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HOUSE BILL 500
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Alan T. Martinez
AN ACT
RELATING TO CITIZEN SUBSTITUTE CARE REVIEW; PROVIDING FOR
SUBMISSION, REVIEW AND RESOLUTION OF GRIEVANCES AGAINST THE
CHILDREN, YOUTH AND FAMILIES DEPARTMENT PERTAINING TO
SUBSTITUTE CARE; DEFINING TERMS IN THE CITIZEN SUBSTITUTE CARE
REVIEW ACT; PROVIDING FOR STAFFING OF THE SUBSTITUTE CARE
ADVISORY COUNCIL; PROVIDING FOR RULES PERTAINING TO VOLUNTEER
MEMBERS; PROVIDING ACCESS TO AND REQUIREMENTS FOR
CONFIDENTIALITY OF CERTAIN RECORDS AND INFORMATION; CHANGING
REPORTING REQUIREMENTS; AMENDING, REPEALING AND ENACTING
SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. 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.--
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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
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;
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(6) [any local substitute care review board or
any agency contracted to implement local substitute care review
boards] a member of the substitute care advisory council, a
member of the substitute care advisory council's staff or a
member of a board pursuant to the requirements of the Citizen
Substitute Care Review Act, if the records are requested for
the purpose of carrying out the provisions of that act ;
(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 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
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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, 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; and
(18) any other person or entity, by order of
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the court, having a legitimate interest in the case or the work
of the court.
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.
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
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Court Rules."
SECTION 2. Section 32A-8-2 NMSA 1978 (being Laws 1993,
Chapter 77, Section 204, as amended) is amended to read:
"32A-8-2. PURPOSE OF ACT.--The purpose of the Citizen
Substitute Care Review Act is to provide a permanent system for
independent and objective monitoring [of children placed in the
custody] of the department by examining the policies,
procedures and practices of the department [and, where
appropriate, specific cases ] to evaluate [the extent to which
the department is effectively ] its effectiveness in discharging
its child protection responsibilities and to meet federal
requirements for citizen review panels under the federal Child
Abuse Prevention and Treatment Act ."
SECTION 3. A new section of the Citizen Substitute Care
Review Act is enacted to read:
"[NEW MATERIAL] DEFINITIONS.--As used in the Citizen
Substitute Care Review Act:
A. "board" means a substitute care review board of
volunteer members facilitated by council staff convened for the
purpose of reviews of designated cases or other related
activities deemed appropriate by the council;
B. "case" means an abuse or neglect case referred
to the department;
C. "council" means the substitute care advisory
council;
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D. "department" means the children, youth and
families department or its agent or contractor;
E. "grievance" means a complaint received by
council staff:
(1) of any action or inaction that may or has
adversely affected the health, safety, welfare or rights of an
identified child or identified adult; or
(2) of the failure of the department to comply
with the law or department policies;
F. "identified adult" means an adult participating
in the fostering connections program or that program's
successor;
G. "identified child" means a child who is:
(1) the subject of a referral of abuse and
neglect made to the department;
(2) receiving services from the department; or
(3) in the custody of the department due to
abuse and neglect proceedings;
H. "public member" means an individual who has been
appointed by the governor;
I. "substitute care" means custodial or residential
care for an identified child that is ordered or otherwise
sanctioned by the court and in which the child does not live
with either of the child's birth parents. "Substitute care"
includes foster care, kinship care or care within a group home,
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residential treatment center, juvenile justice facility, semi-
independent living program or emergency shelter; and
J. "volunteer member" means an individual who has
met eligibility requirements to perform volunteer services for
the council."
SECTION 4. Section 32A-8-4 NMSA 1978 (being Laws 1993,
Chapter 77, Section 206, as amended) is amended to read:
"32A-8-4. SUBSTITUTE CARE ADVISORY COUNCIL--MEMBERS--
COMPENSATION--RESPONSIBILITIES--ADVISORY COMMITTEE.--
A. The "substitute care advisory council" is
created and, in accordance with the provisions of Section 9-1-7
NMSA 1978, is administratively attached to the regulation and
licensing department. [The general purpose of the council is
to oversee substitute care review boards in their monitoring of
children placed in the custody of the children, youth and
families department to identify systemic policy issues
regarding substitute care. ] The council shall exercise its
functions independently and not under the control of the
department or the regulation and licensing department. The
council shall be composed of [nine persons ] ten voting members,
including:
(1) the secretary of public education or the
secretary's designee;
(2) the secretary of [human services ] health
care authority or the secretary's designee;
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(3) the secretary of finance and
administration or the secretary's designee;
(4) the secretary of health or the secretary's
designee;
[(5) two public members, appointed by the
governor, who:
(a) are at least eighteen and no more
than thirty years of age at the time of appointment; and
(b) were previously placed in substitute
care;
(6) two public members, appointed by the
governor, who have expertise in the area of child welfare; and ]
(5) the secretary of early childhood education
and care or the secretary's designee;
[(7)] (6) one children's court judge,
appointed by the governor; and
(7) four public members, two of whom have
expertise in the area of child welfare and two of whom have had
experience in abuse and neglect proceedings, including former
foster youth, biological parents, foster parents and adoptive
parents.
B. [The council may hire staff and contract for
services to carry out the purposes of the Citizen Substitute
Care Review Act.] The secretary of children, youth and families
or the secretary's designee shall serve as a nonvoting member.
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C. Except as provided pursuant to Paragraph [(7) ]
(6) of Subsection A and Subsection B of this section, a person
or a relative of a person employed by the department or a
district court shall not serve on the council.
[C.] D. Terms of office of public members of the
council shall be three years. Public members shall be eligible
for reappointment. In the event that a vacancy occurs among
the members of the council, the governor shall appoint another
person to serve the unexpired portion of the term.
E. A member of the council shall receive per diem
and mileage as provided for nonsalaried public officers
pursuant to the Per Diem and Mileage Act; provided that, if a
different provision of that act applies to a member, that
member shall be paid pursuant to that provision. A member of
the council shall receive no other compensation, perquisite or
allowance.
[D.] F. The council shall select a chairperson, a
vice chairperson and other officers as it deems necessary.
[E.] G. The council shall meet no less than [twice
annually] quarterly and more frequently upon the call of the
chairperson.
H. The council may establish work groups and enter
into contracts, memoranda of understanding and joint powers
agreements to carry out the provisions of the Citizen
Substitute Care Review Act.
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[F.] I. The council shall adopt reasonable rules
relating to the functions and procedures of [the substitute
care review boards and ] the council [in accordance with the
duties of the boards as provided in the Citizen Substitute Care
Review Act]. These rules shall establish :
[(1) establish training requirements for
substitute care review board members;
(2) establish criteria for council designation
of cases for substitute care review board review;
(3) establish procedures for substitute care
review board review of designated cases;
(4) establish criteria for membership and
tenure on and operating procedures for substitute care review
boards;
(5) specify the information needed for
designated cases to be monitored by substitute care review
boards; and
(6) specify case information to be tracked and
reported to the council.
G. When adopting rules establishing criteria for
designation of cases for substitute care review board review,
the council shall weigh the importance of the following
factors, including:
(1) sibling placements;
(2) the frequency and severity of neglect or
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abuse;
(3) the behavioral health status of household
members;
(4) the placement of children in households
where there are no relatives of the children;
(5) data related to demographics; and
(6) relevant trend data ]
(1) procedures to ensure compliance with the
Open Meetings Act;
(2) initial and annual training requirements
for council staff;
(3) requirements for public participation,
including participation on work groups and boards;
(4) criteria for establishment of the
council's designation of cases;
(5) procedures for the council's review of
designated cases;
(6) procedures for receipt and processing of
grievances;
(7) procedures to provide for public outreach
and public comment to assess the impact of current child
protection procedures and practices on children and families in
the community; and
(8) other procedures to provide for compliance
with the Citizen Substitute Care Review Act and the federal
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Child Abuse Prevention and Treatment Act as it relates to
citizen review panels .
[H.] J. The council shall [review and coordinate
the activities of the substitute care review boards and make a
report with its recommendations to the department, the courts
and the appropriate legislative interim committees ] provide
periodic reports on the work of the council, including an
annual written report to the governor, the legislature, the
department and the administrative office of the courts and
other persons, organizations or agencies deemed appropriate.
The annual report shall be distributed electronically on or
before November 1 of each year [regarding statutes, rules,
policies and procedures relating to substitute care ]. This
report shall include [recommendations for any changes to
substitute care review boards.
I. Council members shall receive per diem and
mileage as provided for nonsalaried public officers in the Per
Diem and Mileage Act; provided that, if a different provision
of that act applies to a specific member, that member shall be
paid pursuant to that applicable provision. Members shall
receive no other compensation, perquisite or allowance.
J. The council shall appoint by October 1 of each
year a six-member advisory committee from a list of substitute
care review board members that the substitute care review
boards shall nominate. The advisory council shall meet with
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the council at least once per year to advise the council on
matters relating to substitute care review. Advisory committee
members shall serve terms of one year and may be reappointed ] a
summary of the activities of the council and recommendations to
improve child protective services at the state and local
levels. Other reports regarding trends or topics deemed
necessary by the council may be provided to the governor, the
legislature, the department and the administrative office of
the courts."
SECTION 5. A new section of the Citizen Substitute Care
Review Act is enacted to read:
"[NEW MATERIAL] COUNCIL ADMINISTRATION--STAFFING.--
A. The council shall hire a director who:
(1) shall oversee, manage and direct
processing of cases and grievances filed or reviewed pursuant
to the Citizen Substitute Care Review Act, provide
administrative support to the council and conduct any other
activities as deemed necessary by the council to support its
functions;
(2) shall act impartially in a nonpartisan
manner;
(3) shall promote public awareness of the
purpose and services of the council and the methods for
submitting grievances or requests for case review;
(4) shall employ staff for the council and fix
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compensation of the staff;
(5) shall prepare a budgetary request to be
submitted through the regulation and licensing department in
accordance with the provisions of Section 9-1-7 NMSA 1978; and
(6) may apply for and accept grants, gifts and
bequests from other states, federal and interstate agencies,
independent authorities, private firms, individuals and
foundations for the purpose of carrying out the
responsibilities of the council.
B. The director shall possess the following
qualifications:
(1) a master's degree in social work and
possession of a license issued pursuant to the Social Work
Practice Act; or
(2) an active license to practice law issued
pursuant to rules promulgated by the supreme court; and
(3) at least five years' experience in child
welfare administration, with an emphasis on child abuse and
neglect prevention or abatement.
C. The director shall hire staff to carry out the
purposes of the Citizen Substitute Care Review Act, including
review of cases and processing of grievances. Council staff
providing professional services shall possess:
(1) a bachelor's degree in social work,
psychology, guidance and counseling, education, sociology,
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criminal justice, criminology or family studies and at least
two years of experience in child welfare administration with an
emphasis on child abuse and neglect prevention or abatement; or
(2) at least four years of experience combined
from:
(a) study at an accredited college or
university in a field related to child welfare; or
(b) professional experience working in
the field in child welfare.
D. Council staff shall be required to complete
annual training directly relating to enhancing staff
proficiency, meeting job requirements, conducting case reviews
and processing grievances required pursuant to the Citizen
Substitute Care Review Act."
SECTION 6. A new section of the Citizen Substitute Care
Review Act is enacted to read:
"[NEW MATERIAL] ATTORNEY GENERAL REPRESENTATION AND
CONSULTATION.--The attorney general shall advise and consult
with the council, acting pursuant to the Citizen Substitute
Care Review Act, and render legal services upon request of the
council."
SECTION 7. A new section of the Citizen Substitute Care
Review Act is enacted to read:
"[NEW MATERIAL] GRIEVANCES.--
A. Council staff shall review each grievance
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submitted to council staff.
B. The council shall promulgate rules regarding
council staff's acceptance and processing of grievances to
establish:
(1) criteria for grievances that are accepted
by council staff;
(2) procedures for the referral of grievances
involving allegations of abuse and neglect pursuant to the
requirements provided in Sections 27-7-30 and 32A-4-3 NMSA
1978;
(3) procedures for the referral of grievances
that do not meet the criteria established by the council to an
appropriate entity; and
(4) investigation and assessment procedures
and time frames to respond to grievances.
C. Following the review of a grievance, council
staff shall submit a report to the department regarding the
strengths, concerns and recommendations relating to the
grievance.
D. The secretary of children, youth and families or
the secretary's designee shall acknowledge receipt of the
report within ten business days and indicate the department's
position as to each recommendation.
E. Council staff and the department shall meet
quarterly or as needed to develop mutually agreed-upon
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solutions.
F. An individual who requests a remedy pursuant to
this section shall not be precluded from pursuing other legal
or equitable remedies.
G. The department, its agent or contractor shall
not discharge, discriminate against in any manner or retaliate
against an employee, volunteer or contractor who, in good
faith, submits a grievance with the council."
SECTION 8. A new section of the Citizen Substitute Care
Review Act is enacted to read:
"[NEW MATERIAL] VOLUNTEER MEMBER PARTICIPATION--RULES.--
A. The council shall promulgate rules relating to
volunteer member participation, which shall include provisions
for:
(1) efforts to recruit and retain volunteer
members who are broadly representative of the communities in
which they serve and to include volunteer members with
expertise in the prevention and treatment of child abuse and
neglect and adult former victims of child abuse or neglect;
(2) a membership process that includes
background checks and orientation training;
(3) ongoing training requirements;
(4) procedures to address conflicts of actual,
perceived or possible conflicts of interest;
(5) a code of conduct; and
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(6) procedures to maintain confidentiality of
information required to be kept confidential as required by
law.
B. Each volunteer member who meets the requirements
established by council rules shall participate at least once
quarterly in case reviews and other activities deemed
appropriate by council staff.
C. Volunteer members may receive per diem and
mileage as provided for nonsalaried public officers in the Per
Diem and Mileage Act; provided that if a different provision of
that act applies to a specific member, that member shall be
paid pursuant to that applicable provision. Volunteer members
shall receive no other compensation, perquisite or allowance."
SECTION 9. A new section of the Citizen Substitute Care
Review Act is enacted to read:
"[NEW MATERIAL] SUBSTITUTE CARE REVIEW BOARD
ESTABLISHMENT--CASE REVIEW.--
A. The council shall establish boards composed
entirely of volunteer members to review cases designated in
accordance with council rules.
B. When a case has been designated for review
pursuant to council rules, the staff of the council shall
convene a board to review the case.
C. If a case reviewed by a board is a children's
court case, the staff of the council shall give the parties to
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the case notice of the review and afford the parties to the
case an opportunity to provide input relevant to the review.
If the case involves an Indian child, notice shall additionally
be provided to persons afforded notice pursuant to the federal
Indian Child Welfare Act of 1978.
D. After a board's review of a children's court
case, council staff shall submit a report of the board's
findings and recommendations to the children's court, the
department and the parties to the case. If the case involves
an Indian child, the report shall additionally be provided to
persons afforded notice pursuant to the federal Indian Child
Welfare Act of 1978.
E. The department shall acknowledge receipt of the
report within ten business days and indicate the department's
position with each recommendation.
F. Council staff and the department shall meet
quarterly, or as needed to develop mutually agreed-upon
solutions."
SECTION 10. A new section of the Citizen Substitute Care
Review Act is enacted to read:
"[NEW MATERIAL] ACCESS TO RECORDS.--
A. Subject to state or federal law to the contrary,
council staff shall have access to, including the right to
inspect and copy, any records necessary to carry out council
responsibilities, including access to the following:
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(1) social records, diagnostic evaluations,
psychiatric or psychologic reports, video footage, transcripts
and audio records of a child's statement of abuse or medical
reports incident to an abuse or neglect proceeding;
(2) a record of an agency, hospital,
organization, school, person or office, including the clerk of
the court, the department, a court-appointed special advocate
program, a public or private health care facility, a medical or
mental health care professional, a law enforcement agency or
other agency that provides services to children and families;
(3) a record of an administrative hearing
conducted by the department and any findings or conclusions
resulting from such hearing; and
(4) a record of a private meeting with a child
in protective custody or with an individual with knowledge of
the case or grievance.
B. The department shall establish procedures to
provide the requested records in a timely manner.
C. The department shall:
(1) establish procedures to provide the
requested records in a timely manner and to ensure staff
availability to provide input for case reviews and processing
of grievances; and
(2) ensure that its agents and contractors
provide requested records in a timely manner and ensure staff
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availability to provide input for case reviews and processing
of grievances.
D. The department, its agent or contractor shall
not discharge, discriminate against in any manner or retaliate
against an employee, volunteer or contractor who, in good
faith, communicates with the council about a grievance, case
review or provision of records pursuant to this section."
SECTION 11. A new section of the Citizen Substitute Care
Review Act is enacted to read:
"[NEW MATERIAL] CONFIDENTIALITY OF INFORMATION.--
A. Information obtained or generated by a member of
the council, a staff member of the council or a member of a
board for the purpose of performing duties in compliance with
the Citizen Substitute Care Review Act is not subject to the
provisions of the Inspection of Public Records Act.
B. The name, address or other personally
identifiable information of a person whose records are released
to council staff or who files a grievance shall be
confidential.
C. A member of the council, a staff member of the
council or a member of a board with knowledge of a case or
grievance that was obtained pursuant to the Citizen Substitute
Care Review Act shall maintain that information as confidential
unless:
(1) the person filing the grievance or the
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identified child or identified adult who is the subject of the
case consents in writing to disclosure of that information to
another person;
(2) the person filing the grievance or the
identified child or identified adult who is the subject of the
case provides oral consent for disclosure to another person
that is immediately documented in writing by council staff; or
(3) disclosure is ordered by a court."
SECTION 12. REPEAL.--Sections 32A-8-5 and 32A-8-6 NMSA
1978 (being Laws 1993, Chapter 77, Sections 207 and 208, as
amended) are repealed.
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