SENATE BILL 1022
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Timothy Z. Jennings
AN ACT
RELATING TO CHILD ABUSE; ESTABLISHING DRUG ADDICTION AND FETAL ALCOHOL SYNDROME AS CHILD ABUSE; PROVIDING FOR REQUIREMENTS PRIOR TO RELEASING CERTAIN CHILDREN FROM STATE CUSTODY; AMENDING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 30-6-1 NMSA 1978 (being Laws 1973, Chapter 360, Section 10, as amended by Laws 2004, Chapter 10, Section 1 and by Laws 2004, Chapter 11, Section 1) is amended to read:
"30-6-1. ABANDONMENT OR ABUSE OF A CHILD.--
A. As used in this section:
(1) "child" means a person who is less than eighteen years of age;
(2) "neglect" means that a child is without proper parental care and control of subsistence, education, medical or other care or control necessary for his well-being because of the faults or habits of his parents, guardian or custodian or their neglect or refusal, when able to do so, to provide them; and
(3) "negligently" refers to criminal negligence and means that a person knew or should have known of the danger involved and acted with a reckless disregard for the safety or health of the child.
B. Abandonment of a child consists of the parent, guardian or custodian of a child intentionally leaving or abandoning the child under circumstances whereby the child may or does suffer neglect. Whoever commits abandonment of a child is guilty of a misdemeanor, unless the abandonment results in the child's death or great bodily harm, in which case he is guilty of a second degree felony.
C. A parent, guardian or custodian who leaves an infant less than ninety days old in compliance with the Safe Haven for Infants Act shall not be prosecuted for abandonment of a child.
D. Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be:
(1) placed in a situation that may endanger the child's life or health, including drug addiction or fetal alcohol syndrome;
(2) tortured, cruelly confined or cruelly punished; or
(3) exposed to the inclemency of the weather.
E. Whoever commits abuse of a child that does not result in the child's death or great bodily harm is, for a first offense, guilty of a third degree felony and for second and subsequent offenses is guilty of a second degree felony. If the abuse results in great bodily harm or death to the child, he is guilty of a first degree felony.
F. Evidence that demonstrates that a child has been knowingly, intentionally or negligently allowed to enter or remain in a motor vehicle, building or any other premises that contains chemicals and equipment used or intended for use in the manufacture of a controlled substance shall be deemed prima facie evidence of abuse of the child.
G. A person who leaves an infant less than ninety days old at a hospital may be prosecuted for abuse of the infant for actions of the person occurring before the infant was left at the hospital."
Section 2. Section 32A-4-2 NMSA 1978 (being Laws 1993, Chapter 77, Section 96, as amended) is amended to read:
"32A-4-2. DEFINITIONS.--As used in the Abuse and Neglect Act:
A. "abandonment" includes instances when the parent, without justifiable cause:
(1) left the child without provision for the child's identification for a period of fourteen days; or
(2) left the child with others, including the other parent or an agency, without provision for support and without communication for a period of:
(a) three months if the child was under six years of age at the commencement of the three-month period; or
(b) six months if the child was over six years of age at the commencement of the six-month period;
B. "abused child" means a child:
(1) who has suffered or who is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian or custodian;
(2) who has suffered physical abuse, emotional abuse or psychological abuse inflicted or caused by the child's parent, guardian or custodian;
(3) who has suffered sexual abuse or sexual exploitation inflicted by the child's parent, guardian or custodian;
(4) whose parent, guardian or custodian has knowingly, intentionally or negligently placed the child in a situation that may endanger the child's life or health; or
(5) whose parent, guardian or custodian has knowingly or intentionally tortured, cruelly confined or cruelly punished the child;
C. "aggravated circumstances" include those circumstances in which the parent, guardian or custodian has:
(1) attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child's sibling;
(2) attempted, conspired to cause or caused great bodily harm or death to another parent, guardian or custodian of the child;
(3) attempted, conspired to subject or has subjected the child to torture, chronic abuse or sexual abuse; or
(4) had his parental rights over a sibling of the child terminated involuntarily;
D. "great bodily harm" means an injury to a person that creates a high probability of death, that causes serious disfigurement or that results in permanent or protracted loss or impairment of the function of [any] a member or organ of the body;
E. "neglected child" means a child:
(1) who has been abandoned by the child's parent, guardian or custodian;
(2) who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parent, guardian or custodian or the failure or refusal of the parent, guardian or custodian, when able to do so, to provide them;
(3) who has been physically or sexually abused, when the child's parent, guardian or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm;
(4) whose parent, guardian or custodian is unable to discharge his responsibilities to and for the child because of incarceration, hospitalization or physical or mental disorder or incapacity; or
(5) who has been placed for care or adoption in violation of the law; provided that nothing in the Children's Code shall be construed to imply that a child who is being provided with treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof is for that reason alone a neglected child within the meaning of the Children's Code; and further provided that no child shall be denied the protection afforded to all children under the Children's Code;
F. "physical abuse" includes [but is not limited to] any case in which the child exhibits evidence of skin bruising, bleeding, malnutrition, drug addiction, fetal alcohol syndrome, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling or death and:
(1) there is not a justifiable explanation for the condition or death;
(2) the explanation given for the condition is at variance with the degree or nature of the condition;
(3) the explanation given for the death is at variance with the nature of the death; or
(4) circumstances indicate that the condition or death may not be the product of an accidental occurrence;
G. "sexual abuse" includes [but is not limited to] criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law; and
H. "sexual exploitation" includes [but is not limited to]:
(1) allowing, permitting or encouraging a child to engage in prostitution;
(2) allowing, permitting, encouraging or engaging a child in obscene or pornographic photographing; or
(3) filming or depicting a child for obscene or pornographic commercial purposes, as those acts are defined by state law."
Section 3. Section 32A-4-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 97, as amended) is amended to read:
"32A-4-3. DUTY TO REPORT CHILD ABUSE AND CHILD
NEGLECT--RESPONSIBILITY TO INVESTIGATE CHILD ABUSE OR
NEGLECT--PENALTY.--
A. Every person, including a licensed physician; a resident or an intern examining, attending or treating a child; a law enforcement officer; a judge presiding during a proceeding; a registered nurse; a visiting nurse; a schoolteacher; a school official; a social worker acting in an official capacity; or a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to:
(1) a local law enforcement agency;
(2) the department's child abuse emergency hotline or department office in the county where the child resides; or
(3) a tribal law enforcement or social services agency for any Indian child residing in Indian country.
B. A law enforcement agency receiving the report shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to the department office in the county where the child resides and shall transmit the same information in writing within forty-eight hours. A department office receiving a report shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to a local law enforcement agency and shall transmit the same information in writing within forty-eight hours. The written report shall contain the names and addresses of the child and the child's parents, guardian or custodian, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries, and other information that the maker of the report believes might be helpful in establishing the cause of the injuries and the identity of the person responsible for the injuries. The written report shall be submitted upon a standardized form agreed to by the law enforcement agency and the department.
C. The recipient of a report under Subsection A of this section shall take immediate steps to ensure prompt investigation of the report. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect. A local law enforcement agency is responsible for investigating reports of alleged child abuse or neglect at schools, daycare facilities or child care facilities.
D. If the child alleged to be abused or neglected is in the care or control of or in a facility administratively connected to the department, the report shall be investigated by local law enforcement. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect.
E. A law enforcement agency or the department shall have access to any of the records pertaining to a child abuse or neglect case maintained by any of the persons enumerated in Subsection A of this section, except as otherwise provided in the Abuse and Neglect Act.
F. A person who violates the provisions of Subsection A of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."
Section 4. 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 to an appropriate shelter-care facility 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 shelter-care facility or a medical facility, the officer shall immediately notify the department that the child has been placed in the department's custody; or
(3) if the child is in custody due to alleged or proven child abuse involving drug addiction or fetal alcohol syndrome pursuant to Subsection D of Section 30-6-1 NMSA 1978, the child may be returned to the mother no less than three years from the date of the child's birth and upon certification by medical authorities that the mother has remained free from alcohol, illegal drugs or abuse of prescription drugs for the entire period.
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 an appropriate shelter-care facility or 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 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 two days from the date that the child was taken into custody."
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