HOUSE HEALTH AND HUMAN SERVICES COMMITTEE SUBSTITUTE FOR
HOUSE BILL 10
56th legislature - STATE OF NEW MEXICO - first session, 2023
AN ACT
RELATING TO THE CHILDREN'S CODE; SPECIFYING TO WHOM AND UNDER WHAT CIRCUMSTANCES INFORMATION THAT IS HELD BY THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT THAT PERTAINS TO CHILD ABUSE AND NEGLECT MAY BE SHARED; REQUIRING THAT INFORMATION BE PROVIDED ABOUT CHILD FATALITIES OR NEAR FATALITIES; PROTECTING PERSONAL IDENTIFIER INFORMATION OF DEPARTMENT CLIENTS; REQUIRING THE COURT'S WRITTEN ORDER WHEN EXCLUDING MEDIA FROM AN ABUSE OR NEGLECT PROCEEDING, WHICH IS APPEALABLE; REQUIRING REPORTS ON THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT'S WEBSITE; PRESCRIBING A PENALTY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 32A-4-20 NMSA 1978 (being Laws 1993, Chapter 77, Section 114, as amended) is amended to read:
"32A-4-20. CONDUCT OF HEARINGS--FINDINGS--DISMISSAL--DISPOSITIONAL MATTERS--ORDER EXCLUDING MEDIA APPEALABLE--PENALTY.--
A. The proceedings shall be recorded by stenographic notes or by electronic, mechanical or other appropriate means. The court docket number is a public record.
B. [All] Abuse and neglect hearings shall be closed to the general public.
C. Only the parties, their counsel, witnesses and other persons approved by the court may be present at a closed hearing. The foster parent, preadoptive parent or relative providing care for the child shall be given notice and an opportunity to be heard at the dispositional phase. Those other persons the court finds to have a proper interest in the case or in the work of the court may be admitted by the court to closed hearings on the condition that they refrain from divulging any information that would identify the child or family involved in the proceedings.
D. Accredited representatives of the news media shall be allowed to be present at closed hearings, [subject to] on the condition that they refrain from divulging information that would identify [any] the child involved in the proceedings or the [parent, guardian or] custodian of that child and subject to enabling [regulations] rules as the court finds necessary for the maintenance of order and decorum and for the furtherance of the purposes of the Children's Code. A child who is the subject of an abuse and neglect proceeding and is present at a hearing may object to the presence of the media. The court may exclude the media if it finds that the presence of the media is contrary to the best interests of the child. The judge shall submit a written order explaining the reasons for excluding the media from a hearing.
E. If the court finds that it is in the best interest of a child under fourteen years of age, the child may be excluded from a hearing under the Abuse and Neglect Act. A child fourteen years of age or older may be excluded from a hearing only if the court makes a finding that there is a compelling reason to exclude the child and states the factual basis for the finding.
F. Those persons or parties granted admission to a closed hearing who intentionally divulge information in violation of this section are guilty of a petty misdemeanor.
G. The court shall determine if the allegations of the petition are admitted or denied. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court, after hearing all of the evidence bearing on the allegations of neglect or abuse, shall make and record its findings on whether the child is a neglected child, an abused child or both. If the petition alleges that the parent, guardian or custodian has subjected the child to aggravated circumstances, then the court shall also make and record its findings on whether the aggravated circumstances have been proven.
H. If the court finds on the basis of a valid admission of the allegations of the petition or on the basis of clear and convincing evidence, competent, material and relevant in nature, that the child is neglected or abused, the court shall enter an order finding that the child is neglected or abused and may proceed immediately or at a postponed hearing to make disposition of the case. If the court does not find that the child is neglected or abused, the court shall dismiss the petition and may refer the family to the department for appropriate services.
I. A party aggrieved by an order entered pursuant to Subsection D or H of this section may file an immediate appeal to the court of appeals.
J. In that part of the hearings held under the Children's Code on dispositional issues, all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value even though not competent had it been offered during the part of the hearings on adjudicatory issues.
K. On the court's motion or that of a party, the court may continue the hearing on the petition for a period not to exceed thirty days to receive reports and other evidence in connection with disposition. The court shall continue the hearing pending the receipt of the predisposition study and report if that document has not been prepared and received. During any continuances under this subsection, the court shall make an appropriate order for legal custody."
SECTION 2. Section 32A-4-33 NMSA 1978 (being Laws 1993, Chapter 77, Section 127, as amended) is amended to read:
"32A-4-33. CONFIDENTIALITY--[RECORDS] INFORMATION--PENALTY.--
A. As used in the Abuse and Neglect Act, "personal identifier information" means the person's:
(1) name; and
(2) contact information, including home or business address, email address or phone number.
B. In investigations and proceedings alleging abuse or neglect, the department shall not disclose personal identifier information of the child or the child's parents except as follows:
(1) in the case of the death or near death of a child;
(2) in cases in which a child is missing or abducted or the child is or may be in danger of serious injury or death unless immediate action is taken or there are other exigent circumstances, the department shall release to law enforcement and the nationally recognized organization that serves as the national clearinghouse and resource center for information about missing and exploited children as much personal identifier information as necessary to identify the child, a possible abductor or a suspect in an abuse or neglect case or to protect evidence of a crime against the child;
(3) when the child or the child's parents have been publicly identified by a person outside the department; or
(4) to the persons enumerated in Subsection F of this section.
C. Department information obtained during the course of an investigation into allegations of abuse or neglect shall be maintained by the department as required by federal law as a condition of the allocation of federal funds in New Mexico. The public release of department information shall be construed as openly as possible under federal and state law.
D. Information released by the department that has not otherwise been publicly released by a person outside the department shall be redacted as needed to safeguard personal identifier information. In a case in which a child or the child's family has been publicly identified through press reports, a lawsuit or other means, the department may respond publicly with factual and complete information about the actions the department has taken in the case.
[A. All records or] E. Redacted information concerning a party to a neglect or abuse proceeding, including social records; diagnostic evaluations; psychiatric or psychological reports; videotapes, transcripts and audio recordings of a child's statement of abuse; [or] and medical reports incident to or obtained as a result of a neglect or abuse proceeding or that were produced or obtained during an investigation in anticipation of or incident to a neglect or abuse proceeding [shall be confidential and closed to the public] may be released by the department to a person who is conducting bona fide research, the results of which should provide the department information on child abuse and neglect that would be useful to the department in developing policy and practice.
[B.] F. The [records] information described in Subsection [A] E of this section shall be disclosed [only] without redaction to the parties and:
(1) court personnel and persons or entities authorized by contract with the court to review, inspect or otherwise have access to [records or] information in the court's possession;
(2) court-appointed special advocates appointed to the neglect or abuse proceeding;
(3) the child's guardian ad litem;
(4) the attorney representing the child in an abuse or neglect action, a delinquency action or any other action under the Children's Code;
(5) department personnel and persons or entities authorized by contract with the department to review, inspect or otherwise have access to [records or] information in the department's possession;
(6) any local substitute care review board or any agency contracted to implement local substitute care review boards;
(7) law enforcement officials, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978;
(8) district attorneys, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978;
(9) any state government or tribal government social services agency in any state or when, in the opinion of the department, it is in the best interest of the child, a governmental social services agency of another country;
(10) a foster parent, if the records are those of a child currently placed with that foster parent or of a child being considered for placement with that foster parent and the records concern the social, medical, psychological or educational needs of the child;
(11) school personnel involved with the child, but only if the [records concern] information concerns the child's social or educational needs;
(12) a grandparent, parent of a sibling, relative or fictive kin, if the [records or] information [pertain] pertains to a child being considered for placement with that grandparent, parent of a sibling, relative or fictive kin and the [records or] information [concern] concerns the social, medical, psychological or educational needs of the child;
(13) health care or mental health professionals involved in the evaluation or treatment of the child or of the child's parents, guardian, custodian or other family members;
(14) protection and advocacy representatives pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991;
(15) children's safehouse organizations conducting [investigatory] interviews of children on behalf of a law enforcement agency or the department;
(16) representatives of the federal government or their contractors authorized by federal statute or regulation to review, inspect, audit or otherwise have access to [records and] information pertaining to neglect or abuse proceedings;
(17) [any] a person [or entity] attending a meeting arranged by the department to discuss the safety, well-being and permanency of a child, when the parent or child, or parent or [legal] custodian on behalf of a child younger than fourteen years of age, has consented to the disclosure; [and]
(18) the office of the state medical investigator; and
[(18)] (19) any other person [or entity], by order of the court, having a legitimate interest in the case or the work of the court.
G. A party to a court proceeding relating to a department investigation into allegations of abuse or neglect may comment publicly as long as the party does not disclose the personal identifier information that is still confidential for the child or the child's parents.
[C.] H. A parent, guardian or [legal] custodian whose child has been the subject of an investigation of abuse or neglect where no petition has been filed shall have the right to inspect any medical report, psychological evaluation, law enforcement reports or other investigative or diagnostic evaluation; provided that any identifying information related to the reporting party or any other party providing information shall be deleted or redacted. The parent, guardian or [legal] custodian shall also have the right to the results of the investigation and the right to petition the court for full access to all department [records and] information except [those records and] that information the department finds woul