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SENATE BILL 307
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Katy M. Duhigg and Heather Berghmans and Crystal Brantley
and Mimi Stewart and Joseph Cervantes
AN ACT
RELATING TO FAMILIES; ENACTING THE OFFICE OF CHILD OMBUD ACT;
PROVIDING FOR THE STATE CHILD OMBUD; CREATING THE OFFICE OF
CHILD OMBUD AND ESTABLISHING THE POWERS AND DUTIES OF THAT
OFFICE; PROVIDING FOR THE ESTABLISHMENT OF THE STATE CHILD
OMBUD SELECTION COMMITTEE; AMENDING AND ENACTING SECTIONS OF
THE NMSA 1978; MAKING AN APPROPRIATION.
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:
"[NEW MATERIAL] SHORT TITLE.--Sections 1 through 13 of
this act may be cited as the "Office of Child Ombud Act"."
SECTION 2. A new section of the Children's Code is
enacted to read:
"[NEW MATERIAL] DEFINITIONS.--As used in the Office of
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Child Ombud Act:
A. "committee" means the state child ombud
selection committee;
B. "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;
C. "office" means the office of child ombud; and
D. "ombud" means the individual who heads the
office and has the powers and duties set forth in Section 6 of
the Office of Child Ombud Act."
SECTION 3. A new section of the Children's Code is
enacted to read:
"[NEW MATERIAL] OFFICE OF CHILD OMBUD--CREATED.--The
"office of child ombud" is created and is administratively
attached to the administrative office of the courts. 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:
"[NEW MATERIAL] STATE CHILD OMBUD--APPOINTMENT--
DUTIES.--The head of the office is the "state child ombud", who
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shall be appointed for a term of six years. The ombud may be
reappointed to successive terms. An appointed ombud shall
serve and have all of the duties, responsibilities and
authority of that office until appointment of a new ombud. The
governor or the supreme court may remove the ombud only for
malfeasance, misfeasance or abuse of office."
SECTION 5. A new section of the Children's Code is
enacted to read:
"[NEW MATERIAL] STATE CHILD OMBUD SELECTION COMMITTEE--
DUTIES.--
A. The "state child ombud selection committee" is
created and consists of nine members, including:
(1) one member who shall be selected by the
president pro tempore of the senate;
(2) one member who shall be selected by the
minority floor leader of the senate;
(3) one member who shall be selected by the
speaker of the house of representatives;
(4) one member who shall be selected by the
minority floor leader of the house of representatives;
(5) four members who shall be selected by the
governor:
(a) no more than two of whom are from
the same political party and have not changed political party
affiliation in the last two years;
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(b) one of whom shall have specialized
expertise in the federal Indian Child Welfare Act of 1978 and
the Indian Family Protection Act; and
(c) one of whom shall have extensive
knowledge of child protective services, juvenile justice
services or child welfare; and
(6) the chair of the committee, whom a
majority of the other eight members select and who is:
(a) not a candidate for the position of
ombud; and
(b) a person with extensive knowledge of
child welfare and the Children's Code.
B. The committee shall meet exclusively for the
purpose of nominating persons to fill a current or impending
vacancy in the position of ombud. The committee shall actively
solicit, accept and evaluate applications for the position of
ombud 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 an ombud ends or no later than sixty days after the
occurrence of a vacancy in the ombud position, the committee
shall convene and, within sixty 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.
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C. After receiving nominations for the position of
ombud, the governor may make one request of the committee for
submission of additional names. The committee shall promptly
submit those additional names if a majority of the committee
members finds that additional persons would be qualified and
recommends those persons for appointment as ombud. The
governor shall fill a vacancy or appoint a successor to fill an
impending vacancy in the position of ombud within sixty days
after receiving final nominations from the committee by
appointing one of the persons nominated by the committee.
D. The committee is administratively attached to
the administrative office of the courts.
E. After the initial meeting of the committee, the
governor or the chair of the committee may call subsequent
meetings of the committee to nominate persons to fill a current
or impending vacancy in the position of ombud.
F. 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:
"[NEW MATERIAL] OFFICE OF CHILD OMBUD--POWERS--DUTIES.--
The office:
A. shall:
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(1) review the department's provision of
services to children and families, receive complaints
concerning the actions of the department or of any entity that
provides services to children and families through funds
provided by the department and make appropriate referrals when
the ombud determines that a child or family may be in need of
assistance from the office;
(2) review current systems to 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 Ombud 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 children placed in the
custody of the department, receiving services under the
supervision of the department, referred to the department or
whose parent, guardian or custodian is under investigation by
the department;
(6) upon investigation of a complaint, notify
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the complainant and subjects of the complaint of the
investigation or, if the office declines to investigate a
complaint or continue an investigation, notify the complainant
and the subjects of the complaint that no further action will
be taken by the office;
(7) update the complainant on the progress of
the investigation every ninety 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) provide information about recipients'
rights and responsibilities related to departmental services;
(9) provide information concerning child and
family welfare to the governor, state agencies and legislators;
(10) compile an annual report pursuant to
Section 7 of the Office of Child Ombud Act;
(11) subpoena witnesses to provide testimony
in cases in which a fatality or near fatality of a child has
occurred while the child was in the custody of the department;
(12) access information or records that are
necessary for carrying out the provisions of the Office of
Child Ombud Act; and
(13) access and review information, records or
documents, including records of third parties, that the office
deems necessary to conduct a thorough and independent review of
a complaint so long as the department would be entitled to
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access or receive such information, records or documents; and
B. may:
(1) hire and contract for such professional,
technical and support staff as needed to carry out the
functions of the office;
(2) meet or communicate with any child placed
in the custody of the department, receiving services under the
supervision of the department, referred to the department or
whose parent, guardian or custodian is under investigation by
the department in a developmentally sensitive method; and
(3) decide whether to investigate a complaint
or refer a complaint to another agency for investigation."
SECTION 7. A new section of the Children's Code is
enacted to read:
"[NEW MATERIAL] ANNUAL REPORT--REPORT CONTENTS--CREATION
AND MAINTENANCE OF WEBSITE CONTAINING REPORT INFORMATION.--
A. Each year, the office shall submit to the
legislative finance committee, the department and the governor
on or before September 1 a report addressing services provided
by the department, including:
(1) the quality of services provided to
children and families;
(2) the conditions of placements for New
Mexico's children, including the number of out-of-state
placements and an assessment of each active congregate care and
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juvenile justice facility in which children in the custody of
the department are placed;
(3) the number of children removed from a
residence 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 the
custody of a juvenile justice facility;
(7) the number of children placed in the
custody of the department who have run away from a department
placement, the number of children placed in the custody of the
department who have been found after running away and the
number of children placed in the custody of the department 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 placed in the custody
of the department;
(9) a review of systemic issues related to
services for assistance to children and families within the
child protection and juvenile justice systems;
(10) findings and recommendations related to
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the implementation of the federal Indian Child Welfare Act of
1978 and the Indian Family Protection Act;
(11) recommendations related to improving
services for children and families;
(12) data disaggregated by race, ethnicity,
gender, geographic location, sexual identity, disability status
and any other categories that the office deems necessary; and
(13) the training and certification process
for the ombud and office staff.
B. 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.
C. Each year the annual report shall be posted to
the web page created pursuant to Subsection B of this section."
SECTION 8. A new section of the Children's Code is
enacted to read:
"[NEW MATERIAL] TRAINING AND CERTIFICATION.--
A. The ombud 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;
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(3) the federal Indian Child Welfare Act of
1978, the Indian Family Protection Act, tribal culture, tribal
relations and sovereign nation status; and
(4) department policies and procedures.
B. The ombud 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."
SECTION 9. A new section of the Children's Code is
enacted to read:
"[NEW MATERIAL] 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 ombud, an employee of the
office or a person having a contract with the office:
A. licenses, certifies or accredits a provider or
facility delivering services to children and families pursuant
to the Children's Code;
B. has a direct ownership interest in a provider or
facility delivering services to children and families pursuant
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to the Children's Code;
C. is employed by or participates in the management
of a provider or facility delivering services to children and
families pursuant to the Children's Code; or
D. receives, directly or indirectly, remuneration
pursuant to a compensation arrangement with a provider or
facility delivering services to children and families pursuant
to the Children's Code."
SECTION 10. A new section of the Children's Code is
enacted to read:
"[NEW MATERIAL] INCIDENTS, FATALITIES AND NEAR
FATALITIES.--
A. The department shall provide the office with a
copy of all reports related to actual physical injury to
children in the custody of the department within thirty days of
receiving the report, whether substantiated or unsubstantiated.
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
its custody or referred or receiving services under the
supervision of the department; and
(2) the restraint or seclusion of a child in
its custody."
SECTION 11. A new section of the Children's Code is
enacted to read:
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"[NEW MATERIAL] LAW ENFORCEMENT REPORTS.--Upon request by
the office, law enforcement agencies shall share with the
office all law enforcement reports involving children
identified by the agencies as having been placed in the custody
of the department, receiving services under the supervision of
the department, referred to 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:
"[NEW MATERIAL] CONFIDENTIALITY OF INFORMATION.--
A. The office shall maintain the confidentiality of
all case records, third-party records and court records, as
well as any information gathered in the course of
investigations and system monitoring duties. These records are
exempt from public inspection and copying pursuant to the
Inspection of Public Records Act and shall be kept confidential
unless:
(1) disclosure is ordered by the court;
(2) disclosure is necessary to prevent
imminent harm and the imminent harm is communicated directly to
the ombud or staff of the office;
(3) disclosure is necessary to the department
in order for the department to determine the appropriateness of
initiating an investigation regarding potential abuse or
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neglect or other emergency circumstances; or
(4) disclosure is necessary to the department
in order 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. Notwithstanding the provisions of Subsection A
of this section, 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 Ombud 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
pending law enforcement investigation or prosecution."
SECTION 13. A new section of the Children's Code is
enacted to read:
"[NEW MATERIAL] NOTIFICATION OF OFFICE OF CHILD OMBUD.--
The department shall notify all children placed in the custody
of the department, receiving services under the supervision of
the department, referred to the department or whose parent,
guardian or custodian is under investigation by the department
and their parents, guardians, foster parents and identified
fictive kin of the existence of the office, its purpose and
function and its toll-free hotline and electronic communication
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portal with instructions for access."
SECTION 14. 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.
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;
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(2) the child's court appointed special
advocates;
(3) the child's attorney or guardian ad litem
representing the child in any matter;
(4) department personnel;
(5) corrections department personnel;
(6) law enforcement officials when the request
is related to the investigation of a crime;
(7) district attorneys or children's court
attorneys;
(8) a state government social services agency
in any state;
(9) those persons or entities of a child's
Indian tribe specifically authorized to inspect such records
pursuant to the federal Indian Child Welfare Act of 1978, the
Indian Family Protection Act or any regulations promulgated
under [that act] 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
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child;
(12) school personnel involved with the child
if the records concern the child's educational needs, but shall
only include that information necessary to provide for the
child's educational planning and needs;
(13) a health care or mental health
professional involved in the evaluation or treatment of the
child, the child's parents, guardians or custodian or other
family members;
(14) representatives of the protection and
advocacy system;
(15) the child's parent, guardian or legal
custodian when the disclosure of the information is necessary
for the child's treatment or care and shall include only that
information necessary to provide for the treatment or care of
the child;
(16) any other person or entity, by order of
the court, having a legitimate interest in the case or the work
of the court who agrees not to otherwise release the records;
[and]
(17) the child, if fourteen years of age or
older; and
(18) the office of child ombud and its
employees and contractors, pursuant to the requirements of the
Delinquency Act, if the records are needed for the purpose of
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implementing the Office of Child Ombud Act .
D. If disclosure of otherwise confidential records
is made to the child or any other person or entity pursuant to
a valid release of information signed by the child, all victim
or witness identifying information shall be redacted or
otherwise deleted.
E. Whoever intentionally and unlawfully releases
any information or records closed to the public pursuant to
this section or releases or makes other unlawful use of records
in violation of this section is guilty of a petty misdemeanor.
F. The department shall promulgate rules for
implementing disclosure of records pursuant to this section and
in compliance with state and federal law and the Children's
Court Rules."
SECTION 15. 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
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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;
(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
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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
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
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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
the court, having a legitimate interest in the case or the work
of the court; and
(19) the office of child ombud and its
employees and contractors, pursuant to the requirements of the
Abuse and Neglect Act, if the records are needed for the
purpose of implementing the Office of Child Ombud 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
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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
Court Rules."
SECTION 16. APPROPRIATION.--One million dollars
($1,000,000) is appropriated from the general fund to the
administrative office of the courts for expenditure in fiscal
year 2026 for expenses to be incurred in establishing the
office of child ombud. Any unexpended or unencumbered balance
remaining at the end of fiscal year 2026 shall revert to the
general fund.
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SECTION 17. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2025.
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