HB 5/a
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AN ACT
RELATING TO FAMILIES; ENACTING THE OFFICE OF CHILD ADVOCATE
ACT; PROVIDING FOR THE STATE CHILD ADVOCATE; CREATING THE
OFFICE OF CHILD ADVOCATE AND ESTABLISHING THE POWERS AND
DUTIES OF THAT OFFICE; PROVIDING FOR THE ESTABLISHMENT OF THE
STATE CHILD ADVOCATE SELECTION COMMITTEE; AMENDING AND
ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Children's Code is
enacted to read:
"SHORT TITLE.--Sections 1 through 15 of this act may be
cited as the "Office of Child Advocate Act"."
SECTION 2. A new section of the Children's Code is
enacted to read:
"DEFINITIONS.--As used in the Office of Child Advocate
Act:
A. "child in custody" means a minor who is placed
by the department in custodial or residential care, including
foster care, kinship care or care within a group home, a
residential treatment center, a juvenile justice facility, a
semi-independent living program or an emergency shelter,
pursuant to a court order or otherwise sanctioned by the
court and does not live with either of the child's birth
parents; HB 5/a
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B. "committee" means the state child advocate
selection committee;
C. "department" means the children, youth and
families department;
D. "near fatality" means an injury or condition
caused by abuse or neglect that results in a child:
(1) being placed in serious or critical
condition, as certified by a licensed physician; and
(2) receiving critical care for at least
twenty-four hours following the child's admission to a
critical care unit; and
E. "office" means the office of child advocate."
SECTION 3. A new section of the Children's Code is
enacted to read:
"OFFICE OF CHILD ADVOCATE--CREATED.--The "office of
child advocate" is created and is administratively attached
to the office of the attorney general pursuant to Section
9-1-7 NMSA 1978. The office shall maintain autonomy over the
office's budget and any decisions the office may take."
SECTION 4. A new section of the Children's Code is
enacted to read:
"STATE CHILD ADVOCATE--APPOINTMENT--DUTIES.--The head of
the office is the "state child advocate", who shall be
appointed by the governor with the advice and consent of the
senate for a term of six years. The advocate shall be HB 5/a
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appointed as soon as practicable. The initial term shall end
December 31, 2031. At the time of appointment, the state
child advocate shall have, at a minimum, five years of
documented professional experience working in child
protective or juvenile justice services and be licensed in
good standing as an attorney, a psychologist or social
worker. The state child advocate may be reappointed to two
successive terms. An appointed state child advocate shall
serve and have all of the duties, responsibilities and
authority of that office during the period of time in which
the state child advocate is appointed. The attorney general
may remove the state child advocate only for malfeasance,
misfeasance or abuse of office. The state child advocate
shall oversee the office and assign and distribute the work
of the state child advocate."
SECTION 5. A new section of the Children's Code is
enacted to read:
"STATE CHILD ADVOCATE SELECTION COMMITTEE--DUTIES.--
A. The "state child advocate selection committee"
is created and consists of seven members, including:
(1) one member who shall be selected by the
president pro tempore of the senate;
(2) one member who shall be selected by the
minority floor leader of the senate;
(3) one member who shall be selected by the HB 5/a
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speaker of the house of representatives;
(4) one member who shall be selected by the
minority floor leader of the house of representatives;
(5) one member who shall be selected by the
governor; and
(6) two members who shall be selected by the
chief justice of the supreme court.
B. The committee shall elect a chair from the
committee's membership.
C. The committee shall meet by September 1, 2025
exclusively for the purpose of nominating persons to fill the
position of state child advocate. The committee shall
actively solicit, accept and evaluate applications for the
position of state child advocate and may require applicants
to submit any information that the committee deems relevant
to the consideration of applications. Within ninety days
before the date on which the term of a state child advocate
ends or no later than thirty days after the occurrence of a
vacancy in the state child advocate position, the committee
shall convene and, within thirty days after convening, submit
to the governor the names of persons who are recommended for
appointment to the position by a majority of the committee
members.
D. The governor shall fill a vacancy or appoint a
successor to fill an impending vacancy in the office of state HB 5/a
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child advocate within thirty days after receiving final
nominations from the committee by appointing one of the
persons nominated by the committee.
E. The committee is administratively attached to
the office of the attorney general pursuant to the provisions
of Section 9-1-7 NMSA 1978.
F. After the initial meeting of the committee, the
governor or a majority of the committee members may call a
subsequent meeting of the committee to nominate persons to
fill a current or impending vacancy in the position of state
child advocate.
G. The members of the committee shall receive per
diem and mileage as provided in the Per Diem and Mileage Act
and shall receive no other compensation, perquisite or
allowance."
SECTION 6. A new section of the Children's Code is
enacted to read:
"OFFICE OF CHILD ADVOCATE--POWERS--DUTIES.--The office:
A. shall:
(1) review the department's provision of
services to children and families, receive complaints
concerning the actions of the department or of any entity or
person that provides services to children and families
through funds provided by the department and make appropriate
referrals when the state child advocate determines that a HB 5/a
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child or family may be in need of assistance;
(2) determine the extent to which the
department's policies and procedures protect and enhance
children's personal dignity, right to privacy, appropriate
health care and education in accordance with state and
federal law;
(3) adopt and promulgate rules in accordance
with the State Rules Act as are deemed necessary to carry out
the provisions of the Office of Child Advocate Act;
(4) operate a toll-free hotline and
electronic communication portal to receive complaints
pursuant to this section;
(5) investigate and attempt to resolve
complaints made by or on behalf of a child in custody,
receiving services under the supervision of the department,
subject to a referral to the department or whose parent,
guardian or custodian is under investigation by the
department;
(6) upon rendering a decision to investigate
a complaint, notify the complainant of the intention to
investigate and, if the office declines to investigate a
complaint or continue an investigation, notify the
complainant that no further action will be taken by the
office;
(7) update the complainant on the progress HB 5/a
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of the investigation within thirty days and notify the
complainant and the subjects of the complaint of the final
outcome within ninety days of the completion of the
investigation;
(8) analyze and monitor the development and
implementation of federal, state and local laws, regulations
and policies relating to child and family welfare and
recommend changes when appropriate;
(9) provide information about the children's
and families' rights and responsibilities related to
departmental services;
(10) provide comprehensive information
concerning child and family welfare to the governor, state
agencies and legislators;
(11) compile an annual report pursuant to
Section 7 of the Office of Child Advocate Act;
(12) access information or records that the
department would be entitled to access or receive and that
are necessary for carrying out the provisions of the Office
of Child Advocate Act;
(13) access and review information, records
or documents that the department would be entitled to access
or receive, including records of third parties, that the
office deems necessary to conduct a thorough and independent
review of a complaint; and HB 5/a
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(14) refer any finding of a violation of
federal or state constitutional rights, reckless disregard
for the health and safety of a child or a pattern of conduct
or repeated incidents of violating laws and rules relating to
child and family welfare to the attorney general; and
B. may:
(1) hire and contract for such professional,
technical and support staff as needed to carry out the
functions of the office; provided that employees of the
office, except the state child advocate, are subject to the
provisions of the Personnel Act;
(2) meet or communicate with any child in
custody, receiving services under the supervision of the
department or under investigation by the department; and
(3) refer a complaint to another agency for
investigation."
SECTION 7. A new section of the Children's Code is
enacted to read:
"ANNUAL REPORT--REPORT CONTENTS--CREATION AND
MAINTENANCE OF WEBSITE CONTAINING REPORT INFORMATION.--
A. Each year, the office shall submit to the
legislative finance committee, legislative health and human
services committee, nations, tribes and pueblos of New
Mexico, the department, the supreme court and the governor on
or before September 1 a report addressing services provided HB 5/a
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by the department, including:
(1) the quality of services provided to
children and families;
(2) the conditions of placements for New
Mexico's children, the number of out-of-state placements and
an assessment of each active congregate care and juvenile
justice facility in which children in custody are placed;
(3) the number of children removed from the
household of a parent, foster parent or guardian;
(4) the number of children returned to a
household from which they were removed;
(5) the number of children removed from a
household subsequent to being returned to a household from
which they were removed;
(6) the number of children placed in a
juvenile justice facility;
(7) the number of children in custody who
have run away from a department placement, the number of
children in custody who have been found after running away
and the number of children in custody who are currently
missing;
(8) the number of cases in which families
subject to court-ordered treatment plans or voluntary
placement agreements have absconded with children in custody;
(9) a review of systemic issues related to HB 5/a
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services for assistance to children and families within the
child protection and juvenile justice systems;
(10) findings and recommendations related to
the implementation of the federal Indian Child Welfare Act of
1978 and the Indian Family Protection Act;
(11) recommendations related to improving
department services for children and families;
(12) data disaggregated by race, ethnicity,
gender, geographic location, sexual identity, disability
status, tribal affiliation and any other categories that the
office deems necessary; and
(13) an outline of the training and
certification process for the state child advocate and office
staff.
B. To the extent possible, the office shall use
methodology that is consistent with the system used by
federal government agencies for calculating and reporting the
data required for the office's annual report.
C. The office shall create and maintain a web page
on which the data contained in Subsection A of this section
shall be provided in an accessible manner and updated
quarterly.
D. Each year, the annual report shall be posted to
the web page created pursuant to Subsection C of this
section." HB 5/a
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SECTION 8. A new section of the Children's Code is
enacted to read:
"TRAINING AND CERTIFICATION.--
A. The state child advocate shall ensure that
office staff are trained in:
(1) federal, state, local and tribal laws,
regulations and policies with respect to child protection and
juvenile justice services in the state;
(2) investigative techniques, including
trauma-informed care and questioning;
(3) the federal Indian Child Welfare Act of
1978, the Indian Family Protection Act, tribal culture,
tribal relations and sovereign nation status;
(4) department policies and procedures,
including policies and procedures related to abuse and
neglect, out-of-home placement and safety and risk
assessments; and
(5) such other matters as the office deems
appropriate.
B. The state child advocate shall develop
procedures for the training and certification of appropriate
staff.
C. An officer, employee or other representative of
the office shall not investigate any complaint filed with the
office unless that person is certified by the office." HB 5/a
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SECTION 9. A new section of the Children's Code is
enacted to read:
"CONFLICT OF INTEREST.--Persons who are employees of the
office or who have contracts with the office shall not have a
conflict of interest with the department or with an entity
that provides services to children and families through funds
provided by the department relating to the performance of
their responsibilities pursuant to the Children's Code. For
the purposes of this section, a conflict of interest exists
whenever the state child advocate, an employee of the office
or a person having a contract with the office:
A. has direct involvement in the licensing,
certification or accreditation of a provider or facility
delivering services to children and families;
B. has an ownership interest in a provider or
facility delivering services to children and families;
C. is employed by or participates in the
management of a provider or facility delivering services to
children and families; or
D. receives or has the right to receive, directly
or indirectly, remuneration pursuant to a compensation
arrangement with a provider or facility delivering services
to children and families."
SECTION 10. A new section of the Children's Code is
enacted to read: HB 5/a
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"INCIDENTS, FATALITIES AND NEAR FATALITIES.--
A. The department shall provide the office with a
copy of all reports related to actual physical injury to a
child in custody.
B. The department shall provide the office with a
written notification within seventy-two hours of:
(1) a fatality or near fatality of a child
in custody or referred or receiving services under the
supervision of the department; and
(2) the restraint or seclusion of a child in
custody."
SECTION 11. A new section of the Children's Code is
enacted to read:
"LAW ENFORCEMENT REPORTS.--Upon request by the office,
law enforcement agencies shall share with the office all law
enforcement reports involving a child in custody, receiving
services under the supervision of the department or whose
parent, guardian or custodian is under investigation by the
department."
SECTION 12. A new section of the Children's Code is
enacted to read:
"CONFIDENTIALITY OF INFORMATION.--
A. Except as provided in Subsection B of this
section, the office shall maintain the confidentiality of all
case records, third-party records and court records, as well HB 5/a
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as any information gathered in the course of investigations
and system monitoring duties. These records are exempt from
public inspection and copying pursuant to the Inspection of
Public Records Act and shall be kept confidential unless
disclosure is:
(1) ordered by the court;
(2) necessary to prevent imminent harm and
the imminent harm is communicated directly to the state child
advocate or staff of the office;
(3) necessary to the department for the
department to determine the appropriateness of initiating an
investigation regarding potential abuse or neglect or other
emergency circumstances; or
(4) necessary to the department for the
department to determine the appropriateness of initiating an
investigation to determine facility compliance with
applicable rules of licensure or certification or both.
B. The office may publicly report any patterns of
conduct or repeated incidents identified by the office in
carrying out the provisions of the Office of Child Advocate
Act; provided that the office shall not publicly disclose
either of the following:
(1) individually identifiable information
about a child; and
(2) investigation findings when there is a HB 5/a
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pending law enforcement investigation or prosecution."
SECTION 13. A new section of the Children's Code is
enacted to read:
"OTHER REMEDIES.--An individual who pursues remedies
pursuant to the Office of Child Advocate Act is not precluded
from pursuing other legal or equitable remedies."
SECTION 14. A new section of the Children's Code is
enacted to read:
"NOTIFICATION OF OFFICE OF CHILD ADVOCATE.--The
department shall notify all children in custody, receiving
services under the supervision of the department or under
investigation by the department and their parents, guardians,
foster parents and fictive kin of the existence of the
office, its purpose and function and its toll-free hotline
and electronic communication portal with instructions for
access."
SECTION 15. A new section of the Children's Code is
enacted to read:
"ACTION BY THE ATTORNEY GENERAL.--
A. The attorney general may bring a civil cause of
action for declaratory or injunctive relief against the
department based on a finding by the office of a violation of
federal or state constitutional rights, reckless disregard of
the health and safety of a child or a pattern of conduct or
repeated incidents of violating laws and rules relating to HB 5/a
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child and family welfare.
B. The attorney general shall develop and
implement procedures to prevent conflicts of interest in the
investigation or prosecution of the department or an employee
of the department, including procedures regarding segregation
or sequestration of information related to such
investigations or prosecutions.
C. The authority provided in this section is in
addition to the other powers and duties of the attorney
general and does not prevent prosecution for a violation of
the Criminal Code."
SECTION 16. Section 32A-2-32 NMSA 1978 (being Laws
1993, Chapter 77, Section 61, as amended) is amended to read:
"32A-2-32. CONFIDENTIALITY--RECORDS.--
A. All records pertaining to the child, including
all related social records, behavioral health screenings,
diagnostic evaluations, psychiatric reports, medical reports,
social studies reports, records from local detention
facilities, client-identifying records from facilities for
the care and rehabilitation of delinquent children, pre-
parole or supervised release reports and supervision
histories obtained by the juvenile probation office, parole
officers and the juvenile public safety advisory board or in
possession of the department, are confidential and shall not
be disclosed directly or indirectly to the public. HB 5/a
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B. The disclosure of all mental health and
developmental disability records shall be made pursuant to
the Children's Mental Health and Developmental Disabilities
Act.
C. The records described in Subsection A of this
section, other than mental health and developmental
disability records, shall be disclosed only to any of the
following, provided that the agency, person or institution
receiving information shall not re-release the information
without proper consent or as otherwise provided by law:
(1) court personnel;
(2) the child's court appointed special
advocates;
(3) the child's attorney or guardian ad
litem representing the child in any matter;
(4) department personnel;
(5) corrections department personnel;
(6) law enforcement officials when the
request is related to the investigation of a crime;
(7) district attorneys or children's court
attorneys;
(8) a state government social services
agency in any state;
(9) those persons or entities of a child's
Indian tribe specifically authorized to inspect such records HB 5/a
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pursuant to the federal Indian Child Welfare Act of 1978, the
Indian Family Protection Act or any regulations promulgated
under those acts;
(10) tribal juvenile justice system and
social service representatives;
(11) a foster parent, if the records are
those of a child currently placed with that foster parent or
of a child being considered for placement with that foster
parent, when the disclosure of the information is necessary
for the child's treatment or care and shall include only that
information necessary to provide for treatment and care of
the child;
(12) school personnel involved with the
child if the records concern the child's educational needs,
but shall only include that information necessary to provide
for the child's educational planning and needs;
(13) a health care or mental health
professional involved in the evaluation or treatment of the
child, the child's parents, guardians or custodian or other
family members;
(14) representatives of the protection and
advocacy system;
(15) the child's parent, guardian or legal
custodian when the disclosure of the information is necessary
for the child's treatment or care and shall include only that HB 5/a
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information necessary to provide for the treatment or care of
the child;
(16) any other person or entity, by order of
the court, having a legitimate interest in the case or the
work of the court who agrees not to otherwise release the
records;
(17) the child, if fourteen years of age or
older; and
(18) the attorney general and the office of
child advocate and its employees and contractors, pursuant to
the requirements of the Office of Child Advocate Act, if the
records are needed for the purpose of implementing that act.
D. If disclosure of otherwise confidential records
is made to the child or any other person or entity pursuant
to a valid release of information signed by the child, all
victim or witness identifying information shall be redacted
or otherwise deleted.
E. Whoever intentionally and unlawfully releases
any information or records closed to the public pursuant to
this section or releases or makes other unlawful use of
records in violation of this section is guilty of a petty
misdemeanor.
F. The department shall promulgate rules for
implementing disclosure of records pursuant to this section
and in compliance with state and federal law and the HB 5/a
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Children's Court Rules."
SECTION 17. Section 32A-4-33 NMSA 1978 (being Laws
1993, Chapter 77, Section 127, as amended) is amended to
read:
"32A-4-33. CONFIDENTIALITY--RECORDS--PENALTY.--
A. All records or 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.
B. The records described in Subsection A of this
section shall be disclosed only to the parties and:
(1) court personnel and persons or entities
authorized by contract with the court to review, inspect or
otherwise have access to records or information in the
court's possession;
(2) court-appointed special advocates
appointed to the 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 HB 5/a
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action under the Children's Code;
(5) department personnel and persons or
entities authorized by contract with the department to
review, inspect or otherwise have access to records or
information in the department's possession;
(6) any local substitute care review board
or any agency contracted to implement local substitute care
review boards;
(7) law enforcement officials, except when
use immunity is granted pursuant to Section 32A-4-11 NMSA
1978;
(8) district attorneys, except when use
immunity is granted pursuant to Section 32A-4-11 NMSA 1978;
(9) any state 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 records are
those of a child currently placed with that foster parent or
of a child being considered for placement with that foster
parent and the records concern the social, medical,
psychological or educational needs of the child;
(11) school personnel involved with the
child if the records concern the child's social or HB 5/a
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educational needs;
(12) a grandparent, parent of a sibling,
relative or fictive kin, if the records or information
pertain to a child being considered for placement with that
grandparent, parent of a sibling, relative or fictive kin and
the records or information concern the 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 investigatory 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 records and information pertaining to neglect or
abuse proceedings;
(17) any person or entity attending a
meeting arranged by the department to discuss the safety, HB 5/a
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well-being and permanency of a child, when the parent or
child, or parent or legal custodian on behalf of a child
younger than fourteen years of age, has consented to the
disclosure;
(18) any other person or entity, by order of
the court, having a legitimate interest in the case or the
work of the court; and
(19) 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, if the
records are needed for the purpose of implementing that act.
C. A parent, guardian or legal 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 identifying information related
to the reporting party or any other party providing
information shall be deleted. The parent, guardian or legal
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 those
records and information the department finds would be likely
to endanger the life or safety of any person providing
information to the department. HB 5/a
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D. Whoever intentionally and unlawfully releases
any information or records closed to the public pursuant to
the Abuse and Neglect Act or releases or makes other unlawful
use of records in violation of that act is guilty of a petty
misdemeanor and shall be sentenced pursuant to the provisions
of Section 31-19-1 NMSA 1978.
E. The department shall promulgate rules for
implementing disclosure of records pursuant to this section
and in compliance with state and federal law and the
Children's Court Rules."
SECTION 18. Section 14-2-1 NMSA 1978 (being Laws 1947,
Chapter 130, Section 1, as amended) is amended to read:
"14-2-1. RIGHT TO INSPECT PUBLIC RECORDS–EXCEPTIONS.--
Every person has a right to inspect public records of this
state except:
A. records pertaining to physical or mental
examinations and medical treatment of persons confined to an
institution;
B. letters of reference concerning employment,
licensing or permits;
C. letters or memoranda that are matters of
opinion in personnel files or students' cumulative files;
D. portions of law enforcement records as provided
in Section 14-2-1.2 NMSA 1978;
E. as provided by the Confidential Materials Act; HB 5/a
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F. trade secrets;
G. attorney-client privileged information;
H. long-range or strategic business plans of
public hospitals discussed in a properly closed meeting;
I. tactical response plans or procedures prepared
for or by the state or a political subdivision of the state,
the publication of which could reveal specific
vulnerabilities, risk assessments or tactical emergency
security procedures that could be used to facilitate the
planning or execution of a terrorist attack;
J. information concerning information technology
systems, the publication of which would reveal specific
vulnerabilities that compromise or allow unlawful access to
such systems; provided that this subsection shall not be used
to restrict requests for:
(1) records stored or transmitted using
information technology systems;
(2) internal and external audits of
information technology systems, except for those portions
that would reveal ongoing vulnerabilities that compromise or
allow unlawful access to such systems; or
(3) information to authenticate or validate
records received pursuant to a request fulfilled pursuant to
the Inspection of Public Records Act;
K. submissions in response to a competitive grant, HB 5/a
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land lease or scholarship and related scoring materials and
evaluation reports until finalists are publicly named or the
award is announced;
L. case records, third party records, court
records and any information gathered in the course of
investigations and system monitoring duties by the office of
child advocate, pursuant to the provisions of the Office of
Child Advocate Act; and
M. as otherwise provided by law."
SECTION 19. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2025.