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HOUSE BILL 486
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Stefani Lord and Anita Gonzales
AN ACT
RELATING TO CHILDREN; REQUIRING CRIMINAL BACKGROUND CHECKS AND
SEX OFFENDER REGISTRY CHECKS BEFORE RETURNING A CHILD TO A
PERSON, INCLUDING A PARENT, LEGAL GUARDIAN OR CUSTODIAN, IF THE
CHILD IS IN THE CUSTODY OF THE CHILDREN, YOUTH AND FAMILIES
DEPARTMENT BECAUSE OF ABUSE OR NEGLECT; REQUIRING CRIMINAL
BACKGROUND CHECKS AND SEX OFFENDER REGISTRY CHECKS BEFORE
PLACING A CHILD IN FOSTER CARE WITH A RELATIVE OF THE CHILD IF
THE CHILD IS IN THE CUSTODY OF THE CHILDREN, YOUTH AND FAMILIES
DEPARTMENT BECAUSE OF ABUSE OR NEGLECT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 32A-4-6 NMSA 1978 (being Laws 1993,
Chapter 77, Section 100, as amended) is amended to read:
"32A-4-6. TAKING INTO CUSTODY--PENALTY.--
A. A child may be held or taken into custody:
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(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
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(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; provided that if a child
that is taken into custody pursuant to Subsection A of this
section because of evidence that the child has been subjected
to abuse or neglect, before the child is released to a person,
including the child's parent, guardian or custodian, that
person shall submit to a criminal background check provided for
by the department, and the department shall conduct a search in
the department of public safety's central registry of sex
offenders or the Dru Sjodin national sex offender public
website regarding that person; and provided further that the
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department shall determine the release of the child based on
the results of the background check and sex offender registry
check.
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.
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."
SECTION 2. Section 32A-4-7 NMSA 1978 (being Laws 1993,
Chapter 77, Section 101, as amended) is amended to read:
"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
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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.
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E. The department may release the child at any time
within the three-day period after the child was taken into
custody:
(1) if it is determined by the department that
release is appropriate; provided that if a child in the custody
of the department was taken into custody pursuant to Subsection
B of this section, before releasing the child to a person,
including the child's parent, legal guardian or custodian, that
person shall submit to a criminal background check provided by
the department, and the department shall conduct a search of
the department of public safety's central registry of sex
offenders or the Dru Sjodin national sex offender public
website regarding that person; and provided further that the
department shall determine the release of the child based on
the results of the background check and the sex offender
registry check; or
(2) 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
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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."
SECTION 3. Section 32A-4-8 NMSA 1978 (being Laws 1993,
Chapter 77, Section 102, as amended) is amended to read:
"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) before the child is released to a
person, including a relative of the child, that person shall
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submit to a criminal background check provided by the
department, and the department shall conduct a search of the
department of public safety's central registry of sex offenders
or the Dru Sjodin national sex offender public website
regarding that person; and provided further that the department
shall determine the release of the child based on the results
of the background check and the sex offender registry check;
[(a)] (b) placement with a relative is
in the best interest of the child;
[(b)] (c) 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)] (d) 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
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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."
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