HOUSE HEALTH AND HUMAN SERVICES COMMITTEE SUBSTITUTE FOR
HOUSE BILL 10
56th legislature - STATE OF NEW MEXICO - first session, 2023
RELATING TO THE CHILDREN'S CODE; SPECIFYING TO WHOM AND UNDER WHAT CIRCUMSTANCES INFORMATION THAT IS HELD BY THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT THAT PERTAINS TO CHILD ABUSE AND NEGLECT MAY BE SHARED; REQUIRING THAT INFORMATION BE PROVIDED ABOUT CHILD FATALITIES OR NEAR FATALITIES; PROTECTING PERSONAL IDENTIFIER INFORMATION OF DEPARTMENT CLIENTS; REQUIRING THE COURT'S WRITTEN ORDER WHEN EXCLUDING MEDIA FROM AN ABUSE OR NEGLECT PROCEEDING, WHICH IS APPEALABLE; REQUIRING REPORTS ON THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT'S WEBSITE; PRESCRIBING A PENALTY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 32A-4-20 NMSA 1978 (being Laws 1993, Chapter 77, Section 114, as amended) is amended to read:
"32A-4-20. CONDUCT OF HEARINGS--FINDINGS--DISMISSAL--DISPOSITIONAL MATTERS--ORDER EXCLUDING MEDIA APPEALABLE--PENALTY.--
A. The proceedings shall be recorded by stenographic notes or by electronic, mechanical or other appropriate means. The court docket number is a public record.
B. [All] Abuse and neglect hearings shall be closed to the general public.
C. Only the parties, their counsel, witnesses and other persons approved by the court may be present at a closed hearing. The foster parent, preadoptive parent or relative providing care for the child shall be given notice and an opportunity to be heard at the dispositional phase. Those other persons the court finds to have a proper interest in the case or in the work of the court may be admitted by the court to closed hearings on the condition that they refrain from divulging any information that would identify the child or family involved in the proceedings.
D. Accredited representatives of the news media shall be allowed to be present at closed hearings, [subject to] on the condition that they refrain from divulging information that would identify [any] the child involved in the proceedings or the [parent, guardian or] custodian of that child and subject to enabling [regulations] rules as the court finds necessary for the maintenance of order and decorum and for the furtherance of the purposes of the Children's Code. A child who is the subject of an abuse and neglect proceeding and is present at a hearing may object to the presence of the media. The court may exclude the media if it finds that the presence of the media is contrary to the best interests of the child. The judge shall submit a written order explaining the reasons for excluding the media from a hearing.
E. If the court finds that it is in the best interest of a child under fourteen years of age, the child may be excluded from a hearing under the Abuse and Neglect Act. A child fourteen years of age or older may be excluded from a hearing only if the court makes a finding that there is a compelling reason to exclude the child and states the factual basis for the finding.
F. Those persons or parties granted admission to a closed hearing who intentionally divulge information in violation of this section are guilty of a petty misdemeanor.
G. The court shall determine if the allegations of the petition are admitted or denied. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court, after hearing all of the evidence bearing on the allegations of neglect or abuse, shall make and record its findings on whether the child is a neglected child, an abused child or both. If the petition alleges that the parent, guardian or custodian has subjected the child to aggravated circumstances, then the court shall also make and record its findings on whether the aggravated circumstances have been proven.
H. If the court finds on the basis of a valid admission of the allegations of the petition or on the basis of clear and convincing evidence, competent, material and relevant in nature, that the child is neglected or abused, the court shall enter an order finding that the child is neglected or abused and may proceed immediately or at a postponed hearing to make disposition of the case. If the court does not find that the child is neglected or abused, the court shall dismiss the petition and may refer the family to the department for appropriate services.
I. A party aggrieved by an order entered pursuant to Subsection D or H of this section may file an immediate appeal to the court of appeals.
J. In that part of the hearings held under the Children's Code on dispositional issues, all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value even though not competent had it been offered during the part of the hearings on adjudicatory issues.
K. On the court's motion or that of a party, the court may continue the hearing on the petition for a period not to exceed thirty days to receive reports and other evidence in connection with disposition. The court shall continue the hearing pending the receipt of the predisposition study and report if that document has not been prepared and received. During any continuances under this subsection, the court shall make an appropriate order for legal custody."
SECTION 2. Section 32A-4-33 NMSA 1978 (being Laws 1993, Chapter 77, Section 127, as amended) is amended to read:
"32A-4-33. CONFIDENTIALITY--[RECORDS] INFORMATION--PENALTY.--
A. As used in the Abuse and Neglect Act, "personal identifier information" means the person's:
(1) name; and
(2) contact information, including home or business address, email address or phone number.
B. In investigations and proceedings alleging abuse or neglect, the department shall not disclose personal identifier information of the child or the child's parents except as follows:
(1) in the case of the death or near death of a child;
(2) in cases in which a child is missing or abducted or the child is or may be in danger of serious injury or death unless immediate action is taken or there are other exigent circumstances, the department shall release to law enforcement and the nationally recognized organization that serves as the national clearinghouse and resource center for information about missing and exploited children as much personal identifier information as necessary to identify the child, a possible abductor or a suspect in an abuse or neglect case or to protect evidence of a crime against the child;
(3) when the child or the child's parents have been publicly identified by a person outside the department; or
(4) to the persons enumerated in Subsection F of this section.
C. Department information obtained during the course of an investigation into allegations of abuse or neglect shall be maintained by the department as required by federal law as a condition of the allocation of federal funds in New Mexico. The public release of department information shall be construed as openly as possible under federal and state law.
D. Information released by the department that has not otherwise been publicly released by a person outside the department shall be redacted as needed to safeguard personal identifier information. In a case in which a child or the child's family has been publicly identified through press reports, a lawsuit or other means, the department may respond publicly with factual and complete information about the actions the department has taken in the case.
[A. All records or] E. Redacted 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] and 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] may be released by the department to a person who is conducting bona fide research, the results of which should provide the department information on child abuse and neglect that would be useful to the department in developing policy and practice.
[B.] F. The [records] information described in Subsection [A] E of this section shall be disclosed [only] without redaction 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 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, but only if the [records concern] information concerns the child's social or educational needs;
(12) a grandparent, parent of a sibling, relative or fictive kin, if the [records or] information [pertain] pertains to a child being considered for placement with that grandparent, parent of a sibling, relative or fictive kin and the [records or] information [concern] concerns 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] a 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) the office of the state medical investigator; and
[(18)] (19) any other person [or entity], by order of the court, having a legitimate interest in the case or the work of the court.
G. A party to a court proceeding relating to a department investigation into allegations of abuse or neglect may comment publicly as long as the party does not disclose the personal identifier information that is still confidential for the child or the child's parents.
[C.] H. 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 or redacted. 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] that information the department finds would be likely to endanger the life or safety of [any] a person providing information to the department.
I. The department is not required by this section to disclose department information if, after consultation with the district attorney, the district attorney determines that disclosure would cause specific, material harm to a criminal investigation or prosecution.
J. The department shall provide pertinent department information upon request to a prospective adoptive parent, foster parent or guardian if the information concerns a child for whom the prospective adoptive parent, foster parent or guardian seeks to adopt or provide care.
K. A person may authorize the release of department information about that person but shall not waive the confidentiality of department information concerning any other person.
L. The department shall provide a summary of the outcome of a department investigation to the person who reported the suspected child abuse or neglect in a timely manner, not later than twenty days after the deadline for closure of the investigation.
[D.] M. 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] information 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.] N. The department [shall] may promulgate rules for implementing disclosure of [records] information pursuant to this section and in compliance with state and federal law and the Children's Court Rules.
O. Nothing in this section or Section 32A-4-33.1 NMSA 1978 limits the right of a person to seek documents or information through other provisions of law.
P. Nothing in this section shall apply to the Indian Family Protection Act, information or records concerning Indian children or Indian parents, guardians or custodians, as those terms are defined in the Indian Family Protection Act, or investigations or proceedings pursuant to the Indian Family Protection Act."
SECTION 3. Section 32A-4-33.1 NMSA 1978 (being Laws 2009, Chapter 239, Section 52) is amended to read:
"32A-4-33.1. FATALITIES--NEAR FATALITIES--RECORDS RELEASE [WHEN A CHILD DIES].--
A. As used in this section, "near fatality" means an act that, as certified by a physician, including the child's treating physician, placed a child in serious or critical medical condition.
[A.] B. After learning that a child fatality or near fatality has occurred and that there is reasonable suspicion that the fatality or near fatality was caused by abandonment, abuse or neglect, the department shall [upon written request to the secretary of the department] release the following information, if in the department's possession, within five business days:
[(1) the age and gender of the child;
(2) the date of death;
(3) whether the child was in foster care or in the home of the child's parent or guardian at the time of death; and
(4) whether an investigation is being conducted by the department.
B. If an investigation is being conducted by the department, then a request for further information beyond that listed in Subsection A of this section shall be answered with a statement that a report is under investigation.]
(1) for a fatality:
(a) the name, age and gender of the child;
(b) the date and location of the fatality; and
(c) the cause of death, if known;
(2) for a near fatality:
(a) the age and gender of the child; and
(b) the type and extent of injuries;
(3) for either a fatality or near fatality:
(a) whether the child is currently or has been in the custody of the department within the last five years or the child's family is currently or has been served or under investigation by the department within the last five years;
(b) whether the child lived with a parent, guardian or custodian; was in foster care; was in a residential facility or detention facility; was a runaway; or had some other living arrangement;
(c) whether an investigation is being conducted by the department or by a law enforcement agency, if known;
(d) a detailed synopsis of prior reports of abuse or neglect involving the child, siblings or other children in the home, if applicable; and
(e) actions taken by the department to ensure the safety of siblings, if applicable; and
(4) any other information that is publicly known.
C. Upon completion of a child abandonment, abuse or neglect investigation into a [child's death] fatality or near fatality, if it is determined that abandonment, abuse or neglect caused the [child's death] fatality or near fatality, the following documents shall be released upon request:
(1) a summary of the department's investigation;
(2) a law enforcement investigation report, if in the department's possession; and
(3) [a medical examiner's] the medical investigator's report in the case of a fatality, if in the department's possession.
D. Prior to releasing [any document pursuant to] documents specified in Subsection C of this section, the department shall consult with the district attorney and shall redact:
(1) information that [would], in the opinion of the district attorney, [jeopardize a] would cause specific material harm to the criminal investigation or [proceeding] prosecution;
(2) [identifying] personal identifier information related to a reporting party or any other party providing information; and
(3) information that is privileged, confidential or not subject to disclosure pursuant to [any] Section 32A-4-33 NMSA 1978 or other state or federal law.
E. [Once] If documents pursuant to this section have been released by the department, the department may comment on the case [within the scope of the release].
F. Information released by the department consistent with the requirements of this section does not require prior notice to any [other individual] person.
G. Nothing in this section shall be construed as requiring the department to obtain documents not in the abuse and neglect case file.
H. A person disclosing abandonment, abuse [and] or neglect case file information as required by this section shall not be subject to suit in civil or criminal proceedings for complying with the requirements of this section.
I. The department shall continue to provide timely allowable information to the public on the investigation into a case of fatality or near fatality of a child, including a summary report that shall include:
(1) actions taken by the department in response to the case, including changes in policies, practices, procedures and processes that have been made to address issues raised in the investigation of the case and any recommendations for further changes in policies, practices, procedures, processes and other rules or laws to address the issues; and
(2) the information described in Subsection J or K of this section.
J. If the summary report involves a child who was residing in the child's home, the report shall contain a summary of all of the following:
(1) whether services pursuant to the Abuse and Neglect Act were being provided to the child, a member of the child's household or a person who had been arrested for abandonment, abuse or neglect of the child prior to the time of the fatality or near fatality and the date of the last contact between the person providing the services and the person receiving the services prior to or at the time of the fatality or near fatality;
(2) whether the child, a member of the child's household or the person who had been arrested for abandonment, abuse or neglect of the child prior to the fatality or near fatality was the subject of a current or previous department report;
(3) all involvement of the child's parents or the person who had been arrested for abuse or neglect of the child prior to the fatality or near fatality in a situation for which a department report was made or services provided pursuant to the Abuse and Neglect Act in the five years preceding the incident that culminated in the fatality or near fatality; and
(4) any investigation pursuant to a department report concerning the child, a member of the child's household or the person who had been suspected or arrested of the abandonment, abuse or neglect of the child or services provided to the child or the child's household since the date of the incident involving a fatality or a near fatality.
K. If the summary report involves a child who was in out-of-home placement, the summary report shall include:
(1) the name of the agency the licensee was licensed by; and
(2) the licensing history of the out-of-home placement, including the type of license held by the operator of the placement, the period for which the placement has been licensed and a summary of all violations by the licensee and any other actions by the licensee or an employee of the licensee that constitute a substantial failure to protect and promote the health, safety and welfare of a child.
L. Nothing in this section shall apply to the Indian Family Protection Act, information or records concerning Indian children or Indian parents, guardians or custodians, as those terms are defined in the Indian Family Protection Act, or investigations or proceedings pursuant to the Indian Family Protection Act."
SECTION 4. A new section of the Abuse and Neglect Act is enacted to read:
"[NEW MATERIAL] CREATION AND MAINTENANCE OF DASHBOARD ON DEPARTMENT WEBSITE--ANNUAL REPORT.--
A. The department shall create and maintain a public, easily accessible and searchable dashboard on the department's website. The confidentiality of personal identifier information shall be safeguarded consistent with federal and state law. The dashboard shall be updated at least quarterly and shall include the data to be reported to the governor and the legislature.
B. By February 1 of each year, the department shall submit a report to the governor and the legislature that includes the following data for the prior twelve months ending on December 31:
(1) the number of fatalities and near fatalities of children in the custody of the department or as a result of abandonment, abuse or neglect when in the custody of a parent, guardian, custodian or other person;
(2) the number of children in department custody and the average length of time in custody, including the number of in-state and out-of-state placements in which children are placed;
(3) the number of children in foster care and the length of time in foster care or living with relatives or fictive kin;
(4) the number of complaints received alleging abandonment, abuse or neglect;
(5) the number of investigations that resulted from the complaints, the number of complaints accepted for investigation and not accepted for investigation and the identified reasons in the aggregate for not investigating a complaint;
(6) the number of children removed from the custody of a parent, guardian, custodian or other person and the reasons for removals;
(7) the number of children returned to a household from which they were removed;
(8) the number of children placed in the custody of the department who have run away while in custody;
(9) 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;
(10) the number of adoptions and the number of adoptions for which funding was terminated prior to the child reaching the age of eighteen;
(11) the number of children and cases transferred to the jurisdiction of Indian nations, tribes and pueblos pursuant to the Indian Family Protection Act; and
(12) any other information the department considers of interest to the public.
C. Data shall be disaggregated by age, race, ethnicity, gender, disability status and geographic location.
D. The report shall be published on the department's website."
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