SB0128

SENATE BILL 128

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Katy M. Duhigg and Linda M. Lopez and Siah Correa Hemphill

AN ACT

RELATING TO CHILDREN; AMENDING THE FAMILY IN NEED OF COURT-ORDERED SERVICES ACT AND THE ABUSE AND NEGLECT ACT; REVISING PROCEDURES FOR PLACING CHILDREN IN PROTECTIVE CUSTODY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 32A-1-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 13, as amended) is amended to read:

"32A-1-4. DEFINITIONS.--As used in the Children's Code:

A. "active efforts" means efforts that are affirmative, active, thorough and timely and that represent a higher standard of conduct than reasonable efforts;

B. "adult" means a person who is eighteen years of age or older;

C. "child" means a person who is less than eighteen years old;

D. "council" means the substitute care advisory council established pursuant to Section 32A-8-4 NMSA 1978;

E. "court", when used without further qualification, means the children's court division of the district court and includes the judge, special master or commissioner appointed pursuant to the provisions of the Children's Code or supreme court rule;

F. "court-appointed special advocate" means a person appointed pursuant to the provisions of the Children's Court Rules to assist the court in determining the best interests of the child by investigating the case and submitting a report to the court;

G. "custodian" means an adult with whom the child lives who is not a parent or guardian of the child;

H. "department" means the children, youth and families department, unless otherwise specified;

I. "disproportionate minority contact" means the involvement of a racial or ethnic group with the criminal or juvenile justice system at a proportion either higher or lower than that group's proportion in the general population;

J. "federal Indian Child Welfare Act of 1978" means the federal Indian Child Welfare Act of 1978, as that act may be amended or its sections renumbered;

K. "fictive kin" means a person:

(1) who is not a relative or an extended family member of a child and who has a significant, family-like relationship with the child or the child's family, which relationship existed prior to the child's entry into foster care; or

(2) chosen by a child who is fourteen years of age or older, when it is in the best interest of the child to identify that person as fictive kin;

[K.] L. "foster parent" means a person, including a relative of the child, licensed or certified by the department or a child placement agency to provide care for children in the custody of the department or agency;

[L.] M. "guardian" means a person appointed as a guardian by a court or Indian tribal authority or a person authorized to care for the child by a parental power of attorney as permitted by law;

[M.] N. "guardian ad litem" means an attorney appointed by the children's court to represent and protect the best interests of the child in a case; provided that no party or employee or representative of a party to the case shall be appointed to serve as a guardian ad litem;

[N.] O. "Indian" means, whether an adult or child, a person who is:

(1) a member of an Indian tribe; or

(2) eligible for membership in an Indian tribe;

[O.] P. "Indian child" means an Indian person, or a person whom there is reason to know is an Indian person, under eighteen years of age, who is neither:

(1) married; or

(2) emancipated;

[P.] Q. "Indian child's tribe" means:

(1) the Indian tribe in which an Indian child is a member or eligible for membership; or

(2) in the case of an Indian child who is a member or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has more significant contacts;

[Q.] R. "Indian custodian" means an Indian who, pursuant to tribal law or custom or pursuant to state law:

(1) is an adult with legal custody of an Indian child; or

(2) has been transferred temporary physical care, custody and control by the parent of the Indian child;

[R.] S. "Indian tribe" means an Indian nation, tribe, pueblo or other band, organized group or community of Indians recognized as eligible for the services provided to Indians by the secretary because of their status as Indians, including an Alaska native village as defined in 43 U.S.C. Section 1602(c) or a regional corporation as defined in 43 U.S.C. Section 1606. For the purposes of notification to and communication with a tribe as required in the Indian Family Protection Act, "Indian tribe" also includes those tribal officials and staff who are responsible for child welfare and social services matters;

[S.] T. "judge", when used without further qualification, means the judge of the court;

[T.] U. "legal custody" means a legal status created by order of the court or other court of competent jurisdiction or by operation of statute that vests in a person, department or agency the right to determine where and with whom a child shall live; the right and duty to protect, train and discipline the child and to provide the child with food, shelter, personal care, education and ordinary and emergency medical care; the right to consent to major medical, psychiatric, psychological and surgical treatment and to the administration of legally prescribed psychotropic medications pursuant to the Children's Mental Health and Developmental Disabilities Act; and the right to consent to the child's enlistment in the armed forces of the United States;

[U.] V. "member" or "membership" means a determination made by an Indian tribe that a person is a member of or eligible for membership in that Indian tribe;

[V.] W. "parent" or "parents" means a biological or adoptive parent if the biological or adoptive parent has a constitutionally protected liberty interest in the care and custody of the child or a person who has lawfully adopted an Indian child pursuant to state law or tribal law or tribal custom;

[W.] X. "permanency plan" means a determination by the court that the child's interest will be served best by:

(1) reunification;

(2) placement for adoption after the parents' rights have been relinquished or terminated or after a motion has been filed to terminate parental rights;

(3) placement with a person who will be the child's permanent guardian;

(4) placement in the legal custody of the department with the child placed in the home of a fit and willing relative; or

(5) placement in the legal custody of the department under a planned permanent living arrangement;

[X.] Y. "person" means an individual or any other form of entity recognized by law;

[Y.] Z. "plan of care" means a plan created by a health care professional intended to ensure the safety and well-being of a substance-exposed newborn by addressing the treatment needs of the child and any of the child's parents, relatives, guardians, family members or caregivers to the extent those treatment needs are relevant to the safety of the child;

[Z.] AA. "preadoptive parent" means a person with whom a child has been placed for adoption;

[AA.] BB. "protective supervision" means the right to visit the child in the home where the child is residing, inspect the home, transport the child to court-ordered diagnostic examinations and evaluations and obtain information and records concerning the child;

[BB.] CC. "relative" means a person related to another person:

(1) by blood within the fifth degree of consanguinity or through marriage by the fifth degree of affinity; or

(2) with respect to an Indian child, as

established or defined by the Indian child's tribe's custom or law;

[CC.] DD. "reservation" means:

(1) "Indian country" as defined in 18 U.S.C. Section 1151;

(2) any lands to which the title is held by the United States in trust for the benefit of an Indian tribe

or individual; or

(3) any lands held by an Indian tribe or individual subject to a restriction by the United States

against alienation;

[DD.] EE. "reunification" means either a return of the child to the parent or to the home from which the child was removed or a return to the noncustodial parent;

[EE.] FF. "secretary" means the United States secretary of the interior;

[FF.] GG. "tribal court" means a court with jurisdiction over child custody proceedings that is either a court of Indian offenses, a court established and operated under the law or custom of an Indian tribe or any other administrative body that is vested by an Indian tribe with authority over child custody proceedings;

[GG.] HH. "tribal court order" means a document issued by a tribal court that is signed by an appropriate authority, including a judge, governor or tribal council member, and that orders an action that is within the tribal court's jurisdiction; and

[HH.] II. "tribunal" means any judicial forum other than the court."

SECTION 2. Section 32A-3B-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 75, as amended) is amended to read:

"32A-3B-3. PROTECTIVE CUSTODY--INTERFERENCE WITH PROTECTIVE CUSTODY--PENALTY.--

A. A child may be taken into protective custody by [a law enforcement officer] the department without a court order when the [officer] department has reasonable grounds to believe that the child:

(1) has run away from the child's parent, guardian or custodian;

(2) without parental supervision is suffering from illness or injury;

(3) has been abandoned;

(4) is endangered by the child's surroundings and removal from those surroundings is necessary to ensure the child's safety;

(5) is engaged in an act that would be designated as prostitution if committed by an adult; or

(6) is a victim of human trafficking as defined in Section 30-52-1 NMSA 1978.

B. Law enforcement shall assist in taking a child into protective custody at the request of the department.

C. When a law enforcement officer finds a child in a situation that may result in the department taking the child into protective custody pursuant to Subsection A of this section, the law enforcement officer shall hold the child until the department is available to determine whether the child should be taken into protective custody. When a child is found in surroundings or conditions outside of the child's home that imminently endanger the child's health or welfare, the law enforcement officer may transport the child to, and hold the child in, an alternate safe location until the department is available. The child shall not be held in a jail or another facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged to be delinquent children, an immigration processing or detention facility or any other secure facility.

[B.] D. A child may be taken into protective custody pursuant to a court order issued after an agency legally charged with the supervision of the child has notified [a law enforcement agency] the department that the child has run away from a placement.

[C.] E. When a child is taken into protective custody, the department shall make [a reasonable effort] active efforts to determine whether the child is an Indian child.

[D.] F. Any person, other than the child taken into protective custody, who interferes with placing the child in protective custody is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."

SECTION 3. Section 32A-3B-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 76, as amended) is amended to read:

"32A-3B-4. PROTECTIVE CUSTODY--RESTRICTIONS--TIME LIMITATIONS.--

A. [A law enforcement officer who] When the department takes a child into protective custody, the department shall, with all reasonable speed, [(1)] inform the child of the reasons for the protective custody [and

(2) contact the department].

B. When the department [is contacted by a law enforcement officer who] has taken a child into protective custody, the department shall refer the child to community based services and may:

(1) accept custody of the child and designate an appropriate placement in the community for the child; or

(2) return the child to the child's parent, guardian or custodian if the child's safety is assured.

C. A child [taken into protective custody] being held or transported by a law enforcement officer pursuant to Subsection C of Section 32A-3B-3 NMSA 1978 shall not be placed in or transported in a law enforcement vehicle or any other vehicle that contains an adult placed under arrest, unless circumstances exist in which any delay in transporting the child to an appropriate facility would be likely to result in imminent substantial danger to the child's physical safety. When such circumstances exist, the circumstances shall be described in writing by the driver of the vehicle and submitted to the driver's supervisor and the department within two days after the driver transported the child.

D. A child taken into protective custody shall not be held involuntarily for more than [two] three days, unless a petition [to extend the custody] is filed pursuant to the provisions of the Family in Need of Court-Ordered Services Act or the Abuse and Neglect Act.

E. When a petition is filed or any time thereafter, the children's court or district court may issue an ex-parte custody order based upon a sworn written statement of facts showing that probable cause exists to believe that protective custody of the child is necessary.

F. The [protective] ex-parte custody order shall be served on the respondent by a person authorized to serve arrest warrants [and shall direct the law enforcement officer to take custody of the child and deliver the child to a place designated by the court].

G. The Rules of Evidence do not apply to the issuance of an ex-parte custody order."

SECTION 4. Section 32A-3B-7 NMSA 1978 (being Laws 1993, Chapter 77, Section 79) is amended to read:

"32A-3B-7. PROTECTIVE CUSTODY HEARING--TIME

LIMITATIONS.--

A. When a child of an alleged family in need of court-ordered services is taken into protective custody by the department or the department petitions the court for protective custody of the child, a custody hearing shall be held within [ten] seven days from the date the petition is filed to determine if the child should remain with the family or be placed in the custody of the department pending adjudication. Upon written request of the respondent, the hearing may be held earlier, but in no event shall the hearing be held sooner than two days after the date the petition was filed.

B. The parent, guardian or custodian of the child shall be given reasonable notice of the time and place of the hearing.

C. When the custody hearing is conducted, the court shall release the child to [his] the child's parent, guardian or custodian unless probable cause exists to believe that:

(1) the child is in immediate danger from [his] the child's surroundings and the child's removal from those surroundings is necessary for [his] the child's safety or well-being;

(2) the child will be subject to injury by others if not placed in the protective custody of the department; or

(3) a parent, guardian or custodian of the child or any other person is unable or unwilling to provide adequate supervision and care for the child.

D. At the conclusion of the protective custody hearing, if the court determines that protective custody pending adjudication is appropriate, the court may:

(1) award custody of the child to the department; or

(2) return the child to the child's parent, guardian or custodian, subject to conditions that will reasonably [assure] ensure the safety and well-being of the child.

E. In addition to any disposition made by the court pursuant to the provisions of Subsection D of this section, the court may order the child and family to participate in an assessment and referral process. Copies of any diagnostic or evaluation reports ordered by the court shall be provided to the parties at least five days before the adjudicatory hearing is scheduled. The diagnostic and evaluation reports shall not be sent to the court.

F. The Rules of Evidence shall not apply to protective custody hearings conducted pursuant to the provisions of this section."

SECTION 5. 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" includes 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 parental rights over a sibling of the child terminated involuntarily;

D. "educational decision maker" means an individual appointed by the children's court to attend school meetings and to make decisions about the child's education that a parent could make under law, including decisions about the child's educational setting, and the development and implementation of an individual education plan for the child;

[E. "fictive kin" means a person not related by birth, adoption or marriage with whom a child has an emotionally significant relationship;]

E. "exigent circumstances" means there is probable cause to believe that a child is likely to suffer serious imminent harm in the time it would take to obtain an ex-parte removal order, there is no less intrusive alternative to removing the child from the home that would reasonably and sufficiently protect the child's health or safety and probable cause exists to believe one of the following is true:

(1) the child requires immediate care or diagnosis for sexual abuse or abuse involving serious physical injury;

(2) the child is in need of immediate medical care for a serious medical condition;

(3) there is a threat to the health or safety of the child that cannot be mitigated by any reasonable means other than immediate removal; or

(4) the child has been left by the parent, guardian or custodian without adequate supervision or an adequate plan for support and care;

F. "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 a member or organ of the body;

G. "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 that person's 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;

H. "physical abuse" includes any case in which the child suffers strangulation or suffocation and any case in which the child exhibits evidence of skin bruising, bleeding, malnutrition, 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;

I. "relative" means a person related to another person by birth, adoption or marriage within the fifth degree of consanguinity;

J. "sexual abuse" includes criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law;

K. "sexual exploitation" includes:

(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;

L. "sibling" means a brother or sister having one or both parents in common by birth or adoption;

M. "strangulation" has the same meaning as set forth in Section 30-3-11 NMSA 1978;

N. "suffocation" has the same meaning as set forth in Section 30-3-11 NMSA 1978; and

O. "transition plan" means an individualized written plan for a child, based on the unique needs of the child, that outlines all appropriate services to be provided to the child to increase independent living skills. The plan shall also include responsibilities of the child, and any other party as appropriate, to enable the child to be self-sufficient upon emancipation."

SECTION 6. Section 32A-4-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 98, as amended) is amended to read:

"32A-4-4. COMPLAINTS--REFERRAL--PRELIMINARY INQUIRY.--

A. Reports alleging neglect or abuse shall be referred to the department, which shall conduct an investigation to determine the best interests of the child with regard to any action to be taken. The name and information regarding the person making the report shall not be disclosed absent the consent of the informant or a court order.

B. If a report alleging neglect or abuse meets the criteria established pursuant to Section 32A-4-4.1 NMSA 1978, the department may assign the case to the multilevel response system.

C. During the investigation of a report alleging neglect or abuse, the matter may be referred to another appropriate agency and conferences may be conducted for the purpose of effecting adjustments or agreements that will obviate the necessity for filing a petition. A representative of the department shall, at the initial time of contact with the party subject to the investigation, advise the party of the reports or allegations made, in a manner that is consistent with laws protecting the rights of the informant. The parties shall be advised of their basic rights and no party may be compelled to appear at any conference, to produce any papers or to visit any place. The investigation shall be completed within a reasonable period of time from the date the report was made.

[D. After completion of the investigation on a neglect or abuse report, the department shall either recommend or refuse to recommend the filing of a petition.

E.] D. When a child is taken into temporary custody, the department shall file a petition within [two] three days. If a petition is not filed in a timely manner, the child shall be released to the child's parent, guardian or custodian."

SECTION 7. Section 32A-4-6 NMSA 1978 (being Laws 1993, Chapter 77, Section 100, as amended) is amended to read:

"32A-4-6. TAKING INTO CUSTODY--RELEASE OR DELIVERY FROM CUSTODY--PENALTY.--

A. A child may be [held or] taken into temporary custody

[(1) by a law enforcement officer when the officer has evidence giving rise to reasonable grounds to believe that the child is abused or neglected and that there is an immediate threat to the child's safety; provided that the law enforcement officer contacts the department to enable the department to conduct an on-site safety assessment to determine whether it is appropriate to take the child into immediate custody, except that a child may be taken into custody by a law enforcement officer without a protective services assessment being conducted if:

(a) the child's parent, guardian or custodian has attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child's sibling;

(b) the child's parent, guardian or custodian has attempted, conspired to cause or caused great bodily harm or death to another parent, guardian or custodian of the child;

(d) the child is in need of emergency medical care;

(e) the department is not available to conduct a safety assessment in a timely manner; or

(f) the child is in imminent risk of abuse; or

(2) by medical personnel when there are reasonable grounds to believe that the child has been injured as a result of abuse or neglect and that the child may be at risk of further injury if returned to the child's parent, guardian or custodian. The medical personnel shall hold the child until a law enforcement officer is available to take custody of the child pursuant to Paragraph (1) of this subsection] only pursuant to an order from the district court or exigent circumstances as defined in Subsection E of Section 32A-4-2 NMSA 1978.

B. When the department determines the criteria for temporary removal is met, the department shall file an application for removal. An application for a removal order filed by the department shall include a sworn written statement of facts by a department representative, law enforcement officer or medical personnel. Upon review of the application, the district court may issue an ex-parte removal order authorizing the department to take temporary custody of a child upon finding that continuation in the home would be contrary to the child's welfare and probable cause exists to believe that temporary custody is necessary to protect the child from imminent threat of abuse or neglect. When determining whether to issue an ex-parte removal order, the court shall consider whether the threat can be mitigated by less extreme measures and whether the harm from any imminent threat of abuse or neglect outweighs the harm to the child resulting from removal.

C. The department may take a child into temporary custody without an ex-parte removal order if exigent circumstances exist. The department shall document its decision to take the child into temporary custody based on exigent circumstances. When the department has obtained temporary custody through a determination that exigent circumstances exist, the department shall file an application for removal within eighteen hours of the determination.

D. Pending the department filing the application for removal and the court's action on the application, or upon a determination that exigent circumstances exist, the department may hold and transport the child. Law enforcement shall assist in taking a child into the department's temporary custody at the request of the department.

E. When a law enforcement officer or medical personnel has a reasonable belief that a child has been injured as a result of abuse or neglect or that the child may be at risk of imminent harm if returned to the child's parent, guardian or custodian, the law enforcement officer or medical personnel shall contact the department and shall hold the child until the department is available to conduct an on-site safety assessment to determine whether it is necessary to take the child into temporary custody pursuant to Subsection A of this section.

F. If a law enforcement officer has evidence to believe exigent circumstances exist, and the department declined to take temporary custody of a child under exigent circumstances, law enforcement may place the child in the temporary custody of the department. At the time the child is placed in the department's custody, law enforcement shall provide the department with written documentation of the evidence establishing exigent circumstances. The department shall file an application for removal within eighteen hours of receiving custody or return the child to the child's parent, guardian or custodian if the department determines that the child can be safely returned.

G. When the department has obtained temporary custody of a child through an ex-parte removal order or through a determination that exigent circumstances exist, the department shall file a petition within three days from the date that the child was taken into temporary custody. This three-day period runs concurrently with the eighteen-hour period for filing an application for removal under exigent circumstances when applicable. The department may return the child to the child's parent, guardian or custodian at any time within the three-day period after the child was taken into temporary custody if the department determines that the child can be safely returned.

[B.] H. A child shall not be taken into [protective] temporary custody solely on the grounds that the child's parent, guardian or custodian refuses to consent to the administration of a psychotropic medication to the child.

[C. When a child is taken into custody by law enforcement, the department is not compelled to place the child in an out-of-home placement and may release the child to the child's parent, guardian or custodian.

D.] I. When [a child is taken into custody] the department has obtained temporary custody of a child through an ex-parte removal order or through a determination that exigent circumstances exist, the department shall make active efforts to determine whether the child is an Indian child as required pursuant to the Indian Family Protection Act.

J. When the department has obtained temporary custody of a child through an ex-parte removal order or through a determination that exigent circumstances exist, but the initial allegations did not include concerns for the child's siblings or other children living in the home, the safety of the other children living in the home and siblings living in or outside the home shall be assessed by the department. If there are danger indicators that cannot be mitigated, the siblings and other children shall also be taken into temporary custody only if independent probable cause exists to believe temporary custody is necessary as to each child.

K. When the department has obtained temporary custody of a child through an ex-parte removal order or through a determination that exigent circumstances exist, the department shall give written notice thereof, including the court order, if any, 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.

L. When the department takes a child into temporary custody through a determination that exigent circumstances exist due to alleged sexual abuse or abuse involving serious physical injury, the department shall immediately arrange to have the child examined by a physician or a health care provider who has specific training in evaluations of child abuse. If the examination rules out abuse, the department shall release the child to the custody of the parent, guardian or custodian unless the department files an application for a removal order.

M. The Rules of Evidence shall not apply to the issuance of an ex-parte removal order.

[E.] N. Any person who intentionally interferes with protection of a child, as provided by [Subsection A of] this section, is guilty of a petty misdemeanor."

SECTION 8. Section 32A-4-17.1 NMSA 1978 (being Laws 2016, Chapter 54, Section 3) is amended to read:

"32A-4-17.1. NOTICE TO GRANDPARENTS AND RELATIVES.-- Within thirty days after a child is taken into custody by [law enforcement] the department, or when the department files a petition seeking legal custody of the child, whichever occurs first, the department shall exercise due diligence and make reasonable efforts to identify and provide notice to all grandparents; all parents of a sibling of the child, when the parent has legal custody of the sibling; and other adult relatives of the child, including adult relatives suggested by the parents, unless such notice would be contrary to the best interests of the child due to family or domestic violence. The notice shall:

A. specify that the child has been or is being removed from the custody of the parent or parents of the child;

B. explain the options the relative has under federal, state or other law to participate in the care and placement of the child, including any options that may be lost by failing to respond to the notice;

C. describe the requirements for becoming a foster family home and the additional services and support that are available for children placed in such a home; and

D. set out the dates of any currently scheduled court hearings that involve the child."

SECTION 9. Section 32A-4-18 NMSA 1978 (being Laws 1993, Chapter 77, Section 112, as amended) is amended to read:

"32A-4-18. CUSTODY HEARINGS--TIME LIMITATIONS--NOTICE-- PROBABLE CAUSE.--

A. [When a child alleged to be neglected or abused has been placed in the legal custody of the department or the department has petitioned the court for temporary custody] A custody hearing shall be held within [ten] seven days from the date the petition alleging abuse or neglect is filed to determine if [the] a child should remain in or be placed in the department's custody pending adjudication. Upon written request of the respondent, the hearing may be held earlier, but in no event shall the hearing be held sooner than two days after the date the petition was filed.

B. The parent, guardian or custodian of the child alleged to be abused or neglected shall be given reasonable notice of the time and place of the custody hearing.

C. At the custody hearing, the court shall return legal custody of the child to the child's parent, guardian or custodian unless probable cause exists to believe that:

(1) the child is suffering from an illness or injury, and the parent, guardian or custodian is not providing adequate care for the child;

(2) the child is in immediate danger from the child's surroundings and removal from those surroundings is necessary for the child's safety or well-being;

(3) the child will be subject to injury by others if not placed in the custody of the department;

(4) there has been an abandonment of the child by the child's parent, guardian or custodian; or

(5) the parent, guardian or custodian [is not able or willing to provide adequate supervision and care for the child] left the child without adequate supervision or a plan for support and care.

D. At the conclusion of the custody hearing, if the court determines that probable cause exists pursuant to Subsection C of this section, the court may:

(1) return legal custody of the child to the child's parent, guardian or custodian upon such conditions as will reasonably ensure the safety and well-being of the child, including protective supervision or maintenance at home by the department or participation in programs or services aimed at addressing the underlying causative factors that impact the safety or well-being of the child; or

(2) award legal custody of the child to the department.

E. Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child's health and safety. When the department determines that the home of an adult relative of the child meets all relevant child protection and licensing standards and placement in the home would be in the best interest of the child, the department shall give a preference to placement of the child in that home. The department shall make reasonable efforts to conduct home studies on appropriate relatives who express an interest in providing placement for the child.

F. At the conclusion of the custody hearing, if the court determines that probable cause does not exist pursuant to Subsection C of this section, the court shall:

(1) retain jurisdiction and, unless the court permits otherwise, order that the respondent and child remain in the jurisdiction of the court pending the adjudication;

(2) return legal custody of the child to the child's parent, guardian or custodian with conditions to provide for the safety and well-being of the child; and

(3) order that the child's parent, guardian or custodian allow the child necessary contact with the child's guardian ad litem or attorney.

G. At the conclusion of the custody hearing, the court may order the respondent or the child alleged to be neglected or abused, or both, to undergo appropriate diagnostic examinations or evaluations. If the court determines that probable cause does not exist, the court may order the respondent or the child alleged to be neglected or abused, or both, to undergo appropriate diagnostic examinations or evaluations as necessary to protect the child's best interests, based upon the allegations in the petition and the evidence presented at the custody hearing. Copies of any diagnostic or evaluation reports ordered by the court shall be provided to the parties at least five days before the adjudicatory hearing is scheduled. The reports shall not be sent to the court.

H. The Rules of Evidence shall not apply to custody hearings.

I. Notwithstanding any other provision of law, a party aggrieved by an order entered pursuant to this section shall be permitted to file an immediate appeal as a matter of right. If the order appealed from grants the legal custody of the child to or withholds it from one or more of the parties to the appeal, the appeal shall be expedited and shall be heard at the earliest practicable time. While an appeal pursuant to this section is pending, the court shall have jurisdiction to take further action in the case pursuant to Subsection B of Section 32A-1-17 NMSA 1978."

SECTION 10. A new section of the Abuse and Neglect Act, Section 32A-4-18.1 NMSA 1978, is enacted to read:

"32A-4-18.1. [NEW MATERIAL] POST-PETITION REMOVAL HEARING.--

A. A child who is subject to an abuse or neglect petition, but who is not in the department's custody, may be removed by the department for the reasons and in the manner described in Section 32A-4-6 NMSA 1978.

B. Pursuant to Subsection A of this section, a hearing shall be held within seven days of the removal to determine if the child should remain in the department's custody. Upon written request of the respondent, the hearing may be held earlier, but in no event shall the hearing be held sooner than two days after the removal.

C. At a removal hearing held before the child is adjudicated as abused or neglected, the court shall return legal custody of the child to the child's parent, guardian or custodian unless probable cause exists to believe that:

(1) the child is suffering from a serious illness or injury, and the parent, guardian or custodian is not providing adequate care for the child;

(2) the child is in immediate danger from the child's surroundings, and removal from those surroundings is necessary for the child's safety or well-being;

(3) the child will be subject to injury by others if not placed in the custody of the department;

(4) there has been an abandonment of the child by the child's parent, guardian or custodian; or

(5) the parent, guardian or custodian left the child without adequate supervision or an adequate plan for support and care.

D. At a removal hearing held after the child is adjudicated as abused or neglected, the court shall return legal custody of the child to the child's parent, guardian or custodian unless a preponderance of the evidence exists to believe that one of the conditions of Subsection C of this section exists.

E. At the conclusion of the removal hearing, if the court determines that probable cause exists pursuant to Subsection C of this section or that a preponderance of the evidence exists pursuant to Subsection D of this section, the court may:

(2) award legal custody of the child to the department.

F. At the conclusion of the removal hearing, if the court determines that probable cause does not exist pursuant to Subsection C of this section or that a preponderance of the evidence does not exist pursuant to Subsection D of this section, the court shall:

(1) retain jurisdiction and, unless the court permits otherwise, order that the respondent and child remain in the jurisdiction of the court;

(2) return legal custody of the child to the child's parent, guardian or custodian with conditions to provide for the safety and well-being of the child; and

(3) order the child's parent, guardian or custodian to allow the child necessary contact with the child's guardian ad litem or attorney.

G. The Rules of Evidence shall not apply to removal hearings.

H. Notwithstanding any other provision of law, a party aggrieved by an order entered pursuant to this section shall be permitted to file an immediate appeal as a matter of right. If the order appealed from grants the legal custody of the child to or withholds it from one or more of the parties to the appeal, the appeal shall be expedited and shall be heard at the earliest practicable time. While an appeal pursuant to this section is pending, the court shall have jurisdiction to take further action in the case pursuant to Subsection B of Section 32A-1-17 NMSA 1978."

SECTION 11. REPEAL.--Sections 32A-4-7 and 32A-4-16 NMSA 1978 (being Laws 1993, Chapter 77, Sections 101 and 110, as amended) are repealed.

SECTION 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2024.

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