NMSA 1978, § 32A-4-1 Short title
32A-4-1. Short title
Chapter 32A, Article 4 NMSA 1978 may be cited as the "Abuse and Neglect Act".
1978 Comp., § 32A-4-1, enacted by Laws 1993, ch. 77, § 95; 2016, ch. 54, § 1.
Child Abuse and Neglect
NMSA 1978 ch. 32A, art. 4
in effectNMSA 1978, § 32A-4-2 Definitions
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.
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.
NMSA 1978, § 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
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.
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.
NMSA 1978, § 32A-4-4 Complaints; referral; preliminary inquiry
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.
1978 Comp., § 32A-4-4, enacted by Laws 1993, ch. 77, § 98; 2005, ch. 189, § 39; 2019, ch. 137, § 1, 2023, ch. 172, § 1.
NMSA 1978, § 32A-4-4.1 Multilevel response system
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.
1978 Comp., § 32A-4-4.1, as enacted by Laws 2019, ch. 137, § 2; 2025, ch. 156, § 9.
NMSA 1978, § 32A-4-5 Admissibility of report in evidence; immunity of reporting person; investigation of report
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.
1978 Comp., § 32A-4-5, enacted by Laws 1993, ch. 77, § 99; 1995, ch. 206, § 22; 2005, ch. 189, § 40; 2009, ch. 239, § 34.
NMSA 1978, § 32A-4-6 Taking into custody; penalty
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.
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.
NMSA 1978, § 32A-4-7 Release or delivery from custody
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.
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.
NMSA 1978, § 32A-4-8 Place of temporary custody
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].
1978 Comp., § 32A-4-8, enacted by Laws 1993, ch. 77, § 102; 2019, ch. 21, § 2.
NMSA 1978, § 32A-4-9 Indian child placement; preferences
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.
1978 Comp., § 32A-4-9, enacted by Laws 1993, ch. 77, § 103.
NMSA 1978, § 32A-4-10 Basic rights
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.
1978 Comp., § 32A-4-10, enacted by Laws 1993, ch. 77, § 104; 2005, ch. 189, § 43.
NMSA 1978, § 32A-4-11 Use immunity
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.
1978 Comp., § 32A-4-11, enacted by Laws 1993, ch. 77, § 105.
NMSA 1978, § 32A-4-12 Protective orders
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.
1978 Comp., § 32A-4-12, enacted by Laws 1993, ch. 77, § 106.
NMSA 1978, § 32A-4-13 Contempt power
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.
1978 Comp., § 32A-4-13, enacted by Laws 1993, ch. 77, § 107.
NMSA 1978, § 32A-4-14 Change in placement
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.
1978 Comp., § 32A-4-14, enacted by Laws 1993, ch. 77, § 108; 2005, ch. 189, § 44; 2009, ch. 239, § 37.
NMSA 1978, § 32A-4-15 Petition; authorization to file
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.
1978 Comp., § 32A-4-15, enacted by Laws 1993, ch. 77, § 109.
NMSA 1978, § 32A-4-16 Ex-parte custody orders
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.
1978 Comp., § 32A-4-16, enacted by Laws 1993, ch. 77, § 110.
NMSA 1978, § 32A-4-17 Summons; content
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.
1978 Comp., § 32A-4-17, enacted by Laws 1993, ch. 77, § 111.
NMSA 1978, § 32A-4-17.1 Notice to grandparents and relatives
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.
1978 Comp., § 32A-4-17.1, enacted by Laws 2016, ch. 54, § 3.
NMSA 1978, § 32A-4-18 Custody hearings; time limitations; notice; probable cause
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.
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.
NMSA 1978, § 32A-4-19 Adjudicatory hearings; time limitations
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.
1978 Comp., § 32A-4-19, enacted by Laws 1993, ch. 77, § 113; 1997, ch. 34, § 3; 2009, ch. 239, § 39.
NMSA 1978, § 32A-4-20 Conduct of hearings; findings; dismissal; dispositional matters; penalty
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.
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.
NMSA 1978, § 32A-4-21 Neglect or abuse predisposition studies, reports and examinations; support services
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.
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.
NMSA 1978, § 32A-4-22 Disposition of adjudicated abused or neglected child
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.
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.
NMSA 1978, § 32A-4-23 Disposition of a child with a mental disorder or a developmental disability in a proceeding under the Abuse and Neglect Act
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.
1978 Comp., § 32A-4-23, enacted by Laws 1993, ch. 77, § 117; 1995, ch. 206, § 23; 2005, ch. 189, § 48.
NMSA 1978, § 32A-4-23.1 Disposition of an undocumented immigrant child in a proceeding under the Abuse and Neglect Act
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.
1978 Comp., § 32A-4-23.1, as enacted by Laws 2009, ch. 239, § 43.
NMSA 1978, § 32A-4-24 Limitations on dispositional judgments; modification, termination or extension of court orders
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.
1978 Comp., § 32A-4-24, enacted by Laws 1993, ch. 77, § 118; 2009, ch. 239, § 44.
NMSA 1978, § 32A-4-25 Periodic judicial review of dispositional judgments
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.
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.
NMSA 1978, § 32A-4-25.1 Permanency hearings; permanency review hearings
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.
Laws 1997, ch. 34, § 8; 2005, ch. 189, § 50; 2009, ch. 239, § 46; 2016, ch. 54, § 7; 2016, ch. 60, § 3.
NMSA 1978, § 32A-4-25.2 Transition services
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.
1978 Comp., § 32A-4-25.2, as enacted by Laws 2009, ch. 239, § 47.
NMSA 1978, § 32A-4-25.3 Discharge hearing
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.
1978 Comp., § 32A-4-25.3, as enacted by Laws 2009, ch. 239, § 48.
NMSA 1978, § 32A-4-26 Parental responsibility
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.
1978 Comp., § 32A-4-26, enacted by Laws 1993, ch. 77, § 120.
NMSA 1978, § 32A-4-27 Intervention; persons permitted to intervene
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.
1978 Comp., § 32A-4-27, enacted by Laws 1993, ch. 77, § 121; 1999, ch. 77, § 9; 2022, ch. 41, § 53.
NMSA 1978, § 32A-4-28 Termination of parental rights; adoption decree
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.
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.
NMSA 1978, § 32A-4-29 Termination procedure
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.
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.
NMSA 1978, § 32A-4-30 Attorney fees
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.
1978 Comp., § 32A-4-30, enacted by Laws 1993, ch. 77, § 124; 2005, ch. 189, § 53.
NMSA 1978, § 32A-4-31 Permanent guardianship of a child
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.
1978 Comp., § 32A-4-31, enacted by Laws 1993, ch. 77, § 125; 2005, ch. 189, § 54.
NMSA 1978, § 32A-4-32 Permanent guardianship; procedure
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.
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.
NMSA 1978, § 32A-4-33 Confidentiality; information; penalty
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.
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.
NMSA 1978, § 32A-4-33.1 Fatalities; near fatalities; records release
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.
1978 Comp., § 32A-4-33.1, as enacted by Laws 2009, ch. 239, § 52; 2025, ch. 156, § 12.
NMSA 1978, § 32A-4-33.2 Creation and maintenance of dashboard on department website; annual report
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.
Laws 2025, ch. 156, § 13.
NMSA 1978, § 32A-4-34 Duties of employees
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.
Laws 2005, ch. 189, § 57.
NMSA 1978, § 32A-4-35 Appointment or change of educational decision maker
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.
Laws 2017, ch. 64, § 3.
Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18532/index.doFetched: 10/20/2026