THE CHILDREN’S CODE REVISION TASK FORCE In 2004, Children Youth and Families Department contracted with the New Mexico Council on Crime and Delinquency to facilitate a task force to propose revisions to the Children’s Code.
Secretary Dale Bolson appointed the Task Force, which included judges, young people, attorneys, service providers, CASAs, advocates, Citizen Review Board members, Tribal representatives, representatives from Children Youth and Families Department, Department of Health, Public Education Department, Aging and Long Term Services Department, and others. Many more people provided input electronically.
The Task Force was co-chaired by Albuquerque Attorney Barry Williams and retired Children’s Court Judge Michael Martinez. Dave Schmidt, Director of the New Mexico Council on Crime And Delinquency, staffed the Task Force.
After meeting for five months, the Task Force made recommendations which resulted in the following bills being presented to the New Mexico Legislature: HB 955 School District Attendance Policies SB 91 CYFD Employee Criminal and Background Checks SB 225 Clarify Safe Haven For Infants Act SB 233 Children’s Code Revisions SB 242 Extend Temporary Placement of Children Times
ALL BILLS WERE PASSED BY THE LEGISLATURE AND SIGNED BY THE GOVERNOR Effective date for all bills except SB 242 was June 17, 2005. SB 242 contained an emergency clause and became effective on April 4, 2005.
The previous article 3A, “Families In Need Of Services,” provided for an elaborate scheme of assessment, referrals and evaluation of services for families. The scheme envisioned a collaborative process between CYFD, DOH and the schools. The article was qualified throughout with the term “based on available resources.”
The scheme was not funded or implemented. The revisions to this article provide for a simple referral process whereby CYFD, to the extent possible, assists children and families in accessing appropriate community services.
32A-3A-1. Purpose The language has been simplified to say that a child’s behavior may be symptomatic of the family’s need for services. The specific references to truancy, running away, and the inability of the child and parent to share a residence have been deleted. The language in subsection B has also been simplified to clarify that the focus is on “prevention, diversion, and intervention services” for the child or family.
32A-3A-3. Request for family services The provisions outlining the elaborate process that schools should follow before requesting services on behalf of a child or family have been eliminated.
32A-3A-4. Referral process The new provision eliminates the responsibilities of the state department of public education and the department of health. CYFD, “to the extent possible given the availability of resources,” shall design and implement a referral process to assist a child or family in accessing services.
32A-3A-7. Voluntary Placement – Time Limitation The maximum time frame for a child being placed voluntarily has been extended from 180 days to 360 days. After the first 180 days, the placement may be extended for an additional 180 days upon order of the court, “after the filing of a petition by the department for extension of voluntary placement, a hearing and a finding that additional voluntary placement is in the best interests of the child.”
32A-3A-7. Voluntary Placement – Time Limitation (continued) “In no event shall a child remain in voluntary placement for a period in excess of three hundred sixty-five days in any two-year period.”
Section 3. Emergency.--It is necessary for the public peace, health and safety that this act take effect immediately.
ARTICLE 3B: FAMILIES IN NEED OF COURT- ORDERED SERVICES
Several changes in article 3B provide additional safeguards for Indian children. The remaining changes are recommended to achieve consistency between article 3B and article 4.
32A-3B-4. Protective custody Changes have been made to subsections C and D to replace 48 hours with 2 days. This change makes article 3B consistent with article 4, in which the term 2 days, not 48 hours, is used to define the time limit for filing a petition.
32A-3B-5. Notification to family A provision has been added requiring the department to notify the child’s tribe if the child is not being released to the parent, guardian or custodian within two days.
32A-3B-7. Indian child placement; preferences The placement preferences for Indian children set forth in the federal Indian Child Welfare Act are incorporated into this article. This provision mirrors the one in 32A-4- 9. It operationalizes the provisions of 32A-3B-16 (11), which requires the court to make a finding as to whether the placement preferences of the Indian Child Welfare Act have been followed.
32A-3B-9?. Change in placement A provision is added requiring the department to give notice to the child’s tribe prior to changing the child’s placement.
32A-3B-14. Conduct of hearings Consistent with the change that is made in 32A-4-20, this change reflects the philosophy that youth should participate in decisions that impact their lives by attending court hearings. If a judge wishes to exclude a child 14 or older from a hearing, the court must make a finding that there is a compelling reason to exclude the child and state the factual basis for the finding.
32A-3B-17. Disposition of a child with a developmental disability or mental disorder Subsections D and E have been amended to reflect the long standing practice in parts of the state, where children’s mental health proceedings are conducted separately from the article 3B proceeding.
32A-3B-17. Disposition of a child with a developmental disability or mental disorder (continued) A provision has been added allowing the child to elect representation by the child’s attorney in the abuse and neglect proceeding or counsel appointed in the mental health proceeding. The same changes have been made to the companion section in 32A-4-23.
32A-3B-22?. Confidentiality The term “or information” has been added to clarify that records and the personal knowledge and information that was used to create those records are confidential.
32A-3B-22?. Confidentiality (continued) This section is clarified to provide that the records and information “incident to or obtained” as a result of a family in need of court-ordered services proceeding are confidential. Under current law, the only records included in the confidentiality clause are those in the possession of the department or the court. Records should be confidential regardless of possession.
32A-3B-23. Confidentiality (continued) The persons entitled to disclosure of records have been changed to include the parties (who are entitled to access pursuant to rules of discovery) and an attorney representing the child in an abuse or neglect action, a delinquency action or any other action.
32A-3B-23. Confidentiality (continued) A provision has been added requiring the department to promulgate regulations for implementing the disclosure of information provisions.
§ 9-2A-8. CYFD Employee Criminal Records Checks CYFD shall “fingerprint and conduct nationwide criminal history record searches [FBI fingerprint checks] on all department employees whose jobs involve direct contact with department clients, including prospective employees and employees who are promoted, transferred or hired into new positions.”
32A-15-3. Criminal records checks on child care facilities and programs 32A-15-3 already provided for nationwide criminal history record checks to be conducted on all operators, staff and employees and prospective operators, staff and employees of child care facilities, including every facility or program that has primary custody of children for twenty hours or more per week, and juvenile detention, correction or treatment facilities.
32A-15-3. Criminal records checks on child care facilities and programs (continued) Now nationwide criminal history record checks must also be conducted on all prospective foster or adoptive parents and other adult relatives and non- relatives residing in the prospective foster or adoptive parent’s household.
32A-15-3. Criminal records checks on child care facilities and programs (continued) The objective of conducting the record checks is “to protect the children involved and promote the children's safety and welfare while receiving service from the facilities and programs.”
24-22-1. PURPOSE A new purpose section is added which clarifies the intent of the act: “ To promote the safety of infants and to immunize a parent from criminal prosecution for leaving an infant, ninety days of age or less, at a hospital.” “This act is not intended to abridge the rights or obligations created by the federal Indian Child Welfare Act of 1978 or the rights of parents.”
24-22-3. LEAVING AN INFANT The amendment clarifies that the person leaving an infant at a hospital will not be subject to criminal prosecution. An abuse or neglect action under the children’s code could be filed.
24-22-4. HOSPITAL PROCEDURES A number of important changes are made in this section: Hospitals may offer the person leaving the infant information about private adoption services.
24-22-4. HOSPITAL PROCEDURES (continued) The section requires that the hospital “ask the person leaving the infant whether the infant has a parent who is either a member of an Indian tribe or is eligible for membership in an Indian tribe, but the person leaving the infant is not required to provide that information to the hospital.”
24-22-4. HOSPITAL PROCEDURES (continued) The hospital must “immediately” notify CYFD when an infant has been left at the hospital. The hospital is required to provide CYFD with “all available information regarding the child and the parents, including the identity of the child and the parents, the location of the parents and the child’s medical records.”
24-22-5. RESPONSIBILITIES OF THE CHILDREN, YOUTH, AND FAMILIES DEPARTMENT CYFD is required to make reasonable efforts to determine whether the child is an Indian child. If so, CYFD shall notify the tribe and follow the placement preferences required by the Indian Child Welfare Act.
24-22-6. CONFIDENTIALITY This section was repealed. It had provided that information regarding a person leaving an infant or information received during an abuse or neglect investigation was confidential pursuant to the Abuse and Neglect Act.
24-22-7. PROCEDURE IF REUNIFICATION IS SOUGHT The language stating that there shall be no presumption of abuse or neglect against a person seeking reunification within 30 days of the date the infant was left at the hospital has been deleted. A new provision is added that allows a parent not previously identified to come forward and participate in the abuse and neglect proceeding, if the person’s DNA indicates parentage of the infant.
22-8-2. Definitions, Public School Finance Act Withdrawals are not counted toward the current roll of a class or school on a specified day. The 2005 amendment provides that withdrawals do not include “truants and habitual truants the school district is required to intervene with and keep in an educational setting as provided in Section 22-12-9 NMSA 1978.”
22-12-9. Unexcused absences and truancy; attendance policies “Each school district shall maintain an attendance policy that: (1) provides for early identification of students with unexcused absences, truants and habitual truants and provides intervention strategies that focus on keeping truants in an educational setting and prohibit out-of-school suspension and expulsion as the punishment for truancy;
22-12-9. Unexcused absences and truancy; attendance policies (continued) (2) uses withdrawal as provided in section 22-8-2 NMSA 1978 only after exhausting efforts to keep students in educational settings; and (3) requires that class attendance be taken for every instructional day in every public school or school program in the school district.”
22-12-9. Unexcused absences and truancy; attendance policies (continued) “School districts shall report truancy and habitual truancy rates to the department in a form and at such times as the department determines and shall document efforts made to keep truants and habitual truants in educational settings.“