligible adult turns twenty-one years of age if: (1) an adoption assistance or guardianship assistance agreement was in effect for the eligible adult when the eligible adult was sixteen years of age or older; and (2) when at least eighteen years of age and under twenty-one years of age, the eligible adult meets at least one of the following participation criteria: (a) completing secondary education or an educational program leading to an equivalent credential; (b) enrolled in an institution that provides post-secondary or vocational education; (c) participating in a program or activity designed to promote employment or remove barriers to employment; (d) employed for at least eighty hours per month; or (e) is incapable of doing any of the activities described in Subparagraphs (a) through (d) of this paragraph due to a medical or behavioral condition that is supported by regularly updated information in the transition plan. History: Laws 2019, ch. 149, § 4; 2020, ch. 52, § 6. ANNOTATIONS The 2020 amendment, effective May 20, 2020, revised the fostering connections program services, and clarified duties of and services provided by the children, youth and families department; in Subsection A, Subparagraph A(2)(c), after "provided that", deleted "1) except as provided pursuant to Item 2) of this subparagraph", and after "age-appropriate setting", deleted "and 2) if the court finds that an eligible adult’s developmental level, disability or other condition indicates placement in a residential facility or another institution due to an eligible adult’s developmental level, disability or other condition, the eligible adult shall be placed in a residential facility or another institution until the court deems that the eligible adult may be appropriately placed in another setting", in Subparagraph A(3)(a), deleted "may" and added "shall", in Paragraph A(4), deleted "case management" preceding each occurrence of "services", after "development of a", deleted "case" and added "transition", and after "assisting the eligible adult in" added "effectuating each element of a transition plan", and deleted former Subparagraphs A(4)(a) through A(4)(n); in Subsection B, after "independent living setting", added "or a transitional living program", and after "eligible adult's", deleted "supervised independent"; and in Subsection C, Paragraph C(2), deleted "between the ages of eighteen and" and added "when at least eighteen years of age and under", and in Subparagraph C(2)(e), after "behavioral condition", added "that is supported by regularly updated information in the transition plan". 32A-26-5. Fostering connections program; participation; voluntary services and support agreement; periodic reviews. A. An eligible adult may participate in the fostering connections program for any duration of time by entering into a voluntary services and support agreement immediately upon turning eighteen years of age or any time thereafter. B. There is no limit to the number of times an eligible adult may opt out of and reenter the fostering connections program. C. When an eligible adult elects to participate in the fostering connections program, the department and the eligible adult shall execute, and the eligible adult shall be provided with a signed copy of, a voluntary services and support agreement that sets forth, at a minimum, the following: (1) a requirement that the eligible adult continue to be eligible in accordance with the Fostering Connections Act for the duration of the voluntary services and support agreement; (2) the services and support that the eligible adult will receive through the fostering connections program; (3) the voluntary nature of the eligible adult's participation and the eligible adult's right to terminate the voluntary services and support agreement at any time; and (4) conditions that may result in the termination of the voluntary services and support agreement and the eligible adult's early discharge from the fostering connections program pursuant to Section 32A-26-6 NMSA 1978. D. As soon as possible and no later than forty-five days after the eligible adult and the department execute the voluntary services and support agreement, the department shall conduct a determination of income eligibility for purposes of compliance with federal foster care and transitional care assistance; provided that within fifteen days after execution of the voluntary services and support agreement, the department shall provide those services and supports set forth in that agreement. E. The department shall assign an eligible adult a case manager, who shall be trained in primarily providing services for transition-aged eligible adults. F. The department shall make active efforts to assist eligible adults in achieving permanency and creating permanent connections. G. The department and at least one person who is not responsible for case management, in collaboration with the eligible adult and additional persons identified by the eligible adult, shall conduct periodic reviews of the transition plan not less than once every one hundred eighty days to evaluate progress made toward meeting the goals set forth in the transition plan. The department shall use a team approach in conducting periodic reviews of the transition plan and shall facilitate the participation of the eligible adult. H. The department shall hold the periodic review of the transition plan no more than thirty days before and no less than five days before each review hearing. History: Laws 2019, ch. 149, § 5; 2020, ch. 52, § 7. ANNOTATIONS The 2020 amendment, effective May 20, 2020, provided that there is no limit to the number of times an eligible adult may opt out of and reenter the fostering connections program, and required the department to hold the periodic review of the transition plan no more than thirty days before and no less than five days before each review hearing; in Subsection A, after "duration of time", deleted "while the eligible adult is between eighteen and twenty-one years of age"; added a new Subsection B and redesignated former Subsections B through F as Subsections C through G, respectively; in Subsection C, Paragraph C(4), changed "Section 6 of the Fostering Connections Act" to "Section 32A-26-6"; in Subsection F, after "shall", deleted "provide reasonable" and added "make active", and after "permanent connections", deleted "after the age of eighteen"; and added Subsection H. 32A-26-6. Termination of voluntary services and support agreement; notice; procedure. A. An eligible adult may choose to terminate the voluntary services and support agreement and stop receiving services and support under the fostering connections program at any time. If an eligible adult chooses to terminate the voluntary services and support agreement, the department shall provide the eligible adult with a clear and developmentally appropriate written notice informing the eligible adult of: (1) the potential negative effects of terminating the voluntary services and support agreement early; (2) the option to reenter the fostering connections program at any time before attaining twenty-one years of age, so long as the eligibility requirements are met; (3) the procedures for reentering the fostering connections program; and (4) information about and contact information for community resources that may benefit the eligible adult. B. As part of the case management processes, the department shall identify as soon as possible any barriers to maintaining eligibility that an eligible adult is encountering and shall make active efforts to assist the eligible adult to overcome identified barriers and maintain eligibility. The department's efforts shall be documented in the transition plan. C. Academic breaks in post-secondary education attendance, such as semester and seasonal breaks, and other transitions between status that meet eligibility requirements, including education and employment transitions of no longer than thirty days, shall not be a basis for termination. D. If the department determines that a young adult is no longer eligible for the fostering connections program, the department shall: (1) no more than fifteen days after the determination and prior to requesting a discharge hearing, provide to the young adult and the young adult's attorney a clear and developmentally appropriate: (a) written notice informing the young adult of the department's intent to terminate the voluntary services and support agreement; and (b) explanation of the basis for the termination; and (2) make active efforts to meet in person with the young adult to explain the information in the written termination notice and to assist the young adult in reestablishing eligibility if the young adult wishes to continue participating in the program. E. The department shall not terminate services under the fostering connections program without court approval after a discharge hearing. F. If an eligible adult remains in the fostering connections program until attaining twenty-one years of age, at least sixty days before the eligible adult's twenty-first birthday, the department shall provide the eligible adult with: (1) a clear and developmentally appropriate written notice informing the eligible adult of the termination of the voluntary services and support agreement at twenty-one years of age; (2) an updated plan with ongoing goals; and (3) information about and contact information for community resources that may benefit the young adult, including information regarding state programs established pursuant to federal law that provide transitional foster care assistance to young adults. History: Laws 2019, ch. 149, § 6; 2020, ch. 52, § 8. ANNOTATIONS The 2020 amendment, effective May 20, 2020, provided additional duties for the children, youth and families department in assisting eligible adults under the fostering connections program; in the section heading, deleted "appeal"; in Subsection B, after "shall make", deleted "all reasonable" and added "active", after "efforts to", deleted "address those barriers" and added "assist the eligible adult to overcome identified barriers and maintain eligibility", and preceding "plan", deleted "case" and added "transition"; in Subsection D, Paragraph D(1), in the introductory clause, added "no more than fifteen days after the determination and prior to requesting a discharge hearing", and after "young adult", added "and the young adult’s attorney", and in Paragraph D(2), after "make", deleted "reasonable" and added "active"; in Subsection E, after "court approval", added "after a discharge hearing"; and in Subsection F, added new paragraph designations "(1)" through "(3)", in Paragraph F(1), after "twenty-one years of age", deleted "the transition plan requirement", and in Paragraph F(2), added "an updated plan with ongoing goals". 32A-26-7. Fostering connections program; children's court petition; jurisdiction; contents; program file. A. An eligible adult participating in the fostering connections program shall remain under the jurisdiction of the children's court while participating in the program. The eligible adult is the eligible adult's own legal custodian. B. Within fifteen days after the voluntary services and support agreement is executed, the department shall file a petition initiating proceedings pursuant to the Fostering Connections Act that shall be entitled, "In the Matter of . . . . . . . . . , an eligible adult", and shall set forth with specificity: (1) the name, birth date and residence of the eligible adult; and (2) the facts necessary to invoke the jurisdiction of the court. C. A petition filed pursuant to Subsection B of this section shall be accompanied by a copy of the eligible adult's voluntary services and support agreement and transition plan. D. There shall be no interruption in the foster care maintenance payment, housing, medical assistance coverage or case management for an eligible adult who is eligible and chooses to participate in the fostering connections program immediately following the termination of children's court jurisdiction at age eighteen. E. At the inception of a fostering connections proceeding, the court shall appoint an attorney to represent the eligible adult. If the eligible adult consents, the attorney who previously served as the eligible adult's attorney may be appointed. F. Until excused by a court, an attorney appointed to represent an eligible adult shall represent the eligible adult in any subsequent appeals. G. A hearing held pursuant to the Fostering Connections Act shall be commenced within ninety days of the filing of the petition, at which time the court shall review the voluntary services and support agreement and determine whether the agreement is in the best interests of the eligible adult and the transition plan meets the requirements of the Fostering Connections Act. History: Laws 2019, ch. 149, § 7; 2020, ch. 52, § 9. ANNOTATIONS The 2020 amendment, effective May 20, 2020, required the court, in a hearing held pursuant to the Fostering Connections Act, to determine whether the transition plan meets the requirements of the act; in Subsection C, added "transition" preceding "plan"; in Subsection F, deleted "Unless" and added "Until"; and in Subsection G, after "best interests of the eligible adult", added "and the transition plan meets the requirements of the Fostering Connections Act". 32A-26-8. Review hearings. A. The court shall conduct a review hearing at least once every six months. B. The primary purpose of the review hearing shall be to ensure that the fostering connections program is providing the eligible adult with the needed services and support to help the eligible adult move toward permanency and a successful transition to adulthood. At the review hearing, the department shall show that it has made active efforts to comply with the voluntary services and support agreement and effectuate the transition plan. A review hearing shall be conducted in a manner that seeks the eligible adult's meaningful participation by considering procedural modifications and flexible times. C. The department shall prepare and present to the children's court a report addressing progress made in meeting the goals in the transition plan, including an independent living transition proposal, and shall propose modifications as necessary to further those goals. D. If the court finds the department has not made active efforts to comply with the voluntary support and services agreement and effectuate the transition plan, the court may order additional services and support to achieve the goals of the transition plan and the goals of state and federal law. E. At every review hearing that occurs after the child attains sixteen years and six months of age, the court shall make a finding that the child has been notified about the fostering connections program and of the benefits of the program. F. At the review hearing that occurs no later than three months before the child attains eighteen years of age, the court shall make a finding of whether the child has decided to participate in the fostering connections program and whether the child has been provided an opportunity to develop a voluntary services and support agreement. History: Laws 2019, ch. 149, § 8; 2020, ch. 52, § 10. ANNOTATIONS The 2020 amendment, effective May 20, 2020, required the court to conduct review hearings every six months, and provided additional duties for the children, youth and families department and the children’s court in review hearings; in Subsection A, after "at least once", deleted "per year" and added "every six months"; in Subsection B, after "shall show that it has made", deleted "reasonable" and added "active", after "efforts to", deleted "implement the case" and added "comply with the voluntary services and support agreement and effectuate the transition", and after "meaningful participation", added "by considering procedural modifications and flexible times"; in Subsection C, replaced "case" plan with "transition" plan; in Subsection D, after "department has not made", deleted "reasonable" and added "active", after "efforts to", deleted "implement the case" and added "comply with the voluntary support and services agreement and effectuate the transition", after "goals of the", deleted "case" and added "transition", and after "transition plan and the", deleted "department’s policies or state or" and added "goals of state and"; and added Subsections E and F. 32A-26-9. Discharge hearing. A. At the last review hearing held prior to the eligible adult's twenty-first birthday, or prior to an eligible adult's discharge from the fostering connections program, the court shall review the eligible adult's transition plan and shall determine whether the department has made active efforts to implement the requirements of Subsection B of this section. B. The court shall determine whether the department made active efforts to assist the eligible adult in effectuating each element of the transition plan. C. If the court finds that the department has not made active efforts to assist the eligible adult in effectuating each element of the transition plan and that termination of jurisdiction would be harmful to the eligible adult, the court may continue to exercise its jurisdiction for a period not to exceed one year from the eligible adult's twenty-first birthday or the eligible adult's discharge from the fostering connections program; provided that the eligible adult consents to continued jurisdiction of the court. The court may dismiss the case for good cause at any time after the eligible adult's twenty-first birthday or the eligible adult's discharge from the fostering connections program. History: Laws 2019, ch. 149, § 9; 2020, ch. 52, § 11. ANNOTATIONS The 2020 amendment, effective May 20, 2020, clarified duties of the children’s court in determining whether the transition plan is being put into effect; in Subsection A, after "eligible adult’s", deleted "twentieth" and added "twenty-first", and after "department has made", deleted "reasonable" and added "active"; in Subsection B, after "whether", added "the department has made active efforts to assist the eligible adult in effectuating each element of the transition plan", and deleted former Paragraphs B(1) through B(4); and in Subsection C, after "department has not made", deleted "reasonable efforts to meet all of the requirements of Subsection B of this section" and added "active efforts to assist the eligible adult in effectuating each element of the transition plan". 32A-26-10. Fostering connections advisory committee; membership; appointment; terms; duties; meetings; report. A. By October 1, 2019, the secretary shall appoint a "fostering connections advisory committee" to make recommendations to the department and to the legislature regarding the fostering connections program. The committee shall meet on a biannual basis to advise the department and the legislature regarding ongoing implementation of the fostering connections program. By September 1, 2020 and each September 1 thereafter, the committee shall provide a written report to the governor, the legislature and the secretary regarding ongoing implementation of the fostering connections program, including the number of participants and the number of early discharges. B. By October 1, 2020, the committee shall develop a proposal for qualitative and quantitative longitudinal data to be collected to drive ongoing program design and implementation. Each October 1 thereafter, the committee shall develop specific recommendations for improving the fostering connections program and outcomes for the eligible adults it serves and expanding the fostering connections program or improving outcomes for similar groups of at-risk young adults. C. The members of the committee shall include: (1) the following seven voting members: (a) the secretary, ex officio, or the secretary's designee; (b) three members who are appointed by the secretary as follows: 1) two youth or young adults who are currently or were previously placed in foster care; and 2) one representative of a child advocacy group; and (c) three members who are appointed by the secretary as follows: 1) one representative of a child welfare advocacy organization; 2) one representative of the department; and 3) one representative of an agency providing independent living services; and (2) the following nonvoting members: (a) a legislator, appointed by the New Mexico legislative council; (b) a children's court judge, appointed by the administrative office of the courts; and (c) a subject-matter expert, appointed by the secretary. D. Members of the committee shall be appointed for terms of two years; provided that the initial committee members' terms shall be staggered so that no more than five members' terms shall expire in any one year. E. The secretary shall convene a first meeting of the committee by December 1, 2019. At that first meeting, the members of the committee shall choose a chair, and members' terms shall be chosen by lot. F. The secretary shall fill vacancies on the committee as they occur. G. A majority of the committee members constitutes a quorum for voting purposes. H. Members of the committee shall receive per diem and mileage pursuant to the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] and shall receive no other compensation, perquisite or allowance for their service on the committee. I. As used in this section: (1) "committee" means the fostering connections advisory committee; and (2) "secretary" means the secretary of children, youth and families. History: Laws 2019, ch. 149, § 10; 2020, ch. 52, § 12. ANNOTATIONS The 2020 amendment, effective May 20, 2020, provided additional duties for the fostering connections advisory committee; in Subsection B, after "October 1, 2020", deleted "and" and added "the committee shall develop a proposal for qualitative and quantitative longitudinal data to be collected to drive ongoing program design and implementation", after "recommendations for", added "improving the fostering connections program and outcome for the eligible adults it serves", and after "at-risk young", deleted "people" and added "adults"; and in Subsection C, Paragraph C(2), after "the following", deleted "ex-officio". 32A-26-11. Administrative appeals. A young adult may appeal an adverse eligibility determination in accordance with rules promulgated by the department. The department shall provide the young adult, in the young adult's primary language, with clear and developmentally appropriate verbal and written information concerning the administrative appeal process. History: Laws 2020, ch. 52, § 13. ANNOTATIONS Effective dates. — Laws 2020, ch. 52 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 20, 2020, 90 days after adjournment of the legislature. 32A-26-12. Duties of the department. A. The department shall notify every child in its custody about the fostering connections program beginning when the child attains sixteen years of age and at every transition planning meeting thereafter. B. Prior to attaining seventeen years and six months of age, every child in the custody of the department shall be provided detailed information about the fostering connections program and given the opportunity to develop a voluntary services and support agreement that would be finalized and executed upon the child attaining eighteen years of age. History: Laws 2020, ch. 52, § 14. ANNOTATIONS Effective dates. — Laws 2020, ch. 52 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 20, 2020, 90 days after adjournment of the legislature. ARTICLE 27 Family Representation and Advocacy 32A-27-1. Short title. This act [32A-27-1 to 32A-27-8 NMSA 1978] may be cited as the "Family Representation and Advocacy Act". History: Laws 2022, ch. 51, § 1. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 1 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-2. Definitions. As used in the Family Representation and Advocacy Act: A. "at risk of being placed" means conditions within a child's family may require the child be removed from the custody of a parent, custodian or guardian and placed in the legal custody of the children, youth and families department; B. "client" means: (1) an eligible adult pursuant to the Fostering Connections Act [Chapter 32A, Article 26 NMSA 1978]; (2) a child who is, or is at risk of, being placed in the legal custody of the children, youth and families department; or (3) a parent, custodian or guardian of a child who is, or is at risk of, being placed in the legal custody of the children, youth and families department; C. "commission" means the family representation and advocacy commission that provides oversight of the office of family representation and advocacy; D. "director" means the director of the office of family representation and advocacy; and E. "office" means the office of family representation and advocacy. History: Laws 2022, ch. 51, § 2. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 2 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-3. Office created; duties. A. The "office of family representation and advocacy" is created as an adjunct agency pursuant to Section 9-1-6 NMSA 1978 and shall be overseen by the commission. B. The office shall: (1) work closely with the children, youth and families department to leverage federal funding pursuant to Title IV-E of the federal Social Security Act; and (2) appoint, compensate, evaluate and retain attorneys and other staff to provide legal representation for eligible adults under the Fostering Connections Act [Chapter 32A, Article 26 NMSA 1978] and for children and parents, custodians or guardians whose children are, or are at risk of being placed, in the legal custody of the children, youth and families department. History: Laws 2022, ch. 51, § 3. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 3 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Cross references. — For the federal Social Security Act, see 42 U.S.C. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-4. Duty of director to establish appellate division; duty of appellate division. A. The director shall establish an appellate division within the office. The appellate division shall be led by a chief appellate attorney. B. The appellate division shall assist the director by providing representation before the court of appeals and the supreme court in appellate proceedings involving persons represented pursuant to the Family Representation and Advocacy Act. History: Laws 2022, ch. 51, § 4. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 4 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-5. Duty of director to establish regional offices; appointment of regional managers. A. The director shall establish at least five regional offices that align with the five regional offices of the children, youth and families department to accommodate all judicial districts that exist within the five regions. One regional office shall be located each in the northwest, northeast, southwest, southeast and the Bernalillo county metropolitan area. B. The director shall appoint a regional manager in each region. The regional manager shall administer the operation of the region and shall serve at the pleasure of the director. Each regional manager shall reside in this state and shall be an attorney licensed to practice law in the highest courts of the state. History: Laws 2022, ch. 51, § 5. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 5 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-6. Family representation and advocacy commission; membership; terms; removal. A. The "family representation and advocacy commission" is created. B. The commission consists of thirteen members, including: (1) the director of the university of New Mexico school of law's Corinne Wolfe center for child and family justice, or the director's designee; (2) the director of the administrative office of the courts' court improvement project, or the director's designee; (3) the dean of the New Mexico state university school of social work or the dean of New Mexico highlands university school of social work, or the dean's designee, in alternating terms; (4) three members appointed by the governor who demonstrate a commitment to high-quality legal representation or to working with and advocating for the population served by the office; (5) five members appointed by the chief justice of the supreme court, including: (a) two members who either served as former children's court judges or attorneys in the child welfare system; and (b) three members, including: 1) a youth with lived experience in the legal custody of the children, youth and families department; 2) a parent with lived experience having one or more children in the legal custody of the children, youth and families department; and 3) a member with lived experience with the children, youth and families department or another child welfare agency as a youth, a parent or both; (6) one member appointed by the speaker of the house of representatives; and (7) one member appointed by the president pro tempore of the senate. C. Initial appointments to the commission shall be made no later than September 30, 2022. The director of the university of New Mexico school of law's Corinne Wolfe center for child and family justice and the director of the administrative office of the courts' court improvement project shall serve as permanent members. Initial terms of members appointed by the speaker of the house of representatives and the president pro tempore of the senate shall be for two years. Initial terms of members appointed by the governor, the chief justice of the supreme court and the dean of a school of social work shall be for three years. D. Subsequent terms for appointed members shall be for four years. Appointed commission members shall not serve more than two consecutive terms. An appointed commission member shall serve until the member's successor has been appointed and qualified. The commission shall fill a vacancy for the remainder of the unexpired term pursuant to Subsection B of this section. E. A member may be removed by the commission for malfeasance, misfeasance or neglect of duty. F. If a member's professional status changes in a way that renders the member ineligible pursuant to the provisions of the Family Representation and Advocacy Act, the member shall resign immediately. G. Members of the commission shall be entitled to compensation pursuant to the provisions of the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978] and shall receive no other perquisite, compensation or allowance. History: Laws 2022, ch. 51, § 6. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 6 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-7. Family representation and advocacy commission; member qualifications. A. A member of the commission shall: (1) possess significant experience in the representation of children, youth, parents, custodians or guardians in abuse and neglect proceedings; (2) possess significant experience with the child welfare system as a parent, custodian, guardian or former foster youth; or (3) demonstrate a commitment to high-quality legal representation or to working with and advocating for the population served by the office. B. The following persons shall not be appointed to serve on the commission: (1) current employees of the children, youth and families department; (2) current employees of the office; (3) current judges, judicial officials or their employees; and (4) persons who currently contract with or receive funding from the office or their employees. History: Laws 2022, ch. 51, § 7. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 7 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-8. Family representation and advocacy commission; organization; meetings. A. The commission shall hold its first meeting no later than thirty days after it has completed the appointment process and shall elect a chair at that meeting. Thereafter, the commission shall meet at least four times a year, as determined by a majority of commission members. Meetings shall be held at the call of the chair or director or at the request of four commission members. B. The commission shall appoint a director no later than December 31, 2022. C. A majority of commission members constitutes a quorum for the transaction of business, and an action by the commission shall not be valid unless seven or more members concur. D. The commission may adopt rules and shall keep a record of its proceedings. E. A commission member may select a designee to serve in the member's place no more than once per year. History: Laws 2022, ch. 51, § 8. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 8 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-9. Family representation and advocacy commission; powers and duties; restriction on individual members. A. The commission shall exercise independent oversight of the office of family representation and advocacy to review and approve standards and provide guidance and support to the director. B. The commission shall review and approve fair and consistent policies for the operation of the office of family representation and advocacy and the provision of services to eligible adults under the Fostering Connections Act [Chapter 32A, Article 26 NMSA 1978] and to children and parents, custodians or guardians whose children are, or are at risk of being placed, in the legal custody of the children, youth and families department. C. A member of the commission shall not interfere with the discretion, professional judgment or advocacy of an appointed attorney, contract attorney, staff attorney, contract employee or office employee in the representation and advocacy of a client pursuant to the Family Representation and Advocacy Act. History: Laws 2022, ch. 51, § 9. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 9 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-10. Office of family representation and advocacy; administration; finance. A. The headquarters of the office shall be located in the Bernalillo county metropolitan region. B. All salaries and other expenses of the office shall be paid upon warrants drawn by the secretary of finance and administration, supported by vouchers signed by the director or the director's authorized representative and in accordance with budgets approved by the state budget division of the department of finance and administration. History: Laws 2022, ch. 51, § 10. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 10 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-11. Office of family representation and advocacy; gifts, grants and donations. On behalf of the state, the office may receive gifts, grants, donations or bequests from any source to be used in carrying out the purposes of the Family Representation and Advocacy Act. Gifts, grants, donations or bequests from a person who has any matter currently being handled by the office, or from a person within three degrees of consanguinity with a person who has any matter currently being handled by the office, shall not be accepted. History: Laws 2022, ch. 51, § 11. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 11 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-12. Director; appointment; qualifications; removal. A. The director is the administrative head of the office. The commission shall appoint a director for a term of four years upon approval of two-thirds of its members. The commission may reappoint a director for subsequent terms. A vacancy in the office of director shall be filled by appointment of the commission. B. The commission shall appoint as director an attorney with the following qualifications: (1) licensed to practice law in this state or will be licensed within one year of appointment; (2) at least five years of experience in the field of representation of children or adults in abuse and neglect cases in a practicing attorney, management, supervisory or policymaking position or equivalent experience as determined by the commission; and (3) clearly demonstrated management or executive experience. C. The director may be removed by the commission upon approval of two-thirds of commission members; provided that no removal shall occur without notice and an opportunity for a hearing. History: Laws 2022, ch. 51, § 12. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 12 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. 32A-27-13. Director; general duties and powers. A. The director is responsible to the commission for the operation of the office. The director shall manage all operations of the office and shall: (1) administer and carry out the provisions of the Family Representation and Advocacy Act; (2) exercise authority over and provide general supervision of employees; (3) oversee funding, including federal funding; (4) administer and supervise contracts for attorneys and other employees; and (5) represent and advocate for the office and its clients. B. The director is granted every power express and implied that is necessary for the fulfillment of the director's duties, including authority to: (1) set standards relating to: (a) the minimum experience, training and qualifications for contract and staff attorneys for child welfare cases; (b) monitoring and evaluating contract and staff attorneys and other contract and office staff, including attorneys appointed to cases to resolve conflicts of interest; (c) managing caseloads and workloads, including load monitoring protocols for staff attorneys, contract attorneys, office staff and contract staff; and (d) the competent and efficient representation of clients whose cases present conflicts of interest; (2) exercise general supervisory authority over all employees of the office; (3) delegate authority to subordinates as the director deems necessary and appropriate; (4) employ and fix the compensation of persons necessary to discharge the director's duties and enter into contracts with private attorneys and law firms as necessary to carry out the provisions of the Family Representation and Advocacy Act; (5) organize the office into units as the director deems necessary and appropriate to carry out the director's duties; (6) develop and annually update a strategic plan with measurable goals and metrics; (7) conduct research and studies that will improve the operation of the office and the administration of the Family Representation and Advocacy Act; (8) provide courses of instruction and practical training for employees of the office that will improve the operation of the office and the administration of the Family Representation and Advocacy Act; (9) purchase or lease property and lease real property for use of the office; (10) maintain records and statistical data that reflect the operation and administration of the office, including a system that allows the office to: (a) collect and analyze data on outcomes for children and families; (b) maintain client confidentiality of information; (c) evaluate the effectiveness of the office's programs and practices; and (d) inform and guide continuous quality improvement; (11) submit an annual report and budget for the operation of the office; (12) formulate a fee schedule for attorneys or law firms who are not employees of the office but who serve as contracted counsel pursuant to the Family Representation and Advocacy Act; (13) formulate a fee schedule for other contract staff who are not employees of the office but who serve clients pursuant to the Family Representation and Advocacy Act; (14) establish a grievance procedure for clients represented by a staff attorney or contract attorney or served by office or contract staff; (15) certify contracts and expenditures for litigation expenses, including contracts and expenditures for experts, investigators, witnesses and attorney contracts; and (16) perform other duties as set forth by the commission. History: Laws 2022, ch. 51, § 13. ANNOTATIONS Compiler's notes. — Laws 2022, ch. 51, § 13 was not enacted as part of the Children's Code, but was compiled there for the convenience of the user. Effective dates. — Laws 2022, ch. 51 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 18, 2022, 90 days after adjournment of the legislature. ARTICLE 28 Indian Family Protection 32A-28-1. Short title. Sections 1 through 42 [32A-28-1 to 32A-28-42 NMSA 1978] of this act may be cited as the "Indian Family Protection Act"." History: Laws 2022, ch. 41, § 1. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 1 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-2. Definitions. As used in the Indian Family Protection Act: A. "active efforts" means efforts that are affirmative, active, thorough and timely and that represent a higher standard of conduct than reasonable efforts; B. "adoptive placement" means a permanent placement of an Indian child for adoption, including an action resulting in a final decree of adoption; C. "child custody proceeding" means an action for foster care placement, termination of parental rights, permanent guardianship or adoptive placement or an action pursuant to Section 32A-3A-8 NMSA 1978 or the Family in Need of Court- Ordered Services Act [Chapter 32A, Article 3B NMSA 1978] and includes investigations and other preliminary activities preceding the formal initiation of an action, but does not include: (1) delinquency proceedings; and (2) custodial proceedings or kinship guardianships pursuant to Chapter 40 NMSA 1978; D. "cultural compact" means an agreement that documents how an Indian child placed in an adoptive or guardianship home will continue to actively participate in the child's cultural learning and activities and that is entered into among: (1) the adoptive parents or guardians of the Indian child, which parents or guardians are not members of the Indian child's tribe; and (2) the Indian child's tribe; E. "discussion with an Indian tribe" means documented good faith efforts to actively communicate and work with an Indian tribe; F. "extended family member" means a person who is defined to be an extended family member by law or custom of an Indian child's tribe or, in the absence of such law or custom, means a person who is eighteen years of age or older and who is an Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, stepparent or godparent; G. "fictive kin" means a person: (1) who is not a relative or an extended family member of an Indian child and who has a significant, family-like relationship with the child or the child's family, which relationship existed prior to the child's entry into foster care; (2) who meets the definition of "fictive kin" as established by an Indian child's tribe's law, custom or tradition; or (3) chosen by an Indian child who is fourteen years of age or older, regardless of when the relationship between the person and the Indian child was established, when it is in the best interest of the child to identify that person as fictive kin; and H. "foster care placement" means: (1) an action pursuant to the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] removing an Indian child from the child's parent, guardian or Indian custodian for temporary placement in a foster home or institution or the home of a guardian where the parent or Indian custodian cannot have the child returned upon demand, but in which parental rights have not been terminated; or (2) the temporary placement of an Indian child in foster care pursuant to a voluntary agreement entered into between a parent, guardian or Indian custodian and the department pursuant to the Voluntary Placement and Family Services Act. History: Laws 2022, ch. 41, § 2; 2023, ch. 90, § 21. ANNOTATIONS The 2023 amendment, effective July 1, 2023, in Subsection H, Paragraph H(2), after "pursuant to the", added "Voluntary Placement and". Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-3. Indian child's domicile; determination of domicile and residence. A. In a child custody proceeding involving an Indian child, the court shall determine and make an order of the domicile and residence of the Indian child and whether the Indian child is under the jurisdiction of a tribal court. B. The department shall communicate with the Indian child's tribe as necessary to assist the court in making a determination pursuant to this section. If it is unclear which tribe is the Indian child's tribe, the department shall communicate with any tribe with which there is reason to know that the Indian child may be a member or eligible for membership. History: Laws 2022, ch. 41, § 3. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 3 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-4. Active efforts required in child custody proceedings, including voluntary placement agreements. In a child custody proceeding involving an Indian child: A. active efforts to maintain or reunite an Indian child with the Indian child's family shall be made pursuant to the Indian Family Protection Act. Active efforts shall be tailored to the facts and circumstances of each case. The department shall not seek findings of futility or aggravated circumstances; B. the department shall, in cooperation with the Indian child and the Indian child's parents, extended family members, guardian, Indian custodian and Indian tribe, make active efforts to maintain or reunite an Indian child with the Indian child's family and tailor the active efforts to the facts and circumstances of the case and shall: (1) document in writing the details demonstrating the quality and quantity of services and assistance provided to alleviate the causes and conditions leading to the child custody proceeding, on the court record; (2) assist the Indian child's parent or parents, guardian or Indian custodian through the steps of a department case plan and with accessing or developing the resources necessary to satisfy the department case plan; (3) provide assistance in a manner consistent with the prevailing social and cultural standards and way of life of the Indian child's tribe; and (4) conduct a comprehensive assessment of the circumstances of an Indian child's family with a goal of reunification; C. the department may make active efforts to maintain or reunite an Indian child with the Indian child's family by: (1) identifying and establishing appropriate services and assisting the Indian child's parents to overcome barriers to reunification, including actively assisting the parents in obtaining those services; (2) identifying, notifying and inviting representatives of the Indian child's tribe to participate in family team meetings, team decision meetings, permanency planning, resolution of placement issues and providing support and services to the Indian child's family; (3) conducting or causing to be conducted a diligent search for the Indian child's extended family members and contacting and consulting with the Indian child's extended family members and adult relatives to provide family structure and support for the Indian child and the Indian child's parents; (4) offering and employing culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the Indian child's tribe; (5) taking steps to keep the Indian child and the Indian child's siblings together whenever possible; (6) supporting regular visits with the Indian child's parent, guardian or Indian custodian, in the most natural setting as possible, as well as trial home visits during a period of removal, consistent with the need to ensure the health, safety and welfare of the Indian child; (7) identifying community resources, including housing, financial assistance, transportation, mental health services, health care, substance use prevention and treatment and peer support services and actively assisting the Indian child's parents, guardian or Indian custodian or, when appropriate, the Indian child's family and extended family members, in using and accessing those resources; (8) monitoring progress and participation of the Indian child's parents, guardian, Indian custodian or extended family members if the services described in Paragraphs (1), (2), (4) and (7) of this subsection are not available and considering alternative ways to address the needs of the Indian child's parents, guardian, Indian custodian and, where appropriate, the family, if the optimum services do not exist or are not available; (9) providing post-reunification services and monitoring for the duration of the court's jurisdiction; (10) allowing the Indian child to participate in customs and traditions, including attending and participating in traditional ceremonies centered around the Indian child and the Indian child's family; or (11) any other efforts that are appropriate to the Indian child's circumstances; D. prior to accepting an Indian child for voluntary placement, the department shall document the active efforts: (1) made by the department to provide or arrange services by other public or private agencies that would be affordable to the family; and (2) that would alleviate the conditions leading to the placement request; E. the department shall record all efforts made toward active efforts and report them to the court; and F. the court shall make a written determination at the conclusion of every proceeding as to whether the department has made active efforts to maintain or reunite the Indian child with the Indian child's family. The court shall make a written determination based on evidence on the record as to whether the department has made active efforts to provide services and support to preserve and reunify the family. History: Laws 2022, ch. 41, § 4. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 4 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-5. Notice to Indian tribes. A. In a child custody proceeding when the court knows or has reason to know that an Indian child is involved, the department shall notify the parent, guardian or Indian custodian and the Indian child's tribe, by certified mail with return receipt requested, of: (1) the pending proceedings; (2) the right of the Indian child's parent, guardian, Indian custodian and Indian child's tribe to: (a) intervention; and (b) petition the court to transfer the proceeding to the tribal court; (3) the right of the Indian child's parent, guardian or Indian custodian to court- appointed counsel if the court determines that person is unable to afford counsel; and (4) the right of the Indian child's tribe to participate in the child custody proceeding whether or not the Indian child's tribe intervenes. B. In the event that the department attempts to enter into discussion with an Indian tribe and the tribe does not respond within the time frame provided for in the Indian Family Protection Act, the department may proceed; provided that the absence of a tribal response does not: (1) eliminate other requirements of future communication and work with the Indian tribe concerning the child; or (2) affect the Indian tribe's ability to respond to an action that has not yet been taken. History: Laws 2022, ch. 41, § 5. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 5 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-6. Tribal membership; department assistance. When an Indian child is placed in the custody of the department, the department shall work with the parent, the guardian, the Indian custodian or the Indian child's tribe to establish membership, at the direction of the parent or the Indian tribe. The department shall not determine tribal membership. An Indian tribe shall have the sole right to determine membership and membership eligibility, as defined by the Indian tribe's law, custom, tradition and practice. The department shall provide records to assist with determining membership eligibility at the request of the parent or the Indian child's tribe. History: Laws 2022, ch. 41, § 6. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 6 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-7. Indian child custody proceedings; jurisdiction; transfer. A. An Indian tribe has exclusive jurisdiction over a child custody proceeding involving an Indian child who resides or is domiciled within the reservation of the Indian tribe, except when jurisdiction is otherwise vested in the state by federal law or pursuant to a tribal-state agreement. When an Indian child is under the jurisdiction of the tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child. B. In a child custody proceeding involving an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court and the tribal court have concurrent jurisdiction. C. At the inception of a child custody proceeding involving an Indian child not domiciled or residing within the reservation of the Indian child's tribe, or upon a motion for transfer at any stage of the proceeding, the department shall, without delay, ask the Indian child's tribe in writing whether the Indian child's tribe will accept jurisdiction over the child custody proceeding. D. If the Indian child's tribe declines to accept jurisdiction, the court retains jurisdiction. A parent, guardian, Indian custodian or the Indian child's tribe retains the right to move the court to transfer the proceeding to the tribal court at any stage of the proceeding. A transfer motion may be made orally on the record or in writing. E. If the Indian child's tribe accepts jurisdiction in writing provided to the court, the court shall transfer the child custody proceeding to the tribal court unless: (1) either parent of the Indian child objects to the transfer; or (2) good cause exists to deny the transfer. F. If any party asserts that good cause to deny the transfer exists, the reasons for that belief or assertion shall be placed on the record in a written motion, and the motion shall be served on the parties and the Indian child's tribe. The court shall hold a hearing on the record in which: (1) all parties and the Indian child's tribe, even if the tribe has not formally intervened in the case, have an opportunity to present facts and legal arguments; (2) the burden to establish good cause is on the party opposing the transfer; and (3) good cause shall be established by clear and convincing evidence. G. For the purpose of transferring a case, a finding of good cause shall not be based on: (1) the advanced stage of a child custody proceeding if the parent, guardian, Indian custodian or Indian child's tribe did not receive notice of the proceeding until an advanced stage; (2) the timing of the tribe's intervention; (3) whether there have been prior proceedings in the court involving the Indian child for which no petition to transfer was filed; (4) predictions of whether the transfer could result in a change in the placement of the Indian child; (5) the Indian child's cultural connections with the Indian tribe or its reservation; (6) consideration of any perceived inadequacy of an Indian tribe's judicial systems; (7) consideration of the perceived socioeconomic conditions within an Indian tribe or reservation; or (8) a delay in placing an Indian child with the Indian child's extended family members or adult relatives, regardless of the stage of the child custody proceeding. H. If the court denies the transfer for good cause, the basis for the decision shall be stated orally on the record and in a written order. I. When a court authorizes transfer, the court: (1) retains jurisdiction and shall not dismiss the case until the tribal court exercises jurisdiction and confirms that the tribe has received all information required by this section; (2) shall expeditiously transfer to the tribal court all records related to the proceeding, including all pleadings and the court record; and (3) shall direct the department to: (a) coordinate with the tribal court and the Indian child's tribe to ensure that the transfer is accomplished with minimal disruption of services to the Indian child and the Indian child's family; and (b) expeditiously provide at no cost to the appropriate tribal agency: 1) all records and original documents related to the Indian child in the department's possession, including a birth certificate, social security card, certificate of Indian birth and similar documents; 2) documentation related to the Indian child's eligibility for state and federal assistance; and 3) the entire case record in the possession of the department. History: Laws 2022, ch. 41, § 7. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 7 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-8. Tribal-state agreements. A. The department shall make a good faith effort to enter into a tribal-state agreement for the coordination of care and custody of Indian children with each Indian tribe within the borders of this state. B. The department may enter into a tribal-state agreement with any Indian tribe outside of this state if there are children residing in this state who are members of or are eligible to become members of that Indian tribe. C. Any state services requiring a tribal-state agreement based on a funding source shall be negotiated and entered into to meet the provisions of this section. D. A tribal-state agreement may include an agreement regarding: (1) whether a case needs to be filed, and whether the case would be filed by the department in court or by the appropriate tribal agency in tribal court; (2) exclusive jurisdiction over cases filed by the department in which the court and tribal court would otherwise have concurrent jurisdiction; (3) the process to transfer cases between a court and tribal court; and (4) procedures for the assessment, removal, placement and custody of Indian children. E. A tribal-state agreement shall: (1) provide for cooperative delivery of child welfare services to Indian children in this state, including the use, to the extent available, of services provided by the Indian tribe; and (2) if services provided by the Indian tribe are unavailable, provide for the department's use of community services and resources developed specifically for Indian families and that have demonstrated experience and capacity to provide culturally relevant and effective services to children. F. The department shall review the tribal-state agreement every five years and invite the tribe to propose updates to the tribal-state agreement. History: Laws 2022, ch. 41, § 8. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 8 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of 32A-28-8 NMSA 1978 apply to tribal-state agreements that become effective on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-9. Full faith and credit. The state shall recognize and give full faith and credit to public acts, records and judicial proceedings regarding parentage, nonparentage, adoption and custody decided in an Indian tribe's jurisdiction. History: Laws 2022, ch. 41, § 9. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 9 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-10. Right to services. An Indian child residing on or off a reservation, as a resident of this state, shall have the same right to services that are available to other children of this state. The cost of the services provided to an Indian child or the Indian child's parents, guardian or Indian custodian shall be determined and provided for in the same manner as services are made to other children of the state, using tribal, state and federal funds. History: Laws 2022, ch. 41, § 10. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 10 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-11. Temporary emergency jurisdiction. A. The department shall file a petition for temporary emergency removal where the department demonstrates that an Indian child is a resident of or domiciled on a reservation but temporarily located off a reservation. The department shall provide notice and request receipt of notice to the Indian child's tribe, parents, guardian and Indian custodian within twenty-four hours of the filing of the petition. B. A court of this state has temporary emergency jurisdiction if the Indian child is present in this state but is domiciled on a reservation and the Indian child has been abandoned or it is necessary in an emergency to protect the Indian child because the Indian child, or a sibling or parent of the Indian child, is subjected to or threatened with abuse or neglect. C. A child custody determination made under this section remains in effect until an order is obtained from a tribal court. If a child custody proceeding has not been or is not commenced in tribal court, the department may file a petition alleging abuse and neglect. D. A court of this state that has been asked to make a temporary emergency order for temporary jurisdiction, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a tribal court having jurisdiction shall immediately communicate with that tribal court to resolve the emergency, protect the safety of the parties and the Indian child and determine a period for the duration of the temporary order. History: Laws 2022, ch. 41, § 11. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 11 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-12. Investigations. A. Within twenty-four hours of initiating an investigation that involves an Indian child, the department shall notify the Indian child's tribe of: (1) the investigation; (2) the involvement of the Indian child; (3) the department's obligation to collaborate with the Indian child's tribe to identify a potential qualified expert witness or witnesses to participate in the proceeding if the investigation results in a child custody proceeding; and (4) the department's obligation to identify a potential qualified expert witness or witnesses no later than thirty days prior to a child custody or termination proceeding. B. During an investigation that involves an Indian child, the department shall: (1) coordinate services with the Indian child's tribe to prevent taking the child into custody; (2) provide culturally appropriate remedial services designed to prevent the breakup of the Indian family; and (3) make active efforts to identify extended family members and fictive kin able to be alternative care providers or to ensure the safety of the child. C. The department's active efforts to coordinate services to prevent taking the Indian child into custody shall be documented in any subsequent action that may result in the child coming into the department's custody. D. Before filing a petition related to an Indian child, the department shall notify the Indian child's tribe of the results of the investigation, including the active efforts that have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful, resulting in the department's intention to file the petition. History: Laws 2022, ch. 41, § 12. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 12 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-13. Pending court proceedings; notice; standards of evidence; documentation of applicability and compliance. A. The court shall not make findings of futility or aggravated circumstances in the child custody proceeding. B. The standards of evidence of the following child custody proceedings are as follows: (1) the court shall not order a foster care placement of an Indian child at adjudication unless clear and convincing evidence is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child's continued custody by the child's parent, guardian or Indian custodian is likely to result in serious emotional or physical damage to the child; (2) the court shall not order a termination of parental rights for an Indian child unless evidence beyond a reasonable doubt is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child's continued custody by the child's parent, guardian or Indian custodian is likely to result in serious emotional or physical damage to the child; (3) for a foster care placement at adjudication or termination of parental rights, the evidence shall show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child custody proceeding; and (4) without a causal relationship identified in Paragraph (3) of this subsection, evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse or nonconforming social behavior shall not by itself constitute clear and convincing evidence or evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child. C. If there is a reason to know that the Indian child's parent, guardian or Indian custodian has limited English proficiency and may not understand the contents of the notice pursuant to Subsection A of this section, the court shall provide language access services as required by Title 6 of the federal Civil Rights Act of 1964 and other applicable federal and state laws. If the court is unable to secure translation or interpretation support, the court shall contact or direct a party to contact the Indian child's tribe or the local office of the United States department of the interior bureau of Indian affairs for assistance identifying a qualified translator or interpreter. D. If the identity or location of the parent, guardian or Indian custodian and the Indian tribe cannot be determined, a notice shall be given to the secretary in the same manner as provided in Subsection A of this section. The secretary shall have fifteen days after receipt of the notice to provide the same notice to the parent, guardian or Indian custodian and the Indian tribe. E. A foster care placement or termination of parental rights proceeding shall not be held until at least ten days after receipt of notice by the parent, guardian or Indian custodian and the Indian tribe or the secretary pursuant to this section; provided that the parent, guardian or Indian custodian or the Indian tribe shall, upon request, be granted up to twenty additional days to prepare for that proceeding. F. Nothing in this section prevents a court from reviewing a removal of an Indian child from the child's parent, guardian or Indian custodian at an emergency custody proceeding before the expiration of the waiting periods provided in Subsections D and E of this section to determine the appropriateness of the removal and potential return of the child. History: Laws 2022, ch. 41, § 13. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 13 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-14. Intervention. A. An Indian child's tribe has the right to intervene at any point in a child custody proceeding. B. In any court proceeding subject to the Indian Family Protection Act for the foster care placement, guardianship placement, adoptive placement of or termination of parental rights to an Indian child, the Indian child's relative or extended family member, the guardian, the Indian custodian or a foster parent with whom the child has resided for at least twelve months may file a motion to intervene at any point in the proceeding. C. When determining whether a person described in Subsection B of this section should be permitted to intervene, the court shall consider: (1) the person's rationale for the proposed intervention; and (2) whether intervention is in the best interest of the Indian child. D. When the court determines that the Indian child's best interest will be served as a result of intervention by a person described in Subsection B of this section, the court may permit intervention unless the party opposing intervention can demonstrate that a viable plan for reunification with the respondents is in progress and that intervention could impede the progress of the reunification plan. History: Laws 2022, ch. 41, § 14. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 14 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-15. Petition; form and content. In a petition initiating a child custody proceeding, the department shall include a statement as to whether the child who is the subject of the child custody proceeding is an Indian child and shall include information about: A. the Indian child's tribe; B. the tribal affiliations of the Indian child's parents; C. active efforts made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts were proven to be unsuccessful and the reasons these efforts were unsuccessful, if known; D. active efforts made to comply with the notice requirements pursuant to the Indian Family Protection Act, including results of the contact and the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the Indian child's tribe shall be attached as exhibits to the petition; and E. active efforts made to comply with the placement preferences set forth in the Indian Family Protection Act or the placement preferences of the Indian child's tribe. History: Laws 2022, ch. 41, § 15. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 15 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-16. Record of Indian child's tribe; Indian tribe's right to participate. A. The department shall keep a record of: (1) an Indian tribe of which the Indian child is a member or eligible for membership, as determined by the Indian child's tribe; (2) whether the Indian child is a member of one Indian tribe but is eligible for membership in one or more other Indian tribes; (3) the Indian tribe designated by agreement between one or more Indian tribes if the Indian child is not a member of each of those Indian tribes but is eligible for membership in each of those Indian tribes; or (4) the Indian tribe recorded by the court pursuant to Subsection D of this section if the Indian child is eligible for membership in each of those Indian tribes and the Indian tribes cannot agree on the designation of the Indian child's tribe. B. If the department files a petition, the department shall inform the court on the record of the Indian tribe or tribes of which the Indian child is a member or eligible for membership. C. If there is no dispute, the court shall make a record of the Indian child's tribe. D. If there is a dispute as to which Indian tribe is the Indian child's tribe, the court shall, after a hearing, record the Indian tribe with which the Indian child has more significant contacts, taking into consideration: (1) the preference of each of the Indian child's parents; (2) the duration of the Indian child's current or prior domicile or residence on or near the reservation of each Indian tribe; (3) the tribal membership of the Indian child's custodial parent or Indian custodian; (4) the interests asserted by each Indian tribe; (5) whether the Indian tribe has previously adjudicated a case involving an Indian child; (6) the Indian tribe's custom and tradition; and (7) if the court determines that the Indian child is of sufficient age and capacity to meaningfully self-identify the Indian child's tribe, the self-identification of the Indian child. E. If an Indian child is a member of or is eligible for membership in more than one Indian tribe, the court shall permit an Indian tribe, in addition to the Indian child's tribe as determined pursuant to Subsection D of this section, to participate in the child custody proceeding as an intervenor. F. In a child custody proceeding involving an Indian child, the Indian child's tribe may be present and may participate at a closed hearing regardless of whether the Indian child's tribe has intervened. G. The Indian child's tribe or any Indian tribe claiming the Indian child as a member, whether or not the Indian tribe has intervened, shall have the right to examine all reports or other documents filed with the court upon which a decision with respect to the action may be based. History: Laws 2022, ch. 41, § 16. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 16 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-17. Qualified expert witness. A. The court shall receive testimony from one or more qualified expert witnesses in all adjudicatory hearings pursuant to the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978] and all hearings to terminate parental rights. The court shall receive testimony from a qualified expert witness regardless of whether the parties to the proceeding have stipulated to a finding of abuse or neglect. B. A person may be qualified by the court to serve as a qualified expert witness if the court finds that the person is: (1) knowledgeable about the prevailing social and cultural standards of the tribe and is familiar with the family and child-rearing practices of the Indian child's tribe; (2) able to testify regarding whether the Indian child's continued custody by the parent, guardian or Indian custodian is likely to result in serious emotional or physical damage to the child; and (3) a member of the Indian child's tribe; or (4) a person recommended by the Indian child's tribe. C. When the department notifies an Indian child's tribe of the pendency of an investigation involving an Indian child from that Indian tribe, the department shall request in writing that the Indian child's tribe designate a qualified expert witness to testify in any child custody or termination proceedings that may result from the investigation. The department shall make active efforts to collaborate with the Indian tribe to identify a person to serve as a qualified expert witness. D. If, after active efforts and in no case later than fifteen days after filing the petition, the department does not receive a designation from the Indian tribe or if the department, after good faith efforts, is unable to retain the Indian tribe's designated qualified expert witness, the department may identify a qualified expert witness who meets the requirements provided in Paragraph (1) of Subsection B of this section from a list of qualified expert witnesses compiled through cooperation among the Indian tribes in the state and the department. E. If, thirty days after filing the petition, the department has not identified a qualified expert witness to testify as required by the Indian Family Protection Act, in considering a motion by the department for a continuance, the court shall consider whether it is in the best interest of the Indian child to remain in the department's custody for additional time. F. At least thirty days prior to an adjudicatory hearing pursuant to the Abuse and Neglect Act and a hearing to terminate parental rights, the department shall disclose to the Indian child's tribe the name of the qualified expert witness designated by the department to testify at the hearing. G. An Indian child's tribe shall have the opportunity to question a qualified expert witness in all hearings involving an Indian child in which the qualified expert witness testifies, regardless of whether the Indian child's tribe has intervened. An Indian child's tribe may designate a qualified expert witness to testify in addition to any qualified expert witness designated by the department. H. An employee of the department shall not serve as a qualified expert witness pursuant to this section. History: Laws 2022, ch. 41, § 17. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 17 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-18. Voluntary placement agreements; parental rights; consent; withdrawal; fraud or duress. A. Prior to entering any voluntary placement agreement, the department shall make active efforts to prevent the breakup of the Indian family pursuant to the Indian Family Protection Act. B. In a voluntary foster care placement involving an Indian child, an Indian child's parent or guardian may enter into a voluntary placement agreement with the department. An Indian child's parent's or guardian's consent is voidable unless it is executed in writing and recorded before the court. C. The department shall notify the Indian child's tribe by certified mail, with return receipt requested, of the pending voluntary placement agreement and of the Indian child's tribe's right to intervene. D. Before approving a voluntary placement agreement, the court shall ensure that the voluntary placement agreement is executed in writing. The court shall certify on the record that: (1) the terms and consequences of the consent were fully explained in detail and in a manner that is understandable to the parent or guardian; (2) the Indian child's parent or guardian fully understands the English language or that the voluntary placement agreement was interpreted into the primary language of the Indian child's parent or guardian; (3) the child is an Indian child; (4) there is no pending child abuse or neglect investigation involving the Indian child; (5) the Indian child's parent or guardian is voluntarily entering into the voluntary placement without any threat of removal of the Indian child by the department; (6) the department provided notice to the Indian child's tribe via certified or registered mail with return receipt requested; (7) confidentiality has been requested or indicated and execution of consent was made in a closed court proceeding not open to the public; (8) if not represented, the Indian child's parent or guardian is proceeding without an attorney and has the right to consult with an attorney of the Indian child's parent's or guardian's own choosing; and (9) the Indian child's parent or guardian is of sound mind and judgment. E. The request for voluntary placement shall be initiated in writing by the Indian child's parent or guardian, and if good cause is shown and the requirements of Subsection D of this section are met, the department may accept temporary custody or placement and care responsibility. Placement and care responsibility means that the department is legally accountable for the day-to-day care and protection of the Indian child in foster care. Responsibility for placement and care allows the department to make placement decisions about the Indian child, such as where the child is placed and the type of placement that is most appropriate for the Indian child. F. During voluntary placement, the department shall make active efforts to provide tailored case planning to alleviate the causes and conditions leading to the voluntary placement agreement. G. Any consent to a foster care placement that is given prior to or within ten days after birth of an Indian child is voidable. H. An Indian child's parent or guardian may withdraw consent to a voluntary foster care placement of an Indian child pursuant to the Children's Code [Chapter 32A NMSA 1978] at any time. Upon receipt of a request to withdraw, the Indian child shall be returned to the Indian child's parent or guardian. The department shall have up to forty- eight hours after withdrawal of consent to allow for transition arrangements to be made for the Indian child's return to the Indian child's parent or guardian. I. An Indian child shall not remain in voluntary placement for longer than one hundred eighty consecutive days or for more than one hundred eighty days in a calendar year; provided that a child may remain in voluntary placement up to an additional one hundred eighty consecutive days upon order of the court. If the Indian child's parent or guardian seeks to extend the voluntary placement, the department shall file a petition for an extension of voluntary placement prior to the expiration of the initial one-hundred-eighty-day period. The court shall hold a hearing and make a finding within the initial one-hundred-eighty-day period that the extension of voluntary placement is in the best interest of the Indian child. J. If a request for an extension is not filed with the court prior to the initial one- hundred-eighty-day period, the agreement expires. No later than thirty days before the expiration of the initial agreement, the court shall hold a review hearing to determine if the voluntary placement should be extended. K. In no event shall an Indian child remain in voluntary placement for a period in excess of three hundred sixty-five days in any two-year period. L. Any voluntary placement pursuant to this section shall not be considered abandonment, neglect or abuse by an Indian child's parent, guardian or extended family member. M. The parent or guardian whose Indian child is in voluntary placement pursuant to this section shall have the following rights to: (1) have visitation with the child; (2) be informed of changes in the Indian child's school or of changes in the child's placement by the department; (3) authorize decisions regarding medical and dental care and behavioral health services, including decisions that affect the daily care, support, safety and well- being of the child; (4) permit the department to consent to emergency services to ensure the safety and well-being of the Indian child, including medical, dental or behavioral health treatment, if the department is unable to make immediate prior contact with the parent or guardian. The department shall notify the parent or guardian within two hours of making emergency decisions due to inability to make prior contact; (5) consent to all non-emergency and non- routine medical care provided for the child; (6) make decisions regarding participation and attendance in cultural and religious events, including traditional and cultural events offered by the Indian child's tribe; and (7) make decisions of substantial legal significance. N. If new safety concerns are identified during the voluntary placement, the department shall not extend a voluntary placement agreement, but instead shall make a new report of suspected abuse or neglect to be screened for determination of a new department investigation. O. The voluntary placement shall adhere to and be in accordance with the placement preferences set forth in the Indian Family Protection Act. P. All records or information concerning the voluntary placement shall be confidential in accordance with the confidentiality provision of the Indian Family Protection Act. History: Laws 2022, ch. 41, § 18. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 18 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-19. Termination of parental rights. A. In a termination of parental rights proceeding, with respect to an Indian child, the court shall consider whether an alternative to termination of parental rights, including permanent guardianship of the child, would best support the Indian child. B. In a termination of parental rights proceeding in court, when the court knows an Indian child is involved, the party seeking to effectuate the termination of parental rights shall notify the Indian child's tribe by certified mail, with return receipt requested, of the pending proceedings and of its right to intervene. The court shall not order a termination of parental rights proceeding until the department files documentation with the court that the Indian child's tribe received notice of the proceeding. C. In a termination of parental rights proceeding, bonding between the Indian child and the Indian child's foster parent shall not be considered as a factor in terminating parental rights. D. In a termination of parental rights proceeding, a termination shall not be ordered unless: (1) the Indian child's tribe was provided timely notice of the proceeding in accordance with the Indian Family Protection Act and provided an opportunity to state whether it opposes the termination; and (2) the Indian child's tribe proposes an alternate permanency plan, unless the department can show good cause supported by clear and convincing evidence why the alternate permanency plan should not be ordered. E. In a proceeding involving an Indian child, the grounds for any attempted termination shall be proved beyond a reasonable doubt and shall meet the requirements set forth in the Indian Family Protection Act. F. In a termination proceeding involving an Indian child, the court shall, in any termination order, make specific findings of all active efforts and ensure that all of the requirements of the Indian Family Protection Act have been met. G. After the entry of a final decree of adoption of an Indian child in a court that is made pursuant to the Adoption Act [Chapter 32A, Article 5 NMSA 1978], the parent may withdraw consent to the adoption upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate the decree. Upon a finding that the consent was obtained through fraud or duress, the court shall vacate the decree and return the Indian child to the parent. An adoption that has been in effect for at least two years shall not be invalidated except as otherwise provided by law. H. In an adoption proceeding involving a child who is an Indian child, the court- ordered mediation pursuant to Section 32A-4-29 NMSA 1978 shall not be waived and the Indian child's tribe shall be allowed to participate, whether or not the Indian child's tribe intervenes. History: Laws 2022, ch. 41, § 19. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 19 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-20. Petition to court to invalidate action. An Indian child who is the subject of a child custody proceeding, a parent, guardian or Indian custodian from whose custody the child was removed or the Indian child's tribe may petition the court to invalidate that action upon a showing that the action violated any provision of Section 4 [32A-28-4 NMSA 1978], 5 [32A-28-5 NMSA 1978], 7 [32A- 28-7 NMSA 1978], 9 [32A-28-9 NMSA 1978], 12 [32A-28-12 NMSA 1978], 13 [32A-28- 13 NMSA 1978], 14 [32A-28-14 NMSA 1978], 16 [32A-28-16 NMSA 1978], 17 [32A-28- 17 NMSA 1978], 18 [32A-28-18 NMSA 1978], 19 [32A-28-19 NMSA 1978], 21 [32A-28- 21 NMSA 1978], 28 [32A-28-28 NMSA 1978], 34 [32A-28-34 NMSA 1978] or 35 [32A- 28-35 NMSA 1978] of the Indian Family Protection Act. History: Laws 2022, ch. 41, § 20. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 20 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-21. Placement preferences; foster care placement; adoption; guardianship; placement of Indian children. A. In the case of a foster care placement of an Indian child, except as provided in Subsection C of this section, the child shall be placed in the least restrictive setting that: (1) most closely approximates a family, taking into consideration the Indian child's sibling attachment; (2) allows the Indian child's special needs, if any, to be met; (3) is in reasonable geographic proximity to the Indian child's home, extended family members or siblings; and (4) is in accordance with the order of preference established by the Indian child's tribe by any means, or, if that Indian tribe has not established placement preferences, preference shall be given in accordance with the following order of preference: (a) an extended family member of the Indian child; (b) a foster home licensed, approved or specified by the Indian child's tribe; or (c) a foster home licensed or approved by a licensing authority in New Mexico and in which one or more of the licensed or approved foster parents is an Indian. B. Under no circumstances shall an Indian child under three months of age be placed outside of the placement preferences provided in this section. C. If an Indian child is placed in a foster care placement that is contrary to the placement preferences provided in this section, a secondary permanency plan shall not be simultaneously permitted, and before the child's placement may be changed to an adoptive or other permanent placement, the department shall: (1) conduct monitoring at least every thirty days to determine whether a placement that comports with the placement preferences provided in this section is available; (2) at the inception of the case and periodically through the pendancy of the case, make active efforts to identify a placement that aligns with the placement preferences as soon as practicable; and (3) at the inception of the case and periodically through the pendancy of the case, document all active efforts made to identify a placement that aligns with the placement preferences. At minimum, this shall include: (a) contacting the Indian child's tribe; (b) conducting a relative search; (c) interviewing relatives throughout the case; (d) making ongoing active efforts to search for and identify relatives to the Indian child throughout the case; (e) providing the Indian child's tribe with all information regarding family members; (f) offering relatives an expedited foster care license; (g) assisting relatives with practical supports through the licensing process and actively supporting relatives in overcoming barriers for licensure; (h) conducting timely home studies when identifying a placement that aligns with the placement preference; (i) providing continued contact, including visitation; and (j) providing access to culturally appropriate interventions. D. If the Indian child is in a foster care placement that is not a preferred placement, the court shall hold hearings no less than every six months. The department shall continue to bear the burden of establishing why good cause continues to exist for the current placement or why the Indian child is not in a preferred placement. E. Whenever there is any change in placement of an Indian child, the department shall file a notice of placement change with the court. The department shall also notify the Indian child's tribe, by certified mail with return receipt requested. F. If there is a voluntary placement agreement in which the Indian child at first was not determined to be an Indian child and was later determined to be an Indian child, the agreement is voided. G. If the Indian child's tribe has established a different order of preference than that specified in the Indian Family Protection Act, the Indian child's tribe's placement preferences shall apply. H. In determining whether good cause exists, the court shall not permit departure from the placement preferences based on: (1) the socioeconomic status of the placement; (2) a home environment that does not impact the safety and well-being of the Indian child; (3) ordinary bonding or attachment that occurred from time spent in a non- preferred placement that was made in violation of the Indian Family Protection Act; or (4) the extent of the participation of the parents or the Indian child in tribal, cultural, social, religious or political activities. I. In the case of a foster care placement, adoptive placement or guardianship of an Indian child pursuant to the Children's Code [Chapter 32A NMSA 1978], if the Indian child's tribe establishes a different order of preference, the adoption agency or court effecting the placement shall follow the order of preference established by the Indian child's tribe. When appropriate, the preference of the Indian child or parent may be considered; provided that the court has not terminated the parental rights of the Indian child's parent. J. The department shall support and not delay the placement of the Indian child with the Indian child's extended family members and adult relatives regardless of the stage of the case in the child custody proceedings. K. Whenever there is any change in the placement of an Indian child, the department shall file notice of the placement change with the court. L. If the court finds there was a delay in placement with the Indian child's extended family members or adult relatives pursuant to Paragraph (3) of Subsection C of Section 4 [32A-28-4 NMSA 1978] of the Indian Family Protection Act, this factor shall not be used in a finding for good cause to deviate from the placement preferences of this section or the placement preferences of the Indian child's tribe. M. An Indian child shall be placed in accordance with the placement preferences unless there is good cause to depart from the placement preferences as determined by the court after a hearing; provided that: (1) the party that asserts good cause exists not to follow the placement preferences shall state the reasons for this assertion in writing to the court. The court shall make a record. The party making the assertion shall provide all parties to the case and the Indian child's tribe with a copy; (2) the party seeking the departure from the placement preferences has the burden of proving by clear and convincing evidence that there is good cause to depart from the preferences; and (3) a court's determination of good cause to depart from the placement preferences shall be made in writing and be based on the considerations set forth by the Indian Family Protection Act. History: Laws 2022, ch. 41, § 21. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 21 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-22. Indian Family Protection Act responsiveness training. A. The administrative office of the courts in collaboration with the department shall develop and deliver annual mandatory training to all children's court judges, district court judges, attorneys, guardians ad litem and youth attorneys who are court appointed. The training shall include information on: (1) the Indian Family Protection Act, including cultural compacts; and (2) the Indian tribes geographically located within the state. B. The training required in this section shall be required at least annually or no less than every fifteen months. The training shall be open for attorneys or other professionals to attend. C. If an Indian child is placed in a household that does not include a foster parent or guardian who is a member of the Indian child's tribe, upon placement and at least annually thereafter, the department shall provide mandatory training to the foster parent. Training shall address conditions on foster care placements under federal, state and tribal law. The department shall work with each Indian tribe in New Mexico to develop the training required in this section. History: Laws 2022, ch. 41, § 22. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 22 effective July 1, 2023. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-23. Adoptive and guardianship placements; maintenance of culture; cultural compacts. To ensure that the Indian Family Protection Act is fully implemented and that all Indian children have the opportunity to maintain strong connections to their culture, if the household into which an Indian child is placed for adoption or guardianship does not include a parent who is a member of the Indian child's tribe, the court shall require the parties to the adoption to enter a cultural compact, at the discretion of the Indian child's tribe, that documents the parties' agreement regarding how the Indian child will continue to actively participate in the Indian child's cultural learning and activities and engagement with family members. Each cultural compact shall be specific to the Indian child and shall articulate the Indian child's understanding as the Indian child grows and matures. The cultural compact shall become part of the court record, shall be enforced by the court and shall be included in the adoption decree. History: Laws 2022, ch. 41, § 23. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 23 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-24. Transition services. A. Prior to an Indian child's reaching seventeen years of age, the department shall meet with the Indian child, the Indian child's tribe, the Indian child's attorney and others of the Indian child's choosing, including biological family members, to develop a transition plan. The department shall assist the Indian child in identifying and planning to meet the Indian child's needs after the Indian child's eighteenth birthday, including maintenance of culture, housing, education, employment or income, health and mental health, local opportunities for mentors and continuing support services. B. The Indian child's tribe shall be included in developing the transition plan and shall be provided a copy of the transition plan prior to the presentation of the plan to the court pursuant to the Indian Family Protection Act. History: Laws 2022, ch. 41, § 24. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 24 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-25. Discharge hearing. A. At the last review or permanency hearing held prior to the Indian child's eighteenth birthday, the court shall determine whether documentation of the Indian child's tribal membership and any information regarding the Indian child's tribal affiliation have been provided to the Indian child. B. If the court finds that the department has not made active efforts to meet all of the requirements of Section 32A-4-25.3 NMSA 1978 and of Subsection A of this section and that termination of jurisdiction would be harmful to the Indian child, the court may continue to exercise its jurisdiction. The court may dismiss the case at any time after the Indian child's eighteenth birthday for good cause. History: Laws 2022, ch. 41, § 25. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 25 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-26. Abuse or neglect predisposition studies; reports and examinations. If the child is an Indian child, all predispositional studies and reports shall follow the requirements listed in Section 32A-4-21 NMSA 1978 and shall also document: A. whether the placement preferences set forth in the Indian Family Protection Act or the placement preferences of the Indian child's tribe were followed; B. whether the Indian child's case plan provides for maintaining the Indian child's cultural ties as well as the plan detailing how the department shall establish and maintain the Indian child's cultural connections, in conjunction with the Indian child's tribe and family; C. whether active efforts were made by the department to prevent removal of the Indian child from the home prior to placement in substitute care and whether active efforts were made to attempt reunification of the Indian child with the natural parent; D. whether active efforts were made by the department to place siblings in custody together, unless such joint placement would be contrary to the safety or well-being of any of the siblings in custody, and whether any siblings not jointly placed have been provided reasonable visitation or other ongoing interaction, unless visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings; and E. whether the department has provided notification to the Indian child's tribe consistent with the requirements of the Indian Family Protection Act. History: Laws 2022, ch. 41, § 26. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 26 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-27. Permanency hearings; permanency review hearings. A. The department shall submit a copy of any continuation of the dispositional order and notice of any permanency and permanency review hearings to the Indian child's tribe pursuant to notice requirements of the Indian Family Protection Act. B. The department shall submit a progress report that documents: (1) that the Indian child's tribe has been invited to attend the pre-permanency meeting and is included in any attempt to settle issues attendant to the permanency hearing and has the opportunity to participate in developing a proposed treatment plan that serves the Indian child's best interest; (2) that active efforts were conducted to prevent the breakup of the Indian family or to reunify the Indian family; (3) that the placement preferences set forth in the Indian Family Protection Act or the placement preferences of the Indian child's tribe were followed. When placement preferences have not been followed, good cause for noncompliance shall be clearly stated and supported by clear and convincing evidence; (4) the active efforts made pursuant to the Indian Family Protection Act to implement the Indian child's cultural maintenance plan in conjunction with the Indian child's tribe and family; (5) the inclusion of the Indian child's tribe in the department's active efforts for case planning and documentation of the Indian tribe's input; and (6) that all requirements pursuant to the Indian Family Protection Act were followed. History: Laws 2022, ch. 41, § 27. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 27 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-28. Dispositional judgments; court findings. A. At the conclusion of a dispositional hearing in a child custody proceeding involving an Indian child, in addition to other requirements for a court's findings pursuant to the Children's Code [Chapter 32A NMSA 1978], when the judgment is made in a child custody proceeding held pursuant to the Family in Need of Court-Ordered Services Act [Chapter 32A, Article 3B NMSA 1978] or the Abuse and Neglect Act [Chapter 32A, Article 4 NMSA 1978], a court shall include findings of: (1) whether the placement preferences set forth in the Indian Family Protection Act have been incorporated into a plan for family services made pursuant to Section 32A-3B-15 NMSA 1978 or in a case plan as described in Section 32A-4-21 NMSA 1978; provided that if those placement preferences are not incorporated into the plan for family services or the case plan, good cause for noncompliance shall be clearly stated and supported by clear and convincing evidence; (2) whether the plan for family services or the case plan provides for maintenance of the Indian child's cultural ties; (3) how the Indian child's cultural needs are considered and how, when reasonable, access to cultural practices and traditional treatment will be provided to the child; and (4) whether the Indian child's tribe was included in developing the case plan for the Indian child and was provided a copy of the transition plan prior to the presentation of the plan to the court. B. The court shall determine during a review of a dispositional judgment involving an Indian child pursuant to Section 32A-4-25 NMSA 1978 whether the judgment complies with the placement preferences set forth in the Indian Family Protection Act or the placement preferences of the Indian child's tribe and whether the child's case plan as described in Section 32A-4-21 NMSA 1978 provides for maintaining the Indian child's cultural ties. When placement preferences are not followed, good cause for noncompliance shall be clearly stated and supported by clear and convincing evidence. A court's determination of good cause shall be made on the record or in writing and shall be based on the considerations set forth in the federal regulations or other factors authorized by federal and state law. C. The court shall make findings determining that the department made active efforts pursuant to the Indian Family Protection Act to meet the requirements of this section and may continue to exercise its jurisdiction for a period not to exceed one year from the Indian child's eighteenth birthday. The young adult must consent to continued jurisdiction of the court. Additionally, the Indian child may volunteer to participate in the fostering connections program through the department. The court may dismiss the case at any time after the Indian child's eighteenth birthday for good cause. D. When the child is an Indian child, the court shall determine during review of a dispositional order whether all requirements pursuant to Section 27 [32A-28-27 NMSA 1978] of the Indian Family Protection Act were followed. History: Laws 2022, ch. 41, § 28. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 28 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-29. Periodic review of dispositional judgments. A. The initial judicial review shall be held within sixty days of the dispositional judgment. At the initial judicial review: (1) the parties shall demonstrate to the court the active efforts made to implement the treatment plan approved by the court in its dispositional order; and (2) the court shall determine the extent to which the treatment plan has been implemented and make supplemental orders as necessary to ensure compliance with the treatment plan and the safety of the Indian child. B. The court shall determine during review of a dispositional order whether the placement preferences set forth in the Indian Family Protection Act or the placement preferences of the Indian child's tribe were followed and whether the department has made active efforts pursuant to the Indian Family Protection Act to implement the Indian child's treatment plan and reunify the Indian family. C. The children's court attorney shall give notice to the Indian child's tribe of the time, place and purpose of any judicial review hearing held pursuant to the Indian Family Protection Act. D. At any subsequent judicial review hearing held pursuant to Section 32A-4-25 NMSA 1978, the department shall show that it has made active efforts to implement any treatment plan approved by the court in its dispositional order and shall present a treatment plan consistent with the purposes of the Children's Code [Chapter 32A NMSA 1978] for any period of extension of the dispositional order. History: Laws 2022, ch. 41, § 29. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 29 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-30. Permanent guardianship. A. A motion for permanent guardianship shall set forth: (1) the tribal affiliations of the Indian child's parents; (2) the specific actions taken by the petitioner to notify the parents' Indian tribe and the results of the contacts, including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the Indian tribes shall be attached as exhibits to the petition; (3) the specific active efforts made to comply with the placement preferences set forth in the Indian Family Protection Act or the placement preferences of the appropriate Indian tribes and any additional requirements for that motion as provided pursuant to the Indian Family Protection Act; and (4) that notice has been sent by certified mail, with return receipt requested, to the Indian child's tribe and to any Indian custodian pursuant to the Indian Family Protection Act. B. The grounds for permanent guardianship shall be proved beyond a reasonable doubt and meet the requirements of the Indian Family Protection Act. History: Laws 2022, ch. 41, § 30. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 30 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-31. Independent adoptions; pre-placement studies. To be certified to conduct pre-placement studies for the adoption of an Indian child, a person shall meet the standards adopted by the department. History: Laws 2022, ch. 41, § 31. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 31 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-32. Termination procedures in independent adoptions; notice of petition; burden of proof; required findings. A. In addition to the requirements of the Adoption Act [Chapter 32A, Article 5 NMSA 1978], a petition for termination of parental rights involving an Indian child shall set forth: (1) the tribal affiliations of the Indian child's parents; (2) the specific actions taken by the moving party to notify the parents' Indian tribe and the results of the contacts, including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the Indian tribe shall be attached as exhibits to the petition; and (3) the specific active efforts made to comply with the placement preferences of the Indian Family Protection Act. B. Notice of the filing of the petition, accompanied by a copy of the petition, shall be served by the petitioner by certified or registered mail with return receipt requested on the Indian child's tribe and on the Indian child's parents or guardians. C. The grounds for any termination shall be proved beyond a reasonable doubt. D. A judgment of the court terminating parental rights shall include findings establishing that each requirement of the Indian Family Protection Act was met. History: Laws 2022, ch. 41, § 32. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 32 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-33. Persons whose consents or relinquishments are required in an independent adoption. In an independent adoption, consent from the parent or guardian of an Indian child to adoption by the petitioner or relinquishment of parental rights shall be obtained in the manner required by the Indian Family Protection Act. History: Laws 2022, ch. 41, § 33. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 33 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-34. Adjudication; disposition; decree of adoption; invalidation. A. The court shall grant a decree of adoption if it finds that: (1) the petitioner has proved by clear and convincing evidence that the placement preferences set forth in the Indian Family Protection Act, or the placement preferences established by the Indian child's tribe, have been followed or, if not followed, good cause for noncompliance has been proved by clear and convincing evidence; and (2) provision has been made to ensure that the Indian child's cultural ties to the Indian child's tribe are protected and fostered. B. In any adoption involving an Indian child, the clerk of the court shall provide the secretary with a copy of the final decree of adoption or adoptive placement order. C. A parent may withdraw consent to a voluntary adoption of the Indian child at any time before entry of the final decree of adoption. D. Within two years after a final decree of adoption of an Indian child, the court may invalidate a voluntary adoption upon finding that the parent's consent was obtained by fraud or duress. E. Upon filing of a petition to vacate the final decree of adoption of the parent's Indian child, the petitioner shall give notice to all parties to the adoption proceedings and the Indian child's tribe, and the court shall hold a hearing on the petition. F. Where the court finds that the parent's consent was obtained through fraud or duress, the court shall vacate the final decree of adoption, order the consent revoked and order that the child be returned to the parent. History: Laws 2022, ch. 41, § 34. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 34 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-35. Return of custody. Whenever an Indian child has been adopted and the relationship between the adoptive parent and the Indian child has been severed for any reason, a biological parent, guardian or prior Indian custodian may petition for return of custody, and there shall be a presumption that the Indian child shall be returned to the biological parent, guardian or prior Indian custodian, unless the return of custody is not in the best interests of the Indian child. The provisions of this section shall not be deemed to conflict with other provisions pertaining to return of custody in the Indian Family Protection Act. History: Laws 2022, ch. 41, § 35. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 35 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-36. Best interests of Indian child. When making a determination regarding the best interests of an Indian child pursuant to the Indian Family Protection Act, a court shall, after allowing testimony from all parties and the Indian child's tribe, consider the following relevant factors: A. the prioritization of placement of the Indian child in accordance with the placement preferences provided by the Indian Family Protection Act; B. the prevention of unnecessary out-of-home placement of the Indian child; C. the critical importance to the Indian child of establishing, developing or maintaining a political, cultural, social and spiritual relationship with the Indian child's tribe and tribal community and with familial ties such as clanship and family with unique cultural characteristics; D. the importance to the Indian child of the ability of the Indian child's tribe to maintain its existence and integrity in promotion of the stability and security of Indian children and families; and E. the protection, safety and well-being of the Indian child. History: Laws 2022, ch. 41, § 36. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 36 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-37. Access to post-decree adoption records; tribal affiliation and other information. A. Pursuant to the Indian Family Protection Act, an Indian tribe shall have access to the post-decree adoption records that involve an Indian child who is a member or eligible for membership in the Indian tribe. B. Upon application by an Indian person who has reached the age of eighteen and who was the subject of an adoptive placement in this state prior to the enactment of the Indian Family Protection Act, the court that entered the final decree shall inform that Indian person of the tribal affiliation, if any, of the Indian person's biological parents and provide any other information necessary to protect any rights flowing from the Indian person's tribal relationship. C. If the adoption predated enactment of the federal Indian Child Welfare Act of 1978, the court shall attempt to find information related to the adoption and may order the department to assist. If the adoption of an Indian person was completed after enactment of the federal Indian Child Welfare Act of 1978, the Indian person may contact the secretary for necessary information regarding the Indian person's adoption. If the secretary certifies that the secretary does not have that information, the state court shall attempt to find the information and may order the department to assist. D. If an Indian person does not know the court that issued the adoption decree, the Indian person may request that information from the department. The department shall provide to the Indian person the name and location of the court that entered the final decree, if known. History: Laws 2022, ch. 41, § 37. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 37 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-38. Adoption decrees; information availability. A. The clerk of a court entering a final decree or order in an adoptive placement of an Indian child shall provide the secretary with a copy of that decree, adoptive placement order and any other information necessary to show: (1) the birth name and birthdate of the Indian child; (2) any information relating to tribal membership or eligibility for membership of the adopted Indian child; (3) the tribal affiliation and name of the Indian child after adoption; (4) the names and addresses of the biological parents; (5) the names and addresses of the adoptive parents; (6) the name and contact information of any agency having files or information relating to the adoption; and (7) any affidavit signed by the biological parent or parents asking that their identity remain confidential. B. The attorney for the prospective adoptive parent shall provide to the clerk of the court a copy of the decree of adoption, an adoptive placement order or any other information required by the Indian Family Protection Act and a stamped envelope addressed to the secretary marked "Confidential". History: Laws 2022, ch. 41, § 38. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 38 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-39. Confidentiality; records; penalty. A. All records or information, whether on file with the court, an agency, the department, an attorney or other provider of professional services, concerning a party to any proceedings pursuant to the Indian Family Protection Act, including social records, diagnostic evaluations, psychiatric or psychological reports, videotapes, transcripts and audio recordings of an Indian child's statement of abuse or medical reports incident to or obtained as a result of an investigation or proceeding pursuant to the Indian Family Protection Act or that were produced or obtained during an investigation in anticipation of or incident to any proceeding pursuant to the Indian Family Protection Act, shall be confidential and closed to the public. B. The records described in Subsection A of this section shall be disclosed only to the parties and: (1) court personnel and persons or entities authorized by contract with the court to review, inspect or otherwise have access to records or information in the court's possession; (2) court-appointed special advocates appointed to the Indian child in a child custody proceeding; (3) the Indian child's guardian ad litem; (4) the attorney, including a public defender, representing the Indian child in any child custody proceeding pursuant to the Indian Family Protection Act; (5) department personnel and persons or entities authorized by contract with the department to review, inspect or otherwise have access to records or information in the department's possession; (6) any local substitute care review board or any agency contracted to implement local substitute care review boards; (7) law enforcement officials, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978; (8) district attorneys, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978; (9) any state social services agency in any state or when, in the opinion of the department it is in the best interest of the Indian child, a governmental social services agency of another country; (10) an Indian child's tribe; (11) a foster parent, if the records are those of an Indian child currently placed with that foster parent or of an Indian child being considered for placement with that foster parent and the records concern the cultural, social, medical, psychological or educational needs of the Indian child; (12) school personnel involved with the Indian child if the records concern the Indian child's cultural, social or educational needs; (13) a grandparent, parent of a sibling, relative or fictive kin, if the records or information pertain to an Indian child being considered for placement with that grandparent, parent of a sibling, relative or fictive kin and the records or information concern the cultural, social, medical, psychological or educational needs of the Indian child; (14) health care or mental health professionals involved in the evaluation or treatment of the Indian child or of the Indian child's parents or guardian, or other family members; (15) protection and advocacy representatives pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991; (16) children's safehouse organizations conducting investigatory interviews of children on behalf of a law enforcement agency or the department; (17) representatives of the federal government or their contractors authorized by federal statute or regulation to review, inspect, audit or otherwise have access to records and information pertaining to neglect or abuse proceedings; (18) any person or entity attending a meeting arranged by the department to discuss the safety, well-being and permanency of an Indian child, when the parent or child, or parent or guardian on behalf of a child younger than fourteen years of age, has consented to the disclosure; and (19) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court. C. A parent or guardian whose Indian child has been the subject of an investigation of abuse or neglect where no petition has been filed shall have the right to inspect any medical report, psychological evaluation, law enforcement reports or other investigative or diagnostic evaluation; provided that any identifying information related to the reporting party or any other party providing information shall be deleted. The parent or guardian shall also have the right to the results of the investigation and the right to petition the court for full access to all department records and information except those records and information the department finds would be likely to endanger the life or safety of any person providing information to the department. D. In an adoption proceeding, all hearings held pursuant to the Indian Family Protection Act shall be confidential and shall be held in closed court without admittance of any person other than parties and their counsel and the Indian child's tribe. E. In an adoption proceeding, unless the petitioner agrees to be contacted or agrees to the release of the petitioner's identity to the parent and the parent agrees to be contacted or agrees to the release of the parent's identity to the petitioner, the attorneys, the court, the adoption agency and the department shall maintain confidentiality regarding the names of the parties, unless the information is already otherwise known. After the petition is filed and prior to the entry of the decree, the records in adoption proceedings shall be open to inspection only by the attorney for the petitioner, the department or the adoption agency, any attorney appointed as a guardian ad litem or attorney for the adoptee, the Indian child's tribe, any attorney retained by the adoptee or other persons upon order of the court for good cause shown. F. In an adoption proceeding, all information and documentation provided for the purpose of full disclosure is confidential. Documentation provided for the purpose of full disclosure shall remain the property of the person making full disclosure when a prospective adoptive parent decides not to accept a placement. Immediately upon refusal of the placement, the prospective adoptive parent shall return all full disclosure documentation to the person providing full disclosure. A prospective adoptive parent shall not disclose any confidential information received during the full disclosure process, except as necessary to make a placement decision or to provide information to an Indian child's guardian ad litem or attorney or the court. G. In an adoption proceeding, prior to the entry of the decree of adoption, the parent consenting to the adoption or relinquishing parental rights to an agency or the department shall execute an affidavit stating whether the parent will permit contact or the disclosure of the parent's identity to the adoptee or the adoptee's prospective adoptive parents. H. Whoever intentionally and unlawfully releases any information or records closed to the public pursuant to the Indian Family Protection Act or releases or makes other unlawful use of records in violation of that act is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. I. The department shall promulgate rules for implementing disclosure of records pursuant to the Indian Family Protection Act and in compliance with state and federal law and the Children's Court Rules. History: Laws 2022, ch. 41, § 39. ANNOTATIONS Cross references. — For the federal Developmental Disabilities Assistance and Bill of Rights Act, see 42 U.S.C. § 6001. For the federal Protection and Advocacy for Mentally Ill Individuals Act of 1991, see 42 U.S.C. § 10801. For the Children's Court Rules, see Rule 10-101 NMRA et seq. Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 39 effective July 1, 2022. Applicability. — Laws 2022, ch. 41, § 73 provided that the provisions of Laws 2022, ch. 41 apply to all cases filed on or after July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-40. Indian Family Protection Act supplemental to other provisions of law; conflict of laws. A. To the greatest extent possible, the Indian Family Protection Act shall be read as in harmony with the federal Indian Child Welfare Act of 1978. B. The provisions of the Children's Code [Chapter 32A NMSA 1978] are supplemental to and in harmony with the Indian Family Protection Act. The provisions of the Indian Family Protection Act govern child custody proceedings involving Indian children. To the extent the provisions of those acts or any provision of New Mexico state law conflicts with the provisions of the Indian Family Protection Act, the provisions of the Indian Family Protection Act shall apply. History: Laws 2022, ch. 41, § 40. ANNOTATIONS Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901. Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 40 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-41. Office of tribal affairs; creation. The "office of tribal affairs" is created in the department. The office shall be dedicated to ensuring the department's compliance with and full implementation of the Indian Family Protection Act. History: Laws 2022, ch. 41, § 41. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 41 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. 32A-28-42. Indian child welfare rules. The department, through discussion with the Indian nations, tribes and pueblos of the state, shall promulgate rules to implement the provisions of the Indian Family Protection Act. The administrative office of the courts shall also discuss with the Indian nations, tribes and pueblos of the state the recommendation of court rules for potential adoption by the courts of the state. History: Laws 2022, ch. 41, § 42. ANNOTATIONS Effective dates. — Laws 2022, ch. 41, § 74 made Laws 2022, ch. 41, § 42 effective July 1, 2022. Severability. — Laws 2022, ch. 41, § 72 provided that if any provision of the Indian Family Protection Act, related provisions in other sections of New Mexico law or the application of such laws to any person or circumstances is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions of the Indian Family Protection Act and related laws. ARTICLE 29 Federal Benefits for Children in State Custody 32A-29-1. Short title. This act [32A-29-1 to 32A-29-7 NMSA 1978] may be cited as the "Federal Benefits for Children in State Custody Act". History: Laws 2025, ch. 12, § 1. ANNOTATIONS Effective dates. — Laws 2025, ch. 12 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. 32A-29-2. Definition. As used in the Federal Benefits for Children in State Custody Act, "Representative Payee" means a person appointed by a federal agency to manage the benefits the federal agency provides to a child. History: Laws 2025, ch. 12, § 2. ANNOTATIONS Effective dates. — Laws 2025, ch. 12 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. 32A-29-3. Federal benefits provided to children in the legal custody of the department; eligibility determinations. A. Within sixty days after a child enters the department's legal custody, and annually thereafter, the department shall determine whether the child is currently receiving or is eligible to receive federal benefits. B. If it is determined that a child in the legal custody of the department is already receiving federal benefits, the department shall: (1) in consultation with the child and the following individuals, identify the child's representative payee: the child's attorney; the child's custodian; the child's guardian; the child's guardian ad litem; or the child's Indian tribe, if the child is known to be an Indian child; or (2) apply to become the child's representative payee; provided that no other candidate is available. C. If the department determines that a child is eligible for benefits administered by the federal government, the department shall apply: (1) for those benefits on behalf of the child; and (2) to become the child's representative payee if no other candidate is available. History: Laws 2025, ch. 12, § 3. ANNOTATIONS Effective dates. — Laws 2025, ch. 12 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. 32A-29-4. Federal benefits provided to children in the legal custody of the department; obligations of the department when acting as the representative payee. If the department becomes the representative payee of a child in the legal custody of the department, the department shall: A. establish an appropriate account to use and conserve the child's federal benefits, in the child's best interest, for current unmet needs and future needs pursuant to the requirements of the funding source and any applicable asset and resource limits; B. annually determine whether a person, other than the department, is available to assume the role of representative payee and could better serve in that role, in the child's best interest; C. notify the child and the following individuals of any application, decision or appeal related to a child's federal benefits: the child's attorney; the child's custodian; the child's guardian; the child's guardian ad litem; or the child's Indian tribe, if the child is known to be an Indian child. In providing notice of any denial of benefits, the department shall consult with the child's attorney and appeal the denial if it is in the child's best interest; D. provide an annual accounting as to the use, application or conservation of the child's federal benefits to the child and the following individuals: the child's attorney; the child's custodian; the child's guardian; the child's guardian ad litem; or the child's Indian tribe, if the child is known to be an Indian child; E. avoid receiving overpayment of federal benefits and pay any discovered overpayment to the appropriate federal agency; and F. before the child leaves the custody of the department, provide the child with financial literacy and planning tools to assist the child in aligning conserved benefits with the child's transition plan. History: Laws 2025, ch. 12, § 4. ANNOTATIONS Effective dates. — Laws 2025, ch. 12 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. 32A-29-5. Prohibited use of federal benefits. If the department is the child's representative payee, the department shall not use a child's federal benefits to pay for or reimburse the department for any of the costs of the child's care; however, the department may use those benefits to pay for the child's unmet needs beyond what the department is obligated or required or has agreed to pay. History: Laws 2025, ch. 12, § 5. ANNOTATIONS Effective dates. — Laws 2025, ch. 12 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. 32A-29-6. Release of remaining federal benefit funds upon termination of legal custody. If the department is the child's representative payee, upon termination of the department's legal custody of a child, the department shall release any remaining funds to the child's credit pursuant to the requirements of the funding source. In the absence of any requirements, the department shall release the funds to: A. the child, if the child is at least eighteen years old or emancipated; or B. the child's parent or guardian, if the child is younger than eighteen years old or not emancipated. History: Laws 2025, ch. 12, § 6. ANNOTATIONS Effective dates. — Laws 2025, ch. 12 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. 32A-29-7. Reporting. Beginning September 1, 2026 and annually thereafter, the department shall submit a report to the legislative health and human services committee that includes: A. the number of children in its custody who receive federal benefits; B. the type of federal benefits; C. the manner in which those benefits are conserved; and D. the amounts of federal benefits used and conserved. History: Laws 2025, ch. 12, § 7. ANNOTATIONS Effective dates. — Laws 2025, ch. 12 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. ARTICLE 30 Office of Child Advocate 32A-30-1. Short title. Sections 1 through 15 [32A-30-1 to 32A-30-15 NMSA 1978] of this act may be cited as the "Office of Child Advocate Act". History: Laws 2025, ch. 13, § 1. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 1 effective July 1, 2025. 32A-30-2. Definitions. As used in the Office of Child Advocate Act: A. "child in custody" means a minor who is placed by the department in custodial or residential care, including foster care, kinship care or care within a group home, a residential treatment center, a juvenile justice facility, a semi-independent living program or an emergency shelter, pursuant to a court order or otherwise sanctioned by the court and does not live with either of the child's birth parents; B. "committee" means the state child advocate selection committee; C. "department" means the children, youth and families department; D. "near fatality" means an injury or condition caused by abuse or neglect that results in a child: (1) being placed in serious or critical condition, as certified by a licensed physician; and (2) receiving critical care for at least twenty-four hours following the child's admission to a critical care unit; and E. "office" means the office of child advocate. History: Laws 2025, ch. 13, § 2. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 2 effective July 1, 2025. 32A-30-3. Office of child advocate; created. The "office of child advocate" is created and is administratively attached to the office of the attorney general pursuant to Section 9-1-7 NMSA 1978. The office shall maintain autonomy over the office's budget and any decisions the office may take. History: Laws 2025, ch. 13, § 3. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 3 effective July 1, 2025. 32A-30-4. State child advocate; appointment; duties. The head of the office is the "state child advocate", who shall be appointed by the governor with the advice and consent of the senate for a term of six years. The advocate shall be appointed as soon as practicable. The initial term shall end December 31, 2031. At the time of appointment, the state child advocate shall have, at a minimum, five years of documented professional experience working in child protective or juvenile justice services and be licensed in good standing as an attorney, a psychologist or social worker. The state child advocate may be reappointed to two successive terms. An appointed state child advocate shall serve and have all of the duties, responsibilities and authority of that office during the period of time in which the state child advocate is appointed. The attorney general may remove the state child advocate only for malfeasance, misfeasance or abuse of office. The state child advocate shall oversee the office and assign and distribute the work of the state child advocate. History: Laws 2025, ch. 13, § 4. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 4 effective July 1, 2025. 32A-30-5. State child advocate selection committee; duties. A. The "state child advocate selection committee" is created and consists of seven members, including: (1) one member who shall be selected by the president pro tempore of the senate; (2) one member who shall be selected by the minority floor leader of the senate; (3) one member who shall be selected by the speaker of the house of representatives; (4) one member who shall be selected by the minority floor leader of the house of representatives; (5) one member who shall be selected by the governor; and (6) two members who shall be selected by the chief justice of the supreme court. B. The committee shall elect a chair from the committee's membership. C. The committee shall meet by September 1, 2025 exclusively for the purpose of nominating persons to fill the position of state child advocate. The committee shall actively solicit, accept and evaluate applications for the position of state child advocate and may require applicants to submit any information that the committee deems relevant to the consideration of applications. Within ninety days before the date on which the term of a state child advocate ends or no later than thirty days after the occurrence of a vacancy in the state child advocate position, the committee shall convene and, within thirty days after convening, submit to the governor the names of persons who are recommended for appointment to the position by a majority of the committee members. D. The governor shall fill a vacancy or appoint a successor to fill an impending vacancy in the office of state child advocate within thirty days after receiving final nominations from the committee by appointing one of the persons nominated by the committee. E. The committee is administratively attached to the office of the attorney general pursuant to the provisions of Section 9-1-7 NMSA 1978. F. After the initial meeting of the committee, the governor or a majority of the committee members may call a subsequent meeting of the committee to nominate persons to fill a current or impending vacancy in the position of state child advocate. G. The members of the committee shall receive per diem and mileage as provided in the Per Diem and Mileage Act [10-8-1 through 10-8-8 NMSA 1978] and shall receive no other compensation, perquisite or allowance. History: Laws 2025, ch. 13, § 5. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 5 effective July 1, 2025. 32A-30-6. Office of child advocate; powers; duties. The office: A. shall: (1) review the department's provision of services to children and families, receive complaints concerning the actions of the department or of any entity or person that provides services to children and families through funds provided by the department and make appropriate referrals when the state child advocate determines that a child or family may be in need of assistance; (2) determine the extent to which the department's policies and procedures protect and enhance children's personal dignity, right to privacy, appropriate health care and education in accordance with state and federal law; (3) adopt and promulgate rules in accordance with the State Rules Act [Chapter 14, Article 4 NMSA 1978] as are deemed necessary to carry out the provisions of the Office of Child Advocate Act; (4) operate a toll-free hotline and electronic communication portal to receive complaints pursuant to this section; (5) investigate and attempt to resolve complaints made by or on behalf of a child in custody, receiving services under the supervision of the department, subject to a referral to the department or whose parent, guardian or custodian is under investigation by the department; (6) upon rendering a decision to investigate a complaint, notify the complainant of the intention to investigate and, if the office declines to investigate a complaint or continue an investigation, notify the complainant that no further action will be taken by the office; (7) update the complainant on the progress of the investigation within thirty days and notify the complainant and the subjects of the complaint of the final outcome within ninety days of the completion of the investigation; (8) analyze and monitor the development and implementation of federal, state and local laws, regulations and policies relating to child and family welfare and recommend changes when appropriate; (9) provide information about the children's and families' rights and responsibilities related to departmental services; (10) provide comprehensive information concerning child and family welfare to the governor, state agencies and legislators; (11) compile an annual report pursuant to Section 7 [32A-30-7 NMSA 1978] of the Office of Child Advocate Act; (12) access information or records that the department would be entitled to access or receive and that are necessary for carrying out the provisions of the Office of Child Advocate Act; (13) access and review information, records or documents that the department would be entitled to access or receive, including records of third parties, that the office deems necessary to conduct a thorough and independent review of a complaint; and (14) refer any finding of a violation of federal or state constitutional rights, reckless disregard for the health and safety of a child or a pattern of conduct or repeated incidents of violating laws and rules relating to child and family welfare to the attorney general; and B. may: (1) hire and contract for such professional, technical and support staff as needed to carry out the functions of the office; provided that employees of the office, except the state child advocate, are subject to the provisions of the Personnel Act [Chapter 10, Article 9 NMSA 1978]; (2) meet or communicate with any child in custody, receiving services under the supervision of the department or under investigation by the department; and (3) refer a complaint to another agency for investigation. History: Laws 2025, ch. 13, § 6. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 6 effective July 1, 2025. 32A-30-7. Annual report; report contents; creation and maintenance of website containing report information. A. Each year, the office shall submit to the legislative finance committee, legislative health and human services committee, nations, tribes and pueblos of New Mexico, the department, the supreme court and the governor on or before September 1 a report addressing services provided by the department, including: (1) the quality of services provided to children and families; (2) the conditions of placements for New Mexico's children, the number of out-of-state placements and an assessment of each active congregate care and juvenile justice facility in which children in custody are placed; (3) the number of children removed from the household of a parent, foster parent or guardian; (4) the number of children returned to a household from which they were removed; (5) the number of children removed from a household subsequent to being returned to a household from which they were removed; (6) the number of children placed in a juvenile justice facility; (7) the number of children in custody who have run away from a department placement, the number of children in custody who have been found after running away and the number of children in custody who are currently missing; (8) the number of cases in which families subject to court-ordered treatment plans or voluntary placement agreements have absconded with children in custody; (9) a review of systemic issues related to services for assistance to children and families within the child protection and juvenile justice systems; (10) findings and recommendations related to the implementation of the federal Indian Child Welfare Act of 1978 and the Indian Family Protection Act [32A-28-1 to 32A- 28-42 NMSA 1978]; (11) recommendations related to improving department services for children and families; (12) data disaggregated by race, ethnicity, gender, geographic location, sexual identity, disability status, tribal affiliation and any other categories that the office deems necessary; and (13) an outline of the training and certification process for the state child advocate and office staff. B. To the extent possible, the office shall use methodology that is consistent with the system used by federal government agencies for calculating and reporting the data required for the office's annual report. C. The office shall create and maintain a web page on which the data contained in Subsection A of this section shall be provided in an accessible manner and updated quarterly. D. Each year, the annual report shall be posted to the web page created pursuant to Subsection C of this section. History: Laws 2025, ch. 13, § 7. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 7 effective July 1, 2025. Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901, et seq. 32A-30-8. Training and certification. A. The state child advocate shall ensure that office staff are trained in: (1) federal, state, local and tribal laws, regulations and policies with respect to child protection and juvenile justice services in the state; (2) investigative techniques, including trauma-informed care and questioning; (3) the federal Indian Child Welfare Act of 1978, the Indian Family Protection Act [32A-28-1 to 32A-28-42 NMSA 1978], tribal culture, tribal relations and sovereign nation status; (4) department policies and procedures, including policies and procedures related to abuse and neglect, out-of-home placement and safety and risk assessments; and (5) such other matters as the office deems appropriate. B. The state child advocate shall develop procedures for the training and certification of appropriate staff. C. An officer, employee or other representative of the office shall not investigate any complaint filed with the office unless that person is certified by the office. History: Laws 2025, ch. 13, § 8. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 8 effective July 1, 2025. Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901, et seq. 32A-30-9. Conflict of interest. Persons who are employees of the office or who have contracts with the office shall not have a conflict of interest with the department or with an entity that provides services to children and families through funds provided by the department relating to the performance of their responsibilities pursuant to the Children's Code [Chapter 32A NMSA 1978]. For the purposes of this section, a conflict of interest exists whenever the state child advocate, an employee of the office or a person having a contract with the office: A. has direct involvement in the licensing, certification or accreditation of a provider or facility delivering services to children and families; B. has an ownership interest in a provider or facility delivering services to children and families; C. is employed by or participates in the management of a provider or facility delivering services to children and families; or D. receives or has the right to receive, directly or indirectly, remuneration pursuant to a compensation arrangement with a provider or facility delivering services to children and families. History: Laws 2025, ch. 13, § 9. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 9 effective July 1, 2025. 32A-30-10. Incidents, fatalities and near fatalities. A. The department shall provide the office with a copy of all reports related to actual physical injury to a child in custody. B. The department shall provide the office with a written notification within seventy- two hours of: (1) a fatality or near fatality of a child in custody or referred or receiving services under the supervision of the department; and (2) the restraint or seclusion of a child in custody. History: Laws 2025, ch. 13, § 10. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 10 effective July 1, 2025. 32A-30-11. Law enforcement reports. Upon request by the office, law enforcement agencies shall share with the office all law enforcement reports involving a child in custody, receiving services under the supervision of the department or whose parent, guardian or custodian is under investigation by the department. History: Laws 2025, ch. 13, § 11. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 11 effective July 1, 2025. 32A-30-12. Confidentiality of information. A. Except as provided in Subsection B of this section, the office shall maintain the confidentiality of all case records, third-party records and court records, as well as any information gathered in the course of investigations and system monitoring duties. These records are exempt from public inspection and copying pursuant to the Inspection of Public Records Act [Chapter 14, Article 2 NMSA 1978] and shall be kept confidential unless disclosure is: (1) ordered by the court; (2) necessary to prevent imminent harm and the imminent harm is communicated directly to the state child advocate or staff of the office; (3) necessary to the department for the department to determine the appropriateness of initiating an investigation regarding potential abuse or neglect or other emergency circumstances; or (4) necessary to the department for the department to determine the appropriateness of initiating an investigation to determine facility compliance with applicable rules of licensure or certification or both. B. The office may publicly report any patterns of conduct or repeated incidents identified by the office in carrying out the provisions of the Office of Child Advocate Act; provided that the office shall not publicly disclose either of the following: (1) individually identifiable information about a child; and (2) investigation findings when there is a pending law enforcement investigation or prosecution. History: Laws 2025, ch. 13, § 12. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 12 effective July 1, 2025. 32A-30-13. Other remedies. An individual who pursues remedies pursuant to the Office of Child Advocate Act is not precluded from pursuing other legal or equitable remedies. History: Laws 2025, ch. 13, § 13. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 13 effective July 1, 2025. 32A-30-14. Notification of office of child advocate. The department shall notify all children in custody, receiving services under the supervision of the department or under investigation by the department and their parents, guardians, foster parents and fictive kin of the existence of the office, its purpose and function and its toll-free hotline and electronic communication portal with instructions for access. History: Laws 2025, ch. 13, § 14. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 14 effective July 1, 2025. 32A-30-15. Action by the attorney general. A. The attorney general may bring a civil cause of action for declaratory or injunctive relief against the department based on a finding by the office of a violation of federal or state constitutional rights, reckless disregard of the health and safety of a child or a pattern of conduct or repeated incidents of violating laws and rules relating to child and family welfare. B. The attorney general shall develop and implement procedures to prevent conflicts of interest in the investigation or prosecution of the department or an employee of the department, including procedures regarding segregation or sequestration of information related to such investigations or prosecutions. C. The authority provided in this section is in addition to the other powers and duties of the attorney general and does not prevent prosecution for a violation of the Criminal Code [30-1-1 NMSA 1978]. History: Laws 2025, ch. 13, § 15. ANNOTATIONS Effective dates. — Laws 2025, ch. 13, § 19 made Laws 2025, ch. 13, § 15 effective July 1, 2025. ARTICLE 31 Families First 32A-31-1. Short title. Sections 14 through 17 [32A-31-1 to 32A-31-4 NMSA 1978] of this act may be cited as the "Families First Act". History: Laws 2025, ch. 156, § 14. ANNOTATIONS Effective dates. — Laws 2025, ch. 156 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. 32A-31-2. Definitions. As used in the Families First Act: A. "families first services" means foster care prevention services categorized pursuant to the federal Title IV-E prevention services clearinghouse as well-supported, supported or promising that are included in the families first strategic plan implemented pursuant to the Families First Act and are provided by the department through the implementation of that strategic plan; and B. "families first strategic plan" means the plan required pursuant to the Families First Act that is developed and implemented by the department in accordance with the regulations and requirements set forth in the federal Family First Prevention Services Act. History: Laws 2025, ch. 156, § 15. ANNOTATIONS Effective dates. — Laws 2025, ch. 156 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. Cross references. — For the federal Family First Prevention Services Act see Pub. L. No. 115-123, §§ 50701–50781, 132 Stat. 64 (2018) 32A-31-3. Families first strategic plan; department duties; families first services; time line; implementation. A. In consultation with the early childhood education and care department, the health care authority and the department of health, the department shall develop and implement the families first strategic plan. In developing the families first strategic plan, the department shall: (1) ensure that provisions of the families first strategic plan align with and meet the requirements set forth in the federal Family First Prevention Services Act; and (2) maximize resources from the federal government under Title IV-E that are available to the department to provide families first services. B. The families first strategic plan required pursuant to Subsection A of this section shall: (1) include a comprehensive description of the department's responsibilities and duties for providing families first services; (2) include a comprehensive and detailed list of each of the families first services the department will provide to eligible persons and affirm that each service to be provided: (a) is eligible for reimbursement pursuant to the federal Family First Prevention Services Act; and (b) is rated as promising, supported or well-supported in accordance with the Title IV-E prevention services clearinghouse; (3) identify all network services providers, including other state agencies, that the department will use for providing families first services. If services are provided by another state agency, the department, together with the other state agency, shall establish safety monitoring protocols for direct monitoring of the services provided by that agency and, for each provider used by the department, list the specific families first service that the network services provider will provide, including: (a) mental health or substance abuse prevention and treatment; (b) in-home parent skill-based programs; (c) kinship navigator programs; or (d) any other programs or services that are eligible or become eligible for reimbursement pursuant to the federal Family First Prevention Services Act; (4) identify and define the population of eligible persons who may receive families first services and include, at a minimum: (a) a child who is a candidate for foster care but who can remain safely at home with the provision of evidence-based services; (b) a parent, guardian or caregiver of a child at risk of entering foster care; (c) a pregnant or parenting youth in foster care; and (d) other eligible persons identified by the department; (5) identify processes and procedures to be established and followed by the department to determine eligibility for any families first service; (6) identify processes and procedures to be established and followed by the department to maximize federal reimbursements, funding and resources available to the department to provide families first services; (7) identify the process that the department will use to monitor and oversee the safety of children who receive families first services and programs, as required by the federal Family First Prevention Services Act; (8) establish appropriate metrics the department will use to determine and evaluate outcomes from the department's provision of families first services pursuant to the Families First Act, including outcomes related specifically to repeated substantiated reports of maltreatment of a child and the numbers of children entering foster care; (9) establish an appropriate time line and strategy for providing families first services statewide. The time line shall include the following: (a) no later than June 30, 2027, the department shall provide families first services through a pilot program that is designed for implementation considering factors such as county population density and rates of child maltreatment and repeat maltreatment; and (b) no later than June 30, 2032, the department shall provide statewide implementation of families first services rolled out in a manner consistent with the best practices derived from the evaluation of the pilot program; (10) provide a detailed description of how the department will continuously monitor the families first strategic plan, from development of the plan through the pilot program phase and to statewide implementation. Included in that description shall be how the department will monitor key factors likely to best ensure fidelity to the service model developed within the families first strategic plan; and (11) identify the appropriate information to include in an annual report to be provided by the department to the legislative finance committee, the interim legislative health and human services committee, the interim legislative committee that studies courts, corrections and justice and the governor. At a minimum, the annual report shall include the following information: (a) an up-to-date inventory of all families first services available; (b) data, without inclusion of personal identifier information, regarding the uptake and program completion among eligible individuals of families first services, including the area of the state in which the services were accessed; (c) performance results regarding identified outcome measures, to include aggregate data about child participant placement status at the beginning of services and one year after services and whether the child entered foster care within two years after being determined a candidate for foster care and receiving families first services; and (d) fiscal information regarding program and service expenditures and disaggregating state and federal revenue sources. C. For the purposes of this subsection, "approving authority" means the federal administration for children and families. The department shall: (1) no later than August 1, 2025, finalize the provisions of the families first strategic plan, post the plan to the department's website and provide a copy of the plan to the legislative finance committee, the interim legislative health and human services committee, the interim legislative committee that studies courts, corrections and justice and the governor; (2) no later than September 1, 2025: (a) submit the families first strategic plan to the approving authority for approval; and (b) begin providing families first services pursuant to the provisions of the Families First Act; (3) if a submitted strategic plan is not approved and the approving authority indicates that to secure an approval, the strategic plan must be revised, as soon as practicable: (a) revise the families first strategic plan in accordance with the revisions required by the approving authority; and (b) submit the revised strategic plan to the approving authority; and (4) include in the department's reports required pursuant to the Families First Act the status of each families first strategic plan submitted to the approving authority for approval, including any specific revisions required, the dates of submissions and the dates of approval or nonapproval by the approving authority for each submitted strategic plan and any other relevant information related to the status of a families first strategic plan submitted to the approving authority by the department. D. No later than July 1, 2026, and by each July 1 thereafter, the department shall post the annual report as established in the families first strategic plan pursuant to the Families First Act to the department's website, and the department shall submit the annual report to the legislative finance committee, the interim legislative health and human services committee, the interim legislative committee that studies courts, corrections and justice and the governor. History: Laws 2025, ch. 156, § 16. ANNOTATIONS Effective dates. — Laws 2025, ch. 156 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. 32A-31-4. Rules. By August 1, 2027, the department shall promulgate and adopt rules as necessary to carry out the provisions of the Families First Act. History: Laws 2025, ch. 156, § 17. ANNOTATIONS Effective dates. — Laws 2025, ch. 156 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2025, 90 days after adjournment of the legislature. ARTICLE 32 Child Care Assistance Program 32A-32-1. Short title. Sections 2 through 8 [32A-32-1 to 32A-32-7 NMSA 1978] of this act may be cited as the "Child Care Assistance Program Act". History: Laws 2026, ch. 63, § 2. ANNOTATIONS Effective dates. — Laws 2026, ch. 63 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 20, 2026, 90 days after adjournment of the legislature. 32A-32-2. Definitions. As used in the Child Care Assistance Program Act: A. "at-risk child" means a child who may be vulnerable to or experiencing negative outcomes due to factors such as poverty, domestic violence, substance abuse, mental health issues, family involvement in the justice system, housing instability or homelessness; who has or is at risk of having a developmental delay or a disability; or whom the children, youth and families department identifies as experiencing or at risk for abuse or neglect; B. "child care assistance" means funding administered by the department to a child care facility to provide child care for eligible children through the child care assistance program; C. "child care facility" means a public or private entity, facility or premises that is licensed or registered and regulated by the department at which children receive child care services, including care, education and supervision, for less than twenty-four hours per day; D. "consensus revenue estimating group" means the professional economists or revenue analysts from the department of finance and administration, the taxation and revenue department, the department of transportation and the legislative finance committee; E. "department" means the early childhood education and care department; F. "developmental delay" means a discrepancy between chronological age, after correction for prematurity, and developmental age in one or more of the following areas of development: cognition; communication; physical and motor development, including vision and hearing; social and emotional development; and adaptive development; G. "disability" means a severe chronic disability of a person that is attributable to a mental or physical impairment; H. "early intervention" means services provided through the family, infant, toddler program of the department that are designed to meet the developmental needs of children from birth to age three who have or who are at risk of having a developmental delay or disability; I. "early intervention provider" means a person who provides early intervention; J. "early pre-kindergarten program" means an early pre-kindergarten program as defined in the Pre-Kindergarten Act [Chapter 32A, Article 23 NMSA 1978]; K. "earned income" means income received as gross wages from employment or as profit from self-employment; L. "incapacitation" means a person is unable to meet an eligibility requirement due to an inability to care for a child because of a disability, health-related illness, rehabilitation treatment or other reason as determined by the department; M. "legal guardian" includes both a temporary and permanent legal guardian or custodian; N. "pre-kindergarten program" means a pre-kindergarten program as defined in the Pre-Kindergarten Act; O. "resident" means a person who is domiciled in New Mexico, including a person who is homeless or who is temporarily residing in a domestic violence or homeless shelter; provided that for the purposes of the Child Care Assistance Program Act, a person may have only one domicile; and provided further that for a federally eligible applicant, the applicant's residency determination shall be aligned with applicable federal regulations; P. "tiered quality rating system" means the system developed by the department to rate the level of quality of a licensed child care facility; and Q. "unearned income" means income in the form of benefits, such as benefits received pursuant to state and federal programs, child support, pensions, gifts, loans, grants and other income that is not income received as gross wages from employment or as profit from self-employment. History: Laws 2026, ch. 63, § 3. ANNOTATIONS Effective dates. — Laws 2026, ch. 63 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 20, 2026, 90 days after adjournment of the legislature. 32A-32-3. Child care assistance program; eligibility requirements. A. The "child care assistance program" is created in the department to provide child care assistance for eligible children, subject to appropriation. The department shall promulgate rules necessary to carry out the provisions of the program. B. To participate in the child care assistance program, an application shall be submitted to the department in the manner and form prescribed by the department and shall align with applicable federal regulations. Subject to the provisions of Subsection C of this section, a person is eligible for child care assistance if an application is submitted on behalf of a resident child receiving child care assistance who is under the age of thirteen years at the time of application, or under the age of nineteen years if the child is physically or mentally incapable of caring for the child's self or is under court supervision. The department shall redetermine eligibility for child care assistance at a frequency level aligned with federal regulation. C. To be eligible to participate in the child care assistance program, each parent or legal guardian of a child receiving child care assistance who lives in the household with the child shall be: (1) employed; (2) a full-time student and enrolled in at least twelve credit hours at an accredited educational institution; (3) a part-time student and enrolled in at least six credit hours at an accredited educational institution; (4) enrolled in a state-approved job training program, registered apprenticeship program or pre-apprenticeship program; (5) receiving aid from the federal temporary assistance for needy families program; (6) experiencing homelessness; (7) under the age of twenty-one and attending primary or secondary school; (8) participating in services pursuant to the federal Comprehensive Addiction and Recovery Act of 2016 provided by the children, youth and families department; (9) a grandparent raising the grandparent's grandchild; (10) a foster parent; or (11) engaged in an eligible activity or exempted from the eligible activity for a reason, including incapacitation, as determined by department rule and in accordance with federal regulations. D. If a parent or legal guardian who applies for child care assistance has an annual household income greater than six hundred percent of the federal poverty level, the eligibility for child care assistance shall be limited to the hours of care supported by the parent's or legal guardian's qualifying activity schedule. E. Eligibility may be granted for up to ninety days for applicants seeking employment. F. An application to the department shall include documentation evidencing that the applicant meets the requirements to be eligible to participate in the child care assistance program and shall include documentation of earned and unearned income. To determine residency in New Mexico, the applicant shall provide a current New Mexico driver's license or other documentation proving residence in New Mexico as determined by department rule; provided that for a federally eligible applicant, the applicant's residency determination shall align with applicable federal regulations. G. Unless determined necessary by the department, a child shall not be eligible for child care assistance for the hours of care in which the child is enrolled in a head start program, an early head start program, an early pre-kindergarten program or a pre- kindergarten program. H. The department may make a presumption of eligibility for the child care assistance program based on proof of the child's residency and proof of parentage or guardianship before the documentation required pursuant to Subsection C of this section is received. Presumption of eligibility shall not exceed the allowable duration permitted by the federal government upon initial application. History: Laws 2026, ch. 63, § 4. ANNOTATIONS Cross references. — For the federal Comprehensive Addiction and Recovery Act of 2016 see Pub. L. No. 114-198, 130 Stat. 695. Effective dates. — Laws 2026, ch. 63 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 20, 2026, 90 days after adjournment of the legislature. 32A-32-4. Fiscal controls. A. A parent or legal guardian may be required to pay a child care facility a copayment for child care services; provided, however, that the department shall provide a parent or legal guardian with ninety days' notice prior to the implementation of a copayment. B. Beginning after one of the conditions pursuant to Subsection C of this section is met, and continuing through the remainder of the applicable fiscal year, the department shall develop and implement one or more of the following: (1) a sliding scale payment schedule applicable to monthly copayments as provided in Subsection D of this section; (2) a waitlist as provided in Subsection E of this section if demand for child care assistance exceeds the availability of funds within the fiscal year; or (3) a combination of both Paragraphs (1) and (2) of this subsection. C. The department shall develop and implement one or more of Paragraphs (1) through (3) of Subsection B of this section if, in a given year, any of the following conditions is met: (1) the number of children receiving child care assistance services exceeds that year's projected enrollment by three percent as determined by the department and reported to the legislative finance committee on August 1 of each calendar year; (2) the state recurring general fund revenue growth percentage is projected to be lower than the percentage change in the annual consumer price index for all urban consumers for the prior calendar year as determined by the consensus revenue estimating group; (3) the twelve-month average percentage change in the annual consumer price index for all urban consumers exceeds three percent; (4) the average price for west Texas intermediate crude oil during the applicable fiscal year is less than fifty dollars ($50.00) per barrel as determined by the consensus revenue estimating group; or (5) the department identifies a different or additional condition. D. For a sliding scale payment schedule applicable to monthly copayments pursuant to Paragraph (1) of Subsection B of this section, the payment schedule shall be implemented to ensure that the amount appropriated for the child care assistance program is sufficient to meet the costs of the program and that a monthly copayment shall not exceed one-twelfth of the percentages provided in Paragraphs (1) through (3) of this subsection as applied to an applicant's annual household income. The payment schedule shall be as follows: (1) copayments for an applicant with an annual household income of six hundred percent or less of the federal poverty level shall be waived; (2) copayments shall be three percent or less of the annual household income for a household with income greater than six hundred percent but not exceeding nine hundred percent of the federal poverty level for all children in care; provided that the amount shall not exceed twenty-five percent of the average rate paid for the applicable age group to the child care facility; and (3) copayments shall be seven percent or less of the annual household income for a household with income greater than nine hundred percent of the federal poverty level for all children in care; provided that the amount shall not exceed fifty percent of the average rate paid for the applicable age group to the child care facility. E. For a waitlist maintained pursuant to Paragraph (2) of Subsection B of this section, to avoid a possible funding deficiency, the department shall prioritize all available child care assistance for children with developmental delays or disabilities, at- risk children and children from birth to age three in households with annual household incomes of less than four hundred percent of the federal poverty level. The department shall report to the legislative health and human services committee and the legislative finance committee biannually regarding waitlist implementation, including the number of children added to the waitlist by month and the number of children moved off of the waitlist by month. The reports shall include redacted demographic information, including each family’s annual income as a percentage of the federal poverty level, the length of time each child has been on the waitlist, the age of the child and the child’s at- risk factors, if applicable. F. The department shall expend federal child care assistance funds, including required state match and maintenance of efforts amounts, for federally eligible children prior to expending state funds for child care assistance. The department shall reasonably ensure that eligible federal and state child care tax benefits are maximized. G. The department shall provide child care assistance to children aged six through twelve years who are eligible for federal child care assistance, and the department shall not exceed thirteen thousand child care assistance slots for children aged six through twelve years who are not federally eligible, except as provided for a child through age eighteen years if that child is under court supervision or is physically or mentally incapable of self-care. The department shall maintain a waitlist and prioritize applicants based on whether an application is for an at-risk child and on families' annual incomes from lowest to highest percentage of the federal poverty level. History: Laws 2026, ch. 63, § 5. ANNOTATIONS Effective dates. — Laws 2026, ch. 63 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 20, 2026, 90 days after adjournment of the legislature. 32A-32-5. Payment rates for child care assistance services. A. Payment rates for the child care assistance program shall be subject to the availability of funds and shall be set by rule of the department and updated as required by federal law. Payment rates shall: (1) be based on a cost estimation model in accordance with the requirements of the federal child care and development fund program authorized by the federal Child Care and Development Block Grant Act of 1990, as amended; (2) correspond to differences in quality based on the tiered quality rating system of the department; (3) be sufficient to meet the requirements of each tier and ensure adequate wages for child care facility staff; (4) include thresholds appropriate for each facility type and age groups of children and full-time, part-time or wrap-around care; (5) include a differential rate for care that is provided during nontraditional hours of operation; and (6) incorporate feedback and input from early childhood education and development experts, a diverse group of child care facilities of a variety of facility types, families and organizations representing child care directors, tribal representatives, advocacy organizations, teachers and other relevant parties as determined by the department. B. The department may create an enhanced monthly rate schedule with a monthly payment rate not to exceed an average of ten percent above the rate provided in Subsection A of this section for a child care facility. C. The portion of the rates set pursuant to this section that are used for salaries and benefits and toward the wage scale and career ladder shall be determined by rule of the department, with a report submitted to the legislature within two weeks of making a determination pursuant to this subsection. History: Laws 2026, ch. 63, § 6. ANNOTATIONS Cross references. — For the federal Child Care and Development Block Grant Act of 1990 see Pub. L. No. 101-508, § 5082, 104 Stat. 1388-236. Effective dates. — Laws 2026, ch. 63 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 20, 2026, 90 days after adjournment of the legislature. 32A-32-6. Requirements; child care facilities; early intervention providers. A. A child care facility that participates in the child care assistance program shall: (1) not accept or receive child care assistance for hours that a child is enrolled in a head start program or an early head start program or an early pre- kindergarten program or a pre-kindergarten program, except when determined necessary by the department; (2) not accept or require payment or donations in any form from an eligible child's family who is participating in the child care assistance program for an eligible child to be admitted or enrolled beyond the rate paid by the department for the hours paid for through the child care assistance program; (3) refer an at-risk child to appropriate programs of the department and, when applicable, to an appropriate tribal department for services; (4) meet and maintain required training as set by rule of the department to identify and refer at-risk children to home visiting and the family, infant, toddler programs of the department and of tribal departments, as appropriate; (5) meet and maintain required professional development and certification pathways, as set by rule of the department; (6) not unreasonably exclude early intervention providers from accessing a child care setting to provide early intervention services. If intervention providers are excluded for any reason, a facility shall notify the department within forty-eight hours; (7) report to the department program participation, daily hours of operation, days of care provided annually, professional qualifications of staff members, including staff members' roles and levels as established in the department's wage scale and career ladder framework, salaries and benefits for each employee and the employee benefit structure; (8) submit an annual report to the department by July 1 of each year in a manner prescribed by the department that contains the following child care facility business information: (a) the legal name and address of the business; (b) the legal name and address of any management company, owner or entity with a direct or indirect ownership interest in the business; (c) the name and address, if applicable, of any members of a board of directors of the business; (d) the legal structure of the business, including its form of organization; (e) the legal structure of any owner or ownership entity of the business; (f) each investment in the business by any person or entity comprising a ten percent equity stake or greater; (g) each debt or lien against the business comprising at least ten percent of the annual revenue of the business; (h) all documentation of any changes in ownership of the business in the past five years, including sales, transfers, mergers or acquisitions; and (i) all details of any out-of-state sources of funding or investment for the business; and (9) comply with department requirements promulgated by rule. B. If a child is referred for early intervention, an early intervention provider shall not intervene without express authorization by the parent, legal guardian or custodian of the child. C. The department shall create a reporting mechanism for early intervention providers to report suspected child abuse or neglect occurring in a child care facility and for a child care facility to report suspected child abuse or neglect by early intervention providers. D. A child care facility that participates in the child care assistance program shall notify the department of any ownership changes to the facility within sixty days of the transaction closing. E. Funds received by a child care facility for services provided by the facility pursuant to the child care assistance program shall not supplant funds pursuant to the state equalization guarantee distribution or funds appropriated for instructional or general funding. F. Nothing in the Child Care Assistance Program Act shall be construed to limit language- and culturally appropriate child care or limit any educational regulations adopted by Indian nations, tribes or pueblos related to language- and culturally appropriate child care. History: Laws 2026, ch. 63, § 7. ANNOTATIONS Effective dates. — Laws 2026, ch. 63 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 20, 2026, 90 days after adjournment of the legislature. 32A-32-7. Department duties; sharing of information. A. The department shall develop the child care assistance program to enhance child care quality and improve the development of participating children. Through the administration of the child care assistance program, the department shall promote parental choice, allowing parents to choose the care that best suits the child's family through a mixed delivery system that may include public, private, nonprofit, for-profit, faith-based and tribal child care facilities. In carrying out its duties, the department shall: (1) implement internal controls that ensure integrity of and accountability for the child care assistance program while maintaining continuity of the program; and (2) report any suspected intentional misuse of funds to local law enforcement and the local district attorney or the attorney general for prosecution; provided that upon a report being made to law enforcement pursuant to this paragraph, the department shall report the suspected intentional misuse of funds by the child care facility to the state auditor, who shall investigate the child care facility. B. The department shall perform at least two unannounced visits per year to each child care facility that shall include a compliance review of the Child Care Assistance Program Act requirements and compliance with the rules set by the department. C. Registered child care providers shall not be eligible for capital improvement costs, maintenance costs or repair costs funded by the state or through the child care assistance program. The department shall provide by rule a pathway for licensure of registered child care providers. D. By September 1, 2026 and each September 1 thereafter, the department shall provide to the legislative health and human services committee and the legislative finance committee a report on implementation of the Child Care Assistance Program Act, including costs, a review of the cost estimation model and payment rates set pursuant to Section 5 [32A-32-5 NMSA 1978] of the Child Care Assistance Program Act, program participation by child care facility type, children and families served by that act, the distribution of child care assistance based on an eligibility category, income and race or ethnicity by the tiered quality rating system throughout the state, participation in the child and adult care food program by child care facility type and the information reported pursuant to Paragraphs (7) and (8) of Subsection A of Section 7 [32A-32-6 NMSA 1978] of that act. E. All agencies that are part of the children's cabinet pursuant to the Children's Cabinet Act shall share data and other information necessary with the department in order for the department to carry out the provisions of the Child Care Assistance Program Act. History: Laws 2026, ch. 63, § 8. ANNOTATIONS Effective dates. — Laws 2026, ch. 63 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 20, 2026, 90 days after adjournment of the legislature.