HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 145

55th legislature - STATE OF NEW MEXICO - second session, 2022

 

 

 

 

 

 

 

AN ACT

RELATING TO FAMILIES; ENACTING THE CHILD WELFARE OMBUDSMAN ACT; PROVIDING FOR THE CHIEF CHILD WELFARE OMBUDSMAN; CREATING THE CHILD WELFARE OMBUDSMAN OFFICE AND ESTABLISHING THE POWERS AND DUTIES OF THAT OFFICE; PROVIDING FOR THE ESTABLISHMENT OF THE CHIEF CHILD WELFARE OMBUDSMAN SELECTION COMMITTEE; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.

 

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

     SECTION 1. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] SHORT TITLE.--Sections 1 through 13 of this act may be cited as the "Child Welfare Ombudsman Act"."

     SECTION 2. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] DEFINITIONS.--As used in the Child Welfare Ombudsman Act:

          A. "committee" means the chief child welfare ombudsman selection committee;

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

          C. "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;

          D. "office" means the child welfare ombudsman office;

          E. "parent" 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; and

          F. "substitute caregiver" 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."

     SECTION 3. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] CHILD WELFARE OMBUDSMAN OFFICE--CREATED.--The "child welfare ombudsman office" is created and is administratively attached to the department of finance and administration pursuant to Section 9-1-7 NMSA 1978."

     SECTION 4. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] CHIEF CHILD WELFARE OMBUDSMAN--APPOINTMENT--DUTIES.--The head of the office is the "chief child welfare ombudsman", who shall be appointed for a term of six years, except that the initial term shall begin on July 1, 2023 and shall end on December 31, 2023. The chief child welfare ombudsman may be reappointed to successive terms. An appointed chief child welfare ombudsman shall serve and have all of the duties, responsibilities and authority of that office during the period of time prior to appointment of a new chief child welfare ombudsman. The governor may remove the chief child welfare ombudsman only for malfeasance, misfeasance or abuse of office. The chief child welfare ombudsman shall oversee the office and assign and distribute the work of the chief child welfare ombudsman."

     SECTION 5. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] CHIEF CHILD WELFARE OMBUDSMAN SELECTION COMMITTEE--DUTIES.--

          A. The "chief child welfare ombudsman selection committee" is created and consists of nine members, including:

                (1) one member who shall be selected by the president pro tempore of the senate;

                (2) one member who shall be selected by the minority floor leader of the senate;

                (3) one member who shall be selected by the speaker of the house of representatives;

                (4) one member who shall be selected by the minority floor leader of the house of representatives;

                (5) four members who shall be selected by the governor, no more than two of whom are from the same political party and one of whom shall have specialized expertise in the federal Indian Child Welfare Act of 1978 and related New Mexico laws and rules; and

                (6) a committee chair, whom a majority of the other eight members select and who is:

                     (a) not a candidate for the position of chief child welfare ombudsman; and

                     (b) a person with extensive knowledge of child protective or juvenile justice services.

          B. The committee shall meet exclusively for the purpose of nominating persons to fill a current or impending vacancy in the position of chief child welfare ombudsman. The committee shall actively solicit, accept and evaluate applications for the position of chief child welfare ombudsman and may require applicants to submit any information that the committee deems relevant to the consideration of applications. Within ninety days before the date on which the term of a chief child welfare ombudsman ends or no later than thirty days after the occurrence of a vacancy in the chief child welfare ombudsman position, the committee shall convene and, within thirty days after convening, submit to the governor the names of persons who are recommended for appointment to the position by a majority of the committee members.

          C. Immediately after receiving nominations for the chief child welfare ombudsman, the governor may make one request of the committee for submission of additional names. The committee shall promptly submit those additional names if a majority of the committee members find that additional persons would be qualified and recommends those persons for appointment as chief child welfare ombudsman. The governor shall fill a vacancy or appoint a successor to fill an impending vacancy in the office of chief child welfare ombudsman within thirty days after receiving final nominations from the committee by appointing one of the persons nominated by the committee.

          D. The committee is administratively attached to the department of finance and administration pursuant to the provisions of Section 9-1-7 NMSA 1978.

          E. After the initial meeting of the committee, the governor or a majority of the committee members may call subsequent meetings of the committee."

     SECTION 6. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] CHILD WELFARE OMBUDSMAN OFFICE--POWERS--DUTIES.--The office:

          A. shall:

                (1) review systemic issues in the department's provision of services to children and families, receive complaints concerning the actions of the department or of any entity that provides services to children and families through funds provided by the department and make appropriate referrals and investigate complaints when the child welfare ombudsman determines that a child or family may be in need of assistance from the office;

                (2) review current systems to determine the extent to which the system protects and enhances children's personal dignity, right to privacy, appropriate health care and education in accordance with state and federal law;

                (3) adopt and promulgate rules in accordance with the State Rules Act as are deemed necessary to carry out the provisions of the Child Welfare Ombudsman Act;

                (4) operate a toll-free hotline and electronic communication portal to receive complaints pursuant to this section;

                (5) investigate and attempt to resolve complaints made by or on behalf of children placed in the custody of the department, receiving services under the supervision of the department, subject to a referral to the department or under investigation by the department;

                (6) decide, in its discretion, whether to investigate a complaint or refer complaints to another agency for investigation;

                (7) upon rendering a decision to investigate a complaint, notify the complainant of the intention to investigate and, if the office declines to investigate a complaint or continue an investigation, notify the complainant of the reason for the action of the office;

                (8) update the complainant on the progress of the investigation and notify the complainant of the final outcome within a reasonable time frame;

                (9) work in collaboration with relevant parties to strengthen the department's services for children and families;

                (10) analyze and monitor the development and implementation of federal, state and local laws, regulations and policies relating to child and family welfare and recommend changes when appropriate;

                (11) support children and families by providing information about recipients' rights and responsibilities related to departmental services;

                (12) upon request, provide systemic information concerning child and family welfare to the governor, state agencies and legislators;

                (13) submit to the legislature and governor on or before December 1 of each year a report addressing services provided by the department, including:

                     (a) the quality of services provided to children and families;

                     (b) the conditions of placements for New Mexico's children, including the number of out-of-state placements and an assessment of each active congregate care and juvenile justice facility where children in the custody of the department are placed;

                     (c) the number of children removed from a residence of a parent, substitute caregiver or guardian;

                     (d) the number of children returned to a household from which they were removed;

                     (e) the number of children placed in the custody of a juvenile justice facility;

                     (f) the number of children placed in the custody of the department that have run away from a department placement, the number of children placed in the custody of the department that have been found after running away and the number of children placed in the custody of the department that are presently missing;

                     (g) the number of cases in which families subject to court-ordered treatment plans or voluntary placement agreements have absconded with children placed in the custody of the department;

                     (h) a review of systemic issues related to services for assistance to children and families within the child protection and juvenile justice systems;

                     (i) findings and recommendations related to the implementation of the federal Indian Child Welfare Act of 1978 and associated provisions of the Children's Code that pertain to the welfare of Indian children;

                     (j) recommendations related to improving services for children and families;

                     (k) data disaggregated by race, ethnicity, gender, geographic location, sexual identity, disability status and any other categories that the office deems necessary; and

                     (l) an outline of the training and certification process for the chief child welfare ombudsman and office staff;

                (14) address any challenges accessing information or records that are necessary for carrying out the provisions of the Child Welfare Ombudsman Act; and

                (15) in the course of investigating a complaint, have authority to request, access and review information, records or documents, including records of third parties, that the office deems necessary to conduct a thorough and independent review of a complaint so long as the department would be entitled to access or receive such information, records or documents; and

          B. may:

                (1) adopt and promulgate rules pertaining to the administration of the office and, subject to appropriation, hire and contract for such professional, technical and support staff as needed to carry out the functions of the office; provided that such hiring and contracting shall be without regard to party affiliation and solely on the grounds of competence and fitness to perform the duties of the position. Employees of the office, except the chief child welfare ombudsman, are subject to the provisions of the Personnel Act; and 

                (2) meet or communicate with any children placed in the custody of the department, receiving services under the supervision of the department, subject to a referral to the department or under investigation by the department."

     SECTION 7. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] TRAINING AND CERTIFICATION.--

          A. The chief child welfare ombudsman shall ensure that office staff are trained in:

                (1) federal, state, local and tribal laws, regulations and policies with respect to child protection and juvenile justice services in the state;

                (2) investigative techniques, including trauma-informed care and questioning;

                (3) the federal Indian Child Welfare Act of 1978, related New Mexico laws and rules, tribal culture, tribal relations and sovereign nation status;

                (4) department policies and procedures, including policies and procedures related to abuse and neglect, out-of-home placement and safety and risk assessments; and

                (5) such other matters as the office deems appropriate.

          B. The chief child welfare ombudsman shall develop procedures for the training and certification of appropriate staff.

          C. An officer, employee or other representative of the office shall not investigate any complaint filed with the office unless that person is certified by the office."

     SECTION 8. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] CONFLICT OF INTEREST.--Persons who are employees of the office or who have contracts with the office shall not have a conflict of interest with the department or with an entity that provides services to children and families through funds provided by the department relating to the performance of their responsibilities pursuant to the Children's Code. For the purposes of this section, a conflict of interest exists whenever the chief child welfare ombudsman, an employee of the office or a person having a contract with the office:

          A. has direct involvement in the licensing, certification or accreditation of a provider or facility delivering services to children and families;

          B. has a direct ownership interest in a provider or facility delivering services to children and families;

          C. is employed by or participates in the management of a provider or facility delivering services to children and families; or

          D. receives or has the right to receive, directly or indirectly, remuneration pursuant to a compensation arrangement with a provider or facility delivering services to children and families."

     SECTION 9. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] INCIDENTS AND FATALITIES.--

          A. The department shall provide the office with a copy of all reports related to actual physical injury to children in the custody of the department or a significant risk of such an injury.

          B. The department shall provide the office with a written notification within seventy-two hours of:

                (1) a fatality of a child in its custody or referred or receiving services under the supervision of the department; and

                (2) the restraint or seclusion of a child in its custody."

     SECTION 10. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] LAW ENFORCEMENT REPORTS.--Upon request by the office, law enforcement agencies shall share with the office all law enforcement reports involving children placed in the custody of the department, receiving services under the supervision of the department, subject to a referral to the department or under investigation by the department."

     SECTION 11. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] CONFIDENTIALITY OF INFORMATION.--

          A. The office shall maintain the confidentiality of all case records, third-party records and court records, as well as any information gathered in the course of investigations and system monitoring duties. These records are exempt from public inspection and copying pursuant to the Inspection of Public Records Act and shall be kept confidential unless:

                (1) disclosure is ordered by the court; or

                (2) disclosure is necessary to prevent imminent harm.

          B. Notwithstanding Subsection A of this section, the office may publicly report any patterns of conduct or repeated incidents identified by the office in carrying out the provisions of the Child Welfare Ombudsman Act; provided that the office shall not publicly disclose either of the following:

                (1) individually identifiable information about a child unless the information is already known to the public; and

                (2) investigation findings when there is pending law enforcement investigation or prosecution."

     SECTION 12. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] OTHER REMEDIES.--An individual who pursues remedies pursuant to the Child Welfare Ombudsman Act is not precluded from pursuing other legal or equitable remedies."

     SECTION 13. A new section of the Children's Code is enacted to read:

     "[NEW MATERIAL] NOTIFICATION OF OMBUDSMAN OFFICE.--The department shall notify all children placed in the custody of the department, receiving services under the supervision of the department, subject to a referral to the department or under investigation by the department and their parents, guardians, substitute caregivers and fictive kin of the existence of the office, its purpose and function and its toll-free hotline and electronic communication portal with instructions for access."

     SECTION 14. Section 32A-2-32 NMSA 1978 (being Laws 1993, Chapter 77, Section 61, as amended) is amended to read:

     "32A-2-32. CONFIDENTIALITY--RECORDS.--

          A. All records pertaining to the child, including all related social records, behavioral health screenings, diagnostic evaluations, psychiatric reports, medical reports, social studies reports, records from local detention facilities, client-identifying records from facilities for the care and rehabilitation of delinquent children, pre-parole or supervised release reports and supervision histories obtained by the juvenile probation office, parole officers and the juvenile public safety advisory board or in possession of the department, are confidential and shall not be disclosed directly or indirectly to the public.

          B. The disclosure of all mental health and developmental disability records shall be made pursuant to the Children's Mental Health and Developmental Disabilities Act.

          C. The records described in Subsection A of this section, other than mental health and developmental disability records, shall be disclosed only to any of the following, provided that the agency, person or institution receiving information shall not re-release the information without proper consent or as otherwise provided by law:

                (1) court personnel;

                (2) the child's court appointed special advocates;

                (3) the child's attorney or guardian ad litem representing the child in any matter;

                (4) department personnel;

                (5) corrections department personnel;

                (6) law enforcement officials when the request is related to the investigation of a crime;

                (7) district attorneys or children's court attorneys;

                (8) a state government social services agency in any state;

                (9) those persons or entities of a child's Indian tribe specifically authorized to inspect such records pursuant to the federal Indian Child Welfare Act of 1978 or any regulations promulgated under that act;

                (10) tribal juvenile justice system and social service representatives;

                (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, when the disclosure of the information is necessary for the child's treatment or care and shall include only that information necessary to provide for treatment and care of the child;

                (12) school personnel involved with the child if the records concern the child's educational needs, but shall only include that information necessary to provide for the child's educational planning and needs;

                (13) a health care or mental health professional involved in the evaluation or treatment of the child, the child's parents, guardians or custodian or other family members;

                (14) representatives of the protection and advocacy system; 

                (15) the child's parent, guardian or legal custodian when the disclosure of the information is necessary for the child's treatment or care and shall include only that information necessary to provide for the treatment or care of the child;

                (16) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court who agrees not to otherwise release the records; [and]

                (17) the child, if fourteen years of age or older; and

                (18) the child welfare ombudsman office and its employees and contractors, pursuant to the requirements of the Delinquency Act, if the records are needed for the purpose of implementing the Child Welfare Ombudsman Act.

          D. If disclosure of otherwise confidential records is made to the child or any other person or entity pursuant to a valid release of information signed by the child, all victim or witness identifying information shall be redacted or otherwise deleted.

          E. Whoever intentionally and unlawfully releases any information or records closed to the public pursuant to this section or releases or makes other unlawful use of records in violation of this section is guilty of a petty misdemeanor.

          F. 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 15. 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;

                (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; and 

                (20) the child welfare ombudsman office and its employees and contractors, pursuant to the requirements of the Abuse and Neglect Act, if the records are needed for the purpose of implementing the Child Welfare Ombudsman Act.

          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 16. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2023.

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