SENATE HEALTH AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
SENATE BILL 242
55th legislature - STATE OF NEW MEXICO - first session, 2021
AN ACT
RELATING TO CITIZEN SUBSTITUTE CARE REVIEW; PROVIDING FOR SUBMISSION, REVIEW AND RESOLUTION OF GRIEVANCES AGAINST THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT PERTAINING TO SUBSTITUTE CARE; DEFINING TERMS IN THE CITIZEN SUBSTITUTE CARE REVIEW ACT; PROVIDING FOR STAFFING OF THE SUBSTITUTE CARE ADVISORY COUNCIL; PROVIDING FOR RULES PERTAINING TO VOLUNTEER MEMBERS; PROVIDING ACCESS TO AND REQUIREMENTS FOR CONFIDENTIALITY OF CERTAIN RECORDS AND INFORMATION; CHANGING REPORTING REQUIREMENTS; 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-4-33 NMSA 1978 (being Laws 1993, Chapter 77, Section 127, as amended) is amended to read:
"32A-4-33. CONFIDENTIALITY--RECORDS--PENALTY.--
A. All records or 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 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.
B. The records described in Subsection A of this section shall be disclosed only 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] a member of the substitute care advisory council, a member of its staff or a member of a board pursuant to the requirements of the Citizen Substitute Care Review Act, if the records are requested for the purpose of carrying out the provisions of the Citizen Substitute Care Review Act;
(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 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) those persons or entities of an Indian tribe specifically authorized to inspect the records pursuant to the federal Indian Child Welfare Act of 1978 or any regulations promulgated thereunder;
(11) 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;
(12) school personnel involved with the child if the records concern the child's social or educational needs;
(13) a grandparent, parent of a sibling, relative or fictive kin, if the records or information pertain to a child being considered for placement with that grandparent, parent of a sibling, relative or fictive kin and the records or information concern the social, medical, psychological or educational needs of the child;
(14) 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;
(15) 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;
(16) children's safehouse organizations conducting investigatory interviews of children on behalf of a law enforcement agency or the department;
(17) 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;
(18) any 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
(19) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court.
C. 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. 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 information the department finds would be likely to endanger the life or safety of any person providing information to the department.
D. Whoever intentionally and unlawfully releases any information or records closed to the public pursuant to the Abuse and Neglect Act or releases or makes other unlawful use of records in violation of that act is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.
E. The department shall promulgate rules for implementing disclosure of records pursuant to this section and in compliance with state and federal law and the Children's Court Rules."
SECTION 2. Section 32A-8-2 NMSA 1978 (being Laws 1993, Chapter 77, Section 204, as amended) is amended to read:
"32A-8-2. PURPOSE OF ACT.--The purpose of the Citizen Substitute Care Review Act is to provide a permanent system for independent and objective monitoring [of children placed in the custody] of the department by examining the policies, procedures and practices of the department [and, where appropriate, specific cases] to evaluate [the extent to which the department is effectively] its effectiveness in discharging its child protection responsibilities and to meet federal requirements for citizen review panels under the federal Child Abuse Prevention and Treatment Act."
SECTION 3. A new section of the Citizen Substitute Care Review Act is enacted to read:
"[NEW MATERIAL] DEFINITIONS.--As used in the Citizen Substitute Care Review Act:
A. "board" means a substitute care review board of volunteer members facilitated by council staff convened for the purpose of reviews of designated cases or other related activities deemed appropriate by the council;
B. "case" means an abuse or neglect case referred to the department;
C. "council" means the substitute care advisory council;
D. "department" means the children, youth and families department or its agent or contractor;
E. "grievance" means a complaint received by council staff:
(1) of any action or inaction that may or has adversely affected the health, safety, welfare or rights of an identified child or identified adult; or
(2) of the failure of the department to comply with the law or department policies;
F. "identified adult" means an adult participating in the fostering connections program or that program's successor;
G. "identified child" means a child who is:
(1) the subject of a referral of abuse and neglect made to the department;
(2) receiving services from the department; or
(3) in the custody of the department due to abuse and neglect proceedings;
H. "public member" means an individual who has been appointed by the governor;
I. "substitute care" means custodial or residential care for an identified child that is ordered or otherwise sanctioned by the court and in which the child does not live with either of the child's birth parents. "Substitute care" includes foster care, kinship care or care within a group home, residential treatment center, juvenile justice facility, semi-independent living program or emergency shelter; and
J. "volunteer member" means an individual who has met eligibility requirements to perform volunteer services for the council."
SECTION 4. Section 32A-8-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 206, as amended) is amended to read:
"32A-8-4. SUBSTITUTE CARE ADVISORY COUNCIL--MEMBERS--COMPENSATION--RESPONSIBILITIES--ADVISORY COMMITTEE.--
A. The "substitute care advisory council" is created and, in accordance with the provisions of Section 9-1-7 NMSA 1978, is administratively attached to the regulation and licensing department. [The general purpose of the council is to oversee substitute care review boards in their monitoring of children placed in the custody of the children, youth and families department to identify systemic policy issues regarding substitute care.] The council shall exercise its functions independently and not under the control of the department or the regulation and licensing department. The council shall be composed of [nine persons] ten voting members, including:
(1) the secretary of public education or the secretary's designee;
(2) the secretary of human services or the secretary's designee;
(3) the secretary of finance and administration or the secretary's designee;
(4) the secretary of health or the secretary's designee;
[(5) two public members, appointed by the governor, who:
(a) are at least eighteen and no more than thirty years of age at the time of appointment; and
(b) were previously placed in substitute care;
(6) two public members, appointed by the governor, who have expertise in the area of child welfare; and]
(5) the secretary of early childhood education and care or the secretary's designee;
[(7)] (6) one children's court judge, appointed by the governor; and
(7) four public members, two of whom have expertise in the area of child welfare and two of whom have had experience in abuse and neglect proceedings, including former foster youth, biological parents, foster parents and adoptive parents.
B. [The council may hire staff and contract for services to carry out the purposes of the Citizen Subs