SENATE BILL 315
56th legislature - STATE OF NEW MEXICO - first session, 2023
Gerald Ortiz y Pino
RELATING TO CHILDREN; ENACTING THE REVISED INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 32A-11-1 NMSA 1978 (being Laws 1977, Chapter 151, Section 1) is repealed and a new Section 32A-11-1 NMSA 1978 is enacted to read:
"32A-11-1. [NEW MATERIAL] INTERSTATE COMPACT.--The Revised Interstate Compact on the Placement of Children is hereby enacted into law and entered into with all other jurisdictions legally joining therein in form substantially as follows:
REVISED INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN
ARTICLE 1. PURPOSE
The purpose of the Revised Interstate Compact for the Placement of Children is to:
A. provide a process through which children subject to this compact are placed in safe and suitable homes in a timely manner;
B. facilitate ongoing supervision of a placement, the delivery of services and communication between the states;
C. provide operating procedures that will ensure that children are placed in safe and suitable homes in a timely manner;
D. provide for the promulgation and enforcement of administrative rules implementing the provisions of this compact and regulating the covered activities of the member states;
E. provide for uniform data collection and information sharing between member states under this compact;
F. promote coordination between this compact, the Interstate Compact for Juveniles, the Interstate Compact on Adoption and Medical Assistance and other compacts affecting the placement of and which provide services to children otherwise subject to this compact;
G. provide for a state's continuing legal jurisdiction and responsibility for placement and care of a child that it would have had if the placement were intrastate; and
H. provide for the promulgation of guidelines, in collaboration with Indian nations, tribes and pueblos, for interstate cases involving Indian children as is or may be permitted by federal law.
ARTICLE 2. DEFINITIONS
As used in this compact:
A. "approved placement" means the public child placing agency in the receiving state has determined that the placement is both safe and suitable for the child;
B. "assessment" means an evaluation of a prospective placement by a public child placing agency in the receiving state to determine if the placement meets the individualized needs of the child, including but not limited to the child's safety and stability, health and well-being and mental, emotional and physical development. An assessment is only applicable to a placement by a public child placing agency;
C. "child" means an individual who has not attained the age of eighteen;
D. "certification" means to attest, declare or swear to before a judge or notary public;
E. "default" means the failure of a member state to perform the obligations or responsibilities imposed upon it by this compact, the bylaws or rules of the interstate commission;
F. "home study" means an evaluation of a home environment conducted in accordance with the applicable requirements of the state in which the home is located, and documents the preparation and the suitability of the placement resource for the placement of a child in accordance with the laws and requirements of the state in which the home is located;
G. "Indian nations, tribes and pueblos" means any Indian tribe, band, nation, pueblo or other organized group or community of Indians recognized as eligible for services provided to Indians by the United States secretary of the interior because of their status as Indians, including any Alaskan native village as defined in section 3 (c) of the Alaska Native Claims Settlement Act at 43 U.S.C. Section 1602(c);
H. "interstate commission for the placement of children" means the commission that is created under Article 8 of this compact and that is generally referred to as the "interstate commission";
I. "jurisdiction" means the power and authority of a court to hear and decide matters;
J. "legal risk placement" or "legal risk adoption" means a placement made preliminary to an adoption where the prospective adoptive parents acknowledge in writing that a child can be ordered returned to the sending state or the birth mother's state of residence, if different from the sending state, and a final decree of adoption shall not be entered in any jurisdiction until all required consents are obtained or are dispensed with in accordance with applicable law;
K. "member state" means a state that has enacted this compact;
L. "noncustodial parent" means a person who, at the time of the commencement of court proceedings in the sending state, does not have sole legal custody of the child or has joint legal custody of a child and who is not the subject of allegations or findings of child abuse or neglect;
M. "nonmember state" means a state that has not enacted this compact;
N. "notice of residential placement" means information regarding a placement into a residential facility provided to the receiving state, including the name, date and place of birth of the child, the identity and address of the parent or legal guardian, evidence of authority to make the placement, and the name and address of the facility in which the child will be placed; "notice of residential placement" also includes information regarding a discharge and any unauthorized absence from the facility;
O. "placement" means the act by a public or private child placing agency intended to arrange for the care or custody of a child in another state;
P. "private child placing agency" means any private corporation, agency, foundation, institution or charitable organization, or any private person or attorney that facilitates, causes or is involved in the placement of a child from one state to another and that is not an instrumentality of the state or acting under color of state law;
Q. "provisional placement" means a determination made by the public child placing agency in the receiving state that the proposed placement is safe and suitable and, to the extent allowable, the receiving state has temporarily waived its standards or requirements otherwise applicable to prospective foster or adoptive parents so as to not delay the placement. Completion of the receiving state requirements regarding training for prospective foster or adoptive parents shall not delay an otherwise safe and suitable placement;
R. "public child placing agency" means any government child welfare agency or child protection agency or a private entity under contract with such an agency, regardless of whether they act on behalf of a state, county, municipality or other governmental unit and which facilitates, causes or is involved in the placement of a child from one state to another;
S. "receiving state" means the state to which a child is sent, brought or caused to be sent or brought;
T. "relative" means someone who is related to the child as a parent, step-parent, sibling by half or whole blood or by adoption, grandparent, aunt, uncle or first cousin or a non-relative with such significant ties to the child that they may be regarded as relatives as determined by the court in the sending state;
U. "residential facility" means a facility providing a level of care that is sufficient to substitute for parental responsibility or foster care, and is beyond what is needed for assessment or treatment of an acute condition. For purposes of the compact, "residential facilities" do not include institutions primarily educational in character, hospitals or other medical facilities;
V. "rule" means a written directive, mandate, standard or principle issued by the interstate commission promulgated pursuant to Article 9 of this compact that is of general applicability and that implements, interprets or prescribes a policy or provision of the compact; "rule" has the force and effect of an administrative rule in a member state, and includes the amendment, repeal or suspension of an existing rule;
W. "sending state" means the state from which the placement of a child is initiated;
X. "service member's permanent duty station" means the military installation where an active duty armed services member is currently assigned and is physically located under competent orders that do not specify the duty as temporary;
Y. "service member's state of legal residence" means the state in which the active duty armed services member is considered a resident for tax and voting purposes;
Z. "state" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Northern Mariana Islands and any other territory of the United States;
AA. "state court" means a judicial body of a state that is vested by law with responsibility for adjudicating cases involving abuse, neglect, deprivation, delinquency or status offenses of individuals who have not attained the age of eighteen; and
BB. "supervision" means monitoring provided by the receiving state once a child has been placed in a receiving state pursuant to this compact.
ARTICLE 3. APPLICABILITY
A. Except as otherwise provided in Section B of this article, this compact shall apply to:
(1) the interstate placement of a child subject to ongoing court jurisdiction in the sending state, due to allegations or findings that the child has been abused, neglected or deprived as defined by the laws of the sending state; provided however, that the placement of such a child into a residential facility shall only require notice of residential placement to the receiving state prior to placement;
(2) the interstate placement of a child adjudicated delinquent or unmanageable based on the laws of the sending state and subject to ongoing court jurisdiction of the sending state if:
(a) the child is being placed in a residential facility in another member state and is not covered under another compact; or
(b) the child is being placed in another member state and the determination of safety and suitability of the placement and services required is not provided through another compact; and
(3) the interstate placement of any child by a public child placing agency or private child placing agency as defined in this compact as a preliminary step to a possible adoption.
B. The provisions of this compact shall not apply to:
(1) the interstate placement of a child in a custody proceeding in which a public child placing agency is not a party; provided that the placement is not intended to effectuate an adoption;
(2) the interstate placement of a child with a non-relative in a receiving state by a parent with the legal authority to make such a placement; provided, however, that the placement is not intended to effectuate an adoption;
(3) the interstate placement of a child by one relative with the lawful authority to make such a placement directly with a relative in a receiving state;
(4) the placement of a child, not subject to Section A of this article into a residential facility by the child's parent;
(5) the placement of a child with a noncustodial parent; provided that:
(a) the noncustodial parent proves to the satisfaction of a court in the sending state a substantial relationship with the child;
(b) the court in the sending state makes a written finding that placement with the noncustodial parent is in the best interests of the child; and
(c) the court in the sending state dismisses its jurisdiction in interstate placements in which the public child placing agency is a party to the proceeding;
(6) a child entering the United States from a foreign country for the purpose of adoption or leaving the United States to go to a foreign country for the purpose of adoption in that country;
(7) cases in which a United States citizen child living overseas with the child's family, at least one of whom is in the United States armed services and who is stationed overseas, is removed and placed in a state; and
(8) the sending of a child by a public child placing agency or a private child placing agency for a visit as defined by the rules of the interstate commission.
C. For purposes of determining the applicability of this compact to the placement of a child with a family in the armed services, the public child placing agency or private child placing agency may choose the state of the service member's permanent duty station or the service member's declared legal residence.
D. Nothing in this compact shall be construed to prohibit the concurrent application of the provisions of this compact with other applicable interstate compacts, including the Interstate Compact for Juveniles and the Interstate Compact on Adoption and Medical Assistance. The interstate commission may in cooperation with other interstate compact commissions having responsibility for the interstate movement, placement or transfer of children, promulgate like rules to ensure the coordination of services, timely placement of children and the reduction of unnecessary or duplicative administrative or procedural requirements.
ARTICLE 4. JURISDICTION
A. Except as provided in Section H of Article 4 and Paragraphs (2) and (3) of Section B of Article 5 concerning private and independent adoptions, and in interstate placements in which the public child placing agency is not a party to a custody proceeding, the sending state shall retain jurisdiction over a child with respect to all matters of custody and disposition of the child that it would have had if the child had remained in the sending state. Such jurisdiction shall also include the power to order the return of the child to the sending state.
B. When an issue of child protection or custody is brought before a court in the receiving state, the court shall confer with the court of the sending state to determine the most appropriate forum for adjudication.
C. In cases that are before courts and subject to this compact, the taking of testimony for hearings before any judicial officer may occur in person or by telephone, audio-video conference or such other means as approved by the rules of the interstate commission; and judicial officers may communicate with other judicial officers and persons involved in the interstate process as may be permitted by their canons of judicial conduct and any rules promulgated by the interstate commission.
D. In accordance with its own laws, the court in the sending state shall have authority to terminate its jurisdiction if:
(1) the child is reunified with the parent in the receiving state who is the subject of allegations or findings of abuse or neglect, only with the concurrence of the public child placing agency in the receiving state;
(2) the child is adopted;
(3) the child reaches the age of majority under the laws of the sending state;
(4) the child achieves legal independence pursuant to the laws of the sending state;
(5) a guardianship is created by a court in the receiving state with the concurrence of the court in the sending state;
(6) an Indian tribe has petitioned for and received jurisdiction from the court in the sending state; or
(7) the public child placing agency of the sending state requests termination and has obtained the concurrence of the public child placing agency in the receiving the state.
E. When a sending state court terminates its jurisdiction, the receiving state child placing agency shall be notified.
F. Nothing in this article shall defeat a claim of jurisdiction by a receiving state court sufficient to deal with an act of truancy, delinquency, crime or behavior involving a child as defined by the laws of the receiving state committed by the child in the receiving state which would be a violation of its laws.
G. Nothing in this article shall limit the receiving state's ability to take emergency jurisdiction for the protection of the child.
H. The substantive laws of the state in which an adoption will be finalized shall solely govern all issues relating to the adoption of the child and the court in which the adoption proceeding is filed shall have subject matter jurisdiction regarding all substantive issues relating to the adoption, except:
(1) when the child is a ward of another court that established jurisdiction over the child prior to the placement;
(2) when the child is in the legal custody of a public agency in the sending state; or
(3) when a court in the sending state has otherwise appropriately assumed jurisdiction over the child, prior to the submission of the request for approval of placement.
I. A final decree of adoption shall not be entered in any jurisdiction until the placement is authorized as an "approved placement" by the public child placing agency in the receiving state.
ARTICLE 5. PLACEMENT EVALUATION
A. Prior to sending, bringing or causing a child to be sent or brought into a receiving state, the public child placing agency shall provide a written request for assessment to the receiving state.
B. For placements by a private child placing agency, a child may be sent or brought, or caused to be sent or brought, into a receiving state, upon receipt and immediate review of the required content in a request for approval of a placement in both the sending and receiving state public child placing agency. The required content to accompany a request for approval shall include all of the following:
(1) a request for approval identifying the child, the birth parent(s), the prospective adoptive parent(s) and the supervising agency, signed by the person requesting approval;
(2) the appropriate consents or relinquishments signed by the birth parents in accordance with the laws of the sending state, or where permitted by the laws of the state where the adoption will be finalized;
(3) certification by a licensed attorney or authorized agent of a private adoption agency that the consent or relinquishment is in compliance with the applicable laws of the sending state, or where permitted by the laws of the state where finalization of the adoption will occur;
(4) a home study; and
(5) an acknowledgment of legal risk signed by the prospective adoptive parents.
C. The sending state and the receiving state may request additional information or documents prior to finalization of an approved placement, but they may not delay travel by the prospective adoptive parents with the child if the required content for approval has been submitted, received and reviewed by the public child placing agency in both the sending state and the receiving state.
D. Approval from the public child placing agency in the receiving state for a provisional or approved placement is required as provided for in the rules of the interstate commission.
E. The procedures for making and the request for an assessment shall contain all information and be in a form as provided for in the rules of the interstate commission.
F. Upon receipt of a request from the public child placing agency of the sending state, the receiving state shall initiate an assessment of the proposed placement to determine its safety and suitability. If the proposed placement is a placement with a relative, the public child placing agency of the sending state may request a determination for a provisional placement.
G. The public child placing agency in the receiving state may request from the public child placing agency or the private child placing agency in the sending state, and shall be entitled to receive, supporting or additional information necessary to complete the assessment or approve the placement.
H. The public child placing agency in the receiving state shall approve a provisional placement and complete or arrange for the completion of the assessment within the time frames established by the rules of the interstate commission.
I. For a placement by a private child placing agency, the sending state shall not impose any additional requirements to complete the home study that are not required by the receiving state, unless the adoption is finalized in the sending state.
J. The interstate commission may develop uniform standards for the assessment of the safety and suitability of interstate placements.
ARTICLE 6. PLACEMENT AUTHORITY
A. Except as otherwise provided in this compact, no child subject to this compact shall be placed into a receiving state until approval for such placement is obtained.
B. If the public child placing agency in the receiving state does not approve the proposed placement, then the child shall not be placed. The receiving state shall provide written documentation of any such determination in accordance with the rules promulgated by the interstate commission. Such determination is not subject to judicial review in the sending state.
C. If the proposed placement is not approved, any interested party shall have standing to seek an administrative review of the receiving state's determination;
(1) the administrative review and any further judicial review associated with the determination shall be conducted in the receiving state pursuant to its applicable administrative procedures act; and
(2) if a determination not to approve the placement of the child in the receiving state is overturned upon review, the placement shall be deemed approved; provided, however, that all administrative or judicial remedies have been exhausted or the time for such remedies has passed.
ARTICLE 7. PLACING AGENCY RESPONSIBILITY
A. For the interstate placement of a child made by a public child placing agency or state court:
(1) the public child placing agency in the sending state shall have financial responsibility for:
(a) the ongoing support and maintenance for the child during the period of the placement, unless otherwise provided for in the receiving state; and
(b) as determined by the public child placing agency in the sending state, services for the child beyond the public services for which the child is eligible in the receiving state;
(2) the receiving state shall only have financial responsibility for:
(a) any assessment conducted by the receiving state; and
(b) supervision conducted by the receiving state at the level necessary to support the placement as agreed upon by the public child placing agencies of the receiving and sending state; and
(3) nothing in this provision shall prohibit public child placing agencies in the sending state from entering into agreements with licensed agencies or persons in the receiving state to conduct assessments and provide supervision.
B. For the placement of a child by a private child placing agency preliminary to a possible adoption, the private child placing agency shall be:
(1) legally responsible for the child during the period of placement as provided for in the law of the sending state until the finalization of the adoption; and
(2) financially responsible for the child absent a contractual agreement to the contrary.
C. The public child placing agency in the receiving state shall provide timely assessments, as provided for in the rules of the interstate commission.
D. The public child placing agency in the receiving state shall provide, or arrange for the provision of, supervision and services for the child, including timely reports, during the period of the placement.
E. Nothing in this compact shall be construed as to limit the authority of the public child placing agency in the receiving state from contracting with a licensed agency or person in the receiving state for an assessment or the provision of supervision or services for the child or otherwise authorizing the provision of supervision or services by a licensed agency during the period of placement.
F. Each member state shall provide for coordination among its branches of government concerning the state's participation in, and compliance with, the compact and interstate commission activities through the creation of an advisory council or use of an existing body or board.
G. Each member state shall establish a central state compact office that shall be responsible for state compliance with the compact and the rules of the interstate commission.
H. The public child placing agency in the sending state shall oversee compliance with the provisions of the federal Indian Child Welfare Act (25 U.S.C. Section 1901, et seq.) for placements subject to the provisions of this compact, prior to placement.
I. With the consent of the interstate commission, states may enter into limited agreements that facilitate the timely assessment and provision of services and supervision of placements under this compact.
ARTICLE 8. INTERSTATE COMMISSION FOR THE PLACEMENT OF CHILDREN
The member states hereby establish, by way of this compact, a commission known as the "interstate commission for the placement of children". The activities of the interstate commission are the formation of public policy and are a discretionary state function. The interstate commission shall:
A. be a joint commission of the member states and shall have the responsibilities, powers and duties set forth herein, and such additional powers as may be conferred upon it by subsequent concurrent action of the respective legislatures of the member states;
B. consist of one commissioner from each member state who shall be appointed by the executive head of the state human services administration with ultimate responsibility for the child welfare program. The appointed commissioner shall have the legal authority to vote on policy related matters governed by this compact binding the state;
(1) each member state represented at a meeting of the interstate commission is entitled to one vote;
(2) a majority of the member states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the interstate commission;
(3) a representative shall not delegate a vote to another member state; and
(4) a representative may delegate voting authority to another person from the representative's state for a specified meeting;
C. in addition to the commissioners of each member state, the interstate commission shall include persons who are members of interested organizations as defined in the bylaws or rules of the interstate commission. Such members shall be ex officio and shall not be entitled to vote on any matter before the interstate commission; and
D. establish an executive committee that shall have the authority to administer the day-to-day operations and administration of the interstate commission. The executive committee shall not have the power to engage in rulemaking.
ARTICLE 9. POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The interstate commission shall have the following powers:
A. to promulgate rules and take all necessary actions to effect the goals, purposes and obligations as enumerated in this compact;
B. to provide for dispute resolution among member states;
C. to issue, upon request of a member state, advisory opinions concerning the meaning or interpretation of the Revised Interstate Compact on the Placement of Children or the commission's bylaws, rules or actions;
D. to enforce compliance with this compact or the bylaws or rules of the interstate commission pursuant to Article 12;
E. collect standardized data concerning the interstate placement of children subject to this compact as directed through its rules, which shall specify the data to be collected, the means of collection and data exchange and reporting requirements;
F. to establish and maintain offices as may be necessary for the transacting of its business;
G. to purchase and maintain insurance and bonds;
H. to hire or contract for services of personnel or consultants as necessary to carry out its functions under this compact and establish personnel qualification policies and rates of compensation;
I. to establish and appoint committees and officers, including an executive committee as required by Article 10;
J. to accept any and all donations and grants of money, equipment, supplies, materials and services, and to receive, utilize and dispose thereof;
K. to lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal or mixed;
L. to sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed;
M. to establish a budget and make expenditures;
N. to adopt a seal and bylaws governing the management and operation of the interstate commission;
O. to report annually to the legislatures, governors, the judiciary and state advisory councils of the member states concerning the activities of the interstate commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the interstate commission;
P. to coordinate and provide education, training and public awareness regarding the interstate movement of children for officials involved in such activity;
Q. to maintain books and records in accordance with the bylaws of the interstate commission; and
R. to perform such functions as may be necessary or appropriate to achieve the purposes of this compact.
ARTICLE 10. ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION
(1) within twelve months after the first interstate commission meeting, the interstate commission shall adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of this compact; and
(2) the interstate commission's bylaws and rules shall establish conditions and procedures under which the interstate commission shall make its information and official records available to the public for inspection or copying. The interstate commission may exempt from disclosure information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.
(1) the interstate commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the member states, shall call additional meetings;
(2) public notice shall be given by the interstate commission of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in this compact. The interstate commission and its committees may close a meeting, or portion thereof, where it determines by a two-thirds' vote that an open meeting would be likely to:
(a) relate solely to the interstate commission's internal personnel practices and procedures;
(b) disclose matters specifically exempted from disclosure by federal law;
(c) disclose financial or commercial information that is privileged, proprietary or confidential in nature;
(d) involve accusing a person of a crime or formally censuring a person;
(e) disclose information of a personal nature when disclosure would constitute a clearly unwarranted invasion of personal privacy or physically endanger one or more persons;
(f) disclose investigative records compiled for law enforcement purposes; or
(g) specifically relate to the interstate commission's participation in a civil action or other legal proceeding;
(3) for a meeting, or portion of a meeting, closed pursuant to this provision, the interstate commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exemption provision. The interstate commission shall keep minutes that shall fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed and the record of a roll call vote. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the interstate commission or by court order; and
(4) the bylaws may provide for meetings of the interstate commission to be conducted by telecommunication or other electronic communication.
C. Officers and Staff:
(1) the interstate commission may, through its executive committee, appoint or retain a staff director for such period, upon such terms and conditions and for such compensation as the interstate commission may deem appropriate. The staff director shall serve as secretary to the interstate commission, but shall not have a vote. The staff director may hire and supervise such other staff as may be authorized by the interstate commission;
(2) the interstate commission shall elect, from among its members, a chairperson and a vice chairperson of the executive committee and other necessary officers, each of whom shall have such authority and duties as may be specified in the bylaws.
D. Qualified Immunity, Defense and Indemnification:
(1) the interstate commission's staff director and its employees shall be immune from suit and liability, either personally or in their official capacity, for a claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to an actual or alleged act, error or omission that occurred, or that a person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities; provided that such person shall not be protected from suit or liability for damage, loss, injury or liability caused by a criminal act or the intentional or willful and wanton misconduct of such person;
(a) the liability of the interstate commission's staff director and employees or interstate commission representatives, acting within the scope of the person's employment or duties for acts, errors or omissions occurring within the person's state may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees and agents. The interstate commission is considered to be an instrumentality of the states for the purposes of any such action. Nothing in this subparagraph shall be construed to protect such person from suit or liability for damage, loss, injury or liability caused by a criminal act or the intentional or willful and wanton misconduct of such person;
(b) the interstate commission shall defend the staff director and its employees and, subject to the approval of the attorney general or other appropriate legal counsel of the member state, shall defend the commissioner of a member state in a civil action seeking to impose liability arising out of an actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities; provided that the actual or alleged act, error or omission did not result from intentional or willful and wanton misconduct on the part of the person; and
(c) to the extent not covered by the state involved, member state or the interstate commission, the representatives or employees of the interstate commission shall be held harmless in the amount of a settlement or judgment, including attorney fees and costs, obtained against such persons arising out of an actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties or responsibilities; provided that the actual or alleged act, error or omission did not result from intentional or willful and wanton misconduct on the part of such persons.
ARTICLE 11. RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION
A. The interstate commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of this compact.
B. Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the "Model State Administrative Procedures Act," 1981 Act, Uniform Laws Annotated, Vol.215, p.1 (2000), or other administrative procedure acts that the interstate commission deems appropriate and consistent with due process requirements under the United States constitution as now or hereafter interpreted by the United States supreme court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the interstate commission.
C. When promulgating a rule, the interstate commission shall, at a minimum:
(1) publish the proposed rule's entire text stating the reason(s) for that proposed rule;
(2) allow and invite any and all persons to submit written data, facts, opinions and arguments, which information shall be added to the record, and be made publicly available; and
(3) promulgate a final rule and its effective date, if appropriate, based on input from state or local officials or interested parties.
D. Rules promulgated by the interstate commission shall have the force and effect of administrative rules and shall be binding in the compacting states to the extent and in the manner provided for in this compact.
E. Not later than sixty days after a rule is promulgated, an interested person may file a petition in the United States district court for the District of Columbia or in the federal district court where the interstate commission's principal office is located for judicial review of such rule. If the court finds that the interstate commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside.
F. If a majority of the legislatures of the member states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that such rule shall have no further force and effect in any member state.
G. The existing rules governing the operation of the Revised Interstate Compact on the Placement of Children superseded by this act shall be null and void no less than twelve, but no more than twenty-four months after the first meeting of the interstate commission created hereunder, as determined by the members during the first meeting.
H. Within the first twelve months of operation, the interstate commission shall promulgate rules addressing the following:
(1) transition rules;
(2) forms and procedures;
(3) time lines;
(4) data collection and reporting;
(7) progress reports and supervision;
(8) sharing of information and confidentiality;
(9) financing of the interstate commission;
(10) mediation, arbitration and dispute resolution;
(11) education, training and technical assistance;
(12) enforcement; and
(13) coordination with other interstate compacts.
I. Upon determination by a majority of the members of the interstate commission that an emergency exists:
(1) the interstate commission may promulgate an emergency rule only if it is required to:
(a) protect the children covered by this compact from an imminent threat to their health, safety and well-being;
(b) prevent loss of federal or state funds; or
(c) meet a deadline for the promulgation of an administrative rule required by federal law;
(2) an emergency rule shall become effective immediately upon adoption; provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, but no later than ninety days after the effective date of the emergency rule; and
(3) an emergency rule shall be promulgated as provided for in the rules of the interstate commission.
ARTICLE 12. OVERSIGHT, DISPUTE RESOLUTION, ENFORCEMENT
(1) the interstate commission shall oversee the administration and operation of this compact;
(2) the executive, legislative and judicial branches of state government in each member state shall enforce this compact and the rules of the interstate commission and shall take all actions necessary and appropriate to effectuate this compact's purposes and intent. This compact and its rules shall be binding in the compacting states to the extent and in the manner provided for in this compact;
(3) all courts shall take judicial notice of this compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact; and
(4) the interstate commission shall be entitled to receive service of process in any action in which the validity of a compact provision or rule is the issue for which a judicial determination has been sought and shall have standing to intervene in any proceedings. Failure to provide service of process to the interstate commission shall render any judgment, order or other determination, however so captioned or classified, void as to the interstate commission, this compact, its bylaws or rules of the interstate commission.
B. Dispute Resolution:
(1) the interstate commission shall attempt, upon the request of a member state, to resolve disputes that are subject to the compact and that may arise among member states and between member and non-member states; and
(2) the interstate commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among compacting states. The costs of such mediation or dispute resolution shall be the responsibility of the parties to the dispute.
(1) if the interstate commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact, its by laws or rules, the interstate commission may:
(a) provide remedial training and specific technical assistance;
(b) provide written notice to the defaulting state and other member states, of the nature of the default and the means of curing the default. The interstate commission shall specify the conditions by which the defaulting state must cure its default;
(c) by majority vote of the members, initiate against a defaulting member state legal action in the United States district court for the District of Columbia or, at the discretion of the interstate commission, in the federal district where the interstate commission has its principal office, to enforce compliance with the provisions of this compact, its bylaws or rules. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney fees; or
(d) avail itself of any other remedies available under state law or the regulation of official or professional conduct.
ARTICLE 13. FINANCING OF THE COMMISSION
A. The interstate commission shall pay, or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities.
B. The interstate commission may levy on and collect an annual assessment from each member state to cover the cost of the operations and activities of the interstate commission and its staff, which must be in a total amount sufficient to cover the interstate commission's annual budget as approved by its members each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the interstate commission, which shall promulgate a rule binding upon all member states.
C. The interstate commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same; nor shall the interstate commission pledge the credit of any of the member states, except by and with the authority of the member states.
D. The interstate commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the interstate commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the interstate commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be
included in and become part of the annual report of the interstate commission.
ARTICLE 14. MEMBER STATES, EFFECTIVE DATE AND AMENDMENT
A. Any state is eligible to become a member state.
B. This compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five states. The effective date shall be the later of July 1, 2007 or upon enactment of the compact into law by the thirty-fifth state. Thereafter, it shall become effective and binding as to any other member state upon enactment of the compact into law by that state. The executive heads of the state human services administration with ultimate responsibility for the child welfare program of non-member states or their designees shall be invited to participate in the activities of the interstate commission on a non-voting basis prior to adoption of this compact by all states.
C. The interstate commission may propose amendments to this compact for enactment by the member states. No amendment shall become effective and binding on the member states unless and until it is enacted into law by unanimous consent of the member states.
ARTICLE 15. WITHDRAWAL AND DISSOLUTION
(1) once effective, the compact shall continue in force and remain binding upon each and every member state; provided that a member state may withdraw from the compact specifically repealing the statute that enacted the compact into law;
(2) withdrawal from this compact shall be by the enactment of a statute repealing the same. The effective date of withdrawal shall be the effective date of the repeal of the statute;
(3) the withdrawing state shall immediately notify the president of the interstate commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The interstate commission shall then notify the other member states of the withdrawing state's intent to withdraw;
(4) the withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal; and
(5) reinstatement following withdrawal of a member state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the members of the interstate commission.
B. Dissolution of Compact:
(1) this compact shall dissolve effective upon the date of the withdrawal or default of the member state that reduces the membership in the compact to one member state;
(2) upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the interstate commission shall be concluded and surplus funds shall be distributed in accordance with the bylaws.
ARTICLE 16. SEVERABILITY AND CONSTRUCTION
A. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
B. The provisions of this compact shall be liberally construed to effectuate its purposes.
C. Nothing in this compact shall be construed to prohibit the concurrent applicability of other interstate compacts to which the states are members.
ARTICLE 17. BINDING EFFECT OF COMPACT AND OTHER LAWS
A. Other Laws:
(1) nothing herein prevents the enforcement of any other law of a member state that is not inconsistent with this compact.
B. Binding Effect of the Compact:
(1) all lawful actions of the interstate commission, including all rules and bylaws promulgated by the interstate commission, are binding upon the member states;
(2) all agreements between the interstate commission and the member states are binding in accordance with their terms; and
(3) in the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any member state, such provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.
ARTICLE 18. INDIAN NATIONS, TRIBES AND PUEBLOS
Notwithstanding any other provision in this compact, the interstate commission may promulgate guidelines to permit Indian nations, tribes and pueblos to utilize the compact to achieve any or all of the purposes of the compact as specified in Article 1. The interstate commission shall make reasonable efforts to consult with Indian nations, tribes and pueblos in promulgating guidelines to reflect the diverse circumstances of the various Indian nations, tribes and pueblos."
SECTION 2. Section 32A-11-2 NMSA 1978 (being Laws 1977, Chapter 151, Section 2) is amended to read:
"32A-11-2. FINANCIAL RESPONSIBILITY--DEFAULT IN
COMPACT.--Financial responsibility for any child placed pursuant to the provisions of the Revised Interstate Compact on the Placement of Children shall be determined in accordance with the provisions of Article [5 thereof] 7 and Article 12 of that compact in the first instance. However, in the event of partial or complete default of performance [thereunder] under that compact, the provisions of the New Mexico law fixing responsibility for the support of children also may be invoked."
SECTION 3. Section 32A-11-5 NMSA 1978 (being Laws 1977, Chapter 151, Section 5, as amended) is amended to read:
"32A-11-5. FINANCIAL COMMITMENT--APPROVAL.--The officers and agencies of the state and of its political subdivisions having authority to place children are hereby empowered to enter into agreements with appropriate officers or agencies of or in other party states pursuant to Paragraph [B of Article 5] (3) of Section A of Article 7 of the Revised Interstate Compact on the Placement of Children. Any such agreement [which] that contains a financial commitment or imposes a financial obligation on the state or political subdivision or agency thereof shall not be binding unless it has the approval in writing of the secretary of finance and administration and of the chief local fiscal officer in the case of a political subdivision of the state."
SECTION 4. Section 32A-11-6 NMSA 1978 (being Laws 1977, Chapter 151, Section 6) is amended to read:
"32A-11-6. COURT JURISDICTION IN PLACEMENT OF DELINQUENT CHILDREN.--Any court having jurisdiction to place delinquent children may place such a child in an institution in another state pursuant to Article  3 of the Revised Interstate Compact on the Placement of Children and shall retain jurisdiction as provided in Article [5 thereof] 4 of that compact."
SECTION 5. Section 32A-11-7 NMSA 1978 (being Laws 1977, Chapter 151, Section 7) is amended to read:
"32A-11-7. GOVERNOR.--As used in [Article 7] Article 8 of the Revised Interstate Compact on the Placement of Children, the term "executive head" means the governor. The governor is hereby authorized to appoint a compact administrator in accordance with the terms of [said Article 7] Article 8 of that compact."
SECTION 6. REPEAL.--Sections 32A-11-3 and 32A-11-4 NMSA 1978 (being Laws 1977, Chapter 151, Sections 3 and 4) are repealed.
SECTION 7. CONTINGENT EFFECTIVE DATE.--The provisions of this act shall become effective when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children as provided in Section B of Article 14 of the Revised Interstate Compact on the Placement of Children. The secretary of children, youth and families shall notify the governor, the executive director of the New Mexico compilation commission and the director of the legislative council service when the thirty-fifth state has enacted the Revised Interstate Compact on the Placement of Children.
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