SENATE BILL 229

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Linda M. Lopez and Antoinette Sedillo Lopez and Andrea Romero

AN ACT

RELATING TO CHILDREN; ENACTING THE SPECIAL IMMIGRANT JUVENILE CLASSIFICATION ACT; PROVIDING FOR JURISDICTION OF SPECIAL IMMIGRANT JUVENILE CLASSIFICATION; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; DECLARING AN EMERGENCY.

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

     SECTION 1. Section 32A-1-8 NMSA 1978 (being Laws 1993, Chapter 77, Section 17, as amended) is amended to read:

     "32A-1-8. JURISDICTION OF THE COURT--TRIBAL COURT JURISDICTION--EXCEPTION.--

          A. The court has exclusive original jurisdiction of all proceedings under the Children's Code in which a person is eighteen years of age or older and was a child at the time the alleged act in question was committed or is a child alleged to be:

                (1) a delinquent child;

                (2) a child of a family in need of court-ordered services or a child in need of services pursuant to the Family in Need of Court-Ordered Services Act;

                (3) a neglected child;

                (4) an abused child;

                (5) a child subject to adoption; or

                (6) a child subject to placement for a developmental disability or a mental disorder.

          B. The court has exclusive original jurisdiction to emancipate a minor.

          C. The provisions of the Indian Family Protection Act govern child custody proceedings involving Indian children. To the extent the provisions of the Indian Family Protection Act conflict with the Children's Code, the provisions of the Indian Family Protection Act shall apply.

          D. During abuse or neglect proceedings in which New Mexico is the home state, pursuant to the provisions of the Uniform Child-Custody Jurisdiction and Enforcement Act, the court shall have jurisdiction over both parents to determine the best interest of the child and to decide all matters incident to the court proceedings.

          E. The court may acquire jurisdiction over a Motor Vehicle Code or municipal traffic code violation as set forth in Section 32A-2-29 NMSA 1978.

          F. The court has jurisdiction pursuant to the provisions of the Special Immigrant Juvenile Classification Act to establish a child's eligibility for classification as a special immigrant juvenile pursuant to 8 U.S.C. Section 1101(a)(27)(J) in all matters and proceedings that involve abused, neglected or abandoned children, not to be limited to child custody and abuse and neglect proceedings."

     SECTION 2. A new section of Chapter 40 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] SHORT TITLE.--Sections 2 through 6 of this act may be cited as the "Special Immigrant Juvenile Classification Act"."

     SECTION 3. A new section of Chapter 40 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] DEFINITIONS.--As used in the Special Immigrant Juvenile Classification Act:

          A. "abandoned" means left without provision for reasonable and necessary care or supervision;

          B. "abused child" means a child:

                (1) who has suffered or who is at risk of suffering serious harm because of the action or inaction of the child's parent, guardian or custodian;

                (2) who has suffered physical abuse, emotional abuse or psychological abuse inflicted or caused by the child's parent, guardian or custodian;

                (3) who has suffered sexual abuse or sexual exploitation inflicted by the child's parent, guardian or custodian;

                (4) whose parent, guardian or custodian has knowingly, intentionally or negligently placed the child in a situation that may endanger the child's life or health; or

                (5) whose parent, guardian or custodian has knowingly or intentionally tortured, cruelly confined or cruelly punished the child;

          C. "child" means any unmarried person under the age of twenty-one;

          D. "court" includes the children's court and family court of the district court;

          E. "dependent on the court" means subject to the jurisdiction of a court competent to make decisions concerning the protection, well-being, care and custody of a child, to make findings and issue orders or referrals to support the health, safety and welfare of a child or to remedy the effects on a child of abuse, neglect, abandonment or similar circumstances;

          F. "neglected child" means a child:

                (1) who has been abandoned by the child's parent, guardian or custodian;

                (2) who is without proper parental care and control or subsistence, education, medical or other care or control necessary for the child's well-being because of the faults or habits of the child's parent, guardian or custodian or the failure or refusal of the parent, guardian or custodian, when able to do so, to provide them;

                (3) who has been physically or sexually abused, when the child's parent, guardian or custodian knew or should have known of the abuse and failed to take reasonable steps to protect the child from further harm;

                (4) whose parent, guardian or custodian is unable to discharge that person's responsibilities to and for the child because of incarceration, hospitalization or physical or mental disorder or incapacity; or

                (5) who has been placed for care or adoption in violation of the law; provided that nothing in the Special Immigrant Juvenile Classification Act shall be construed to imply that a child who is being provided with treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof is for that reason alone a neglected child within the meaning of the Special Immigrant Juvenile Classification Act; and further provided that no child shall be denied the protection afforded to all children under any other provision of law; and

          G. "similar circumstances" means circumstances that affect a child similar to those circumstances that affect an abused child, neglected child or abandoned child, including the death of a parent."

     SECTION 4. A new section of Chapter 40 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] APPLICATIONS AND PETITIONS FOR CLASSIFICATION AS A SPECIAL IMMIGRANT JUVENILE.--

          A. A child who alleges that returning to the child's country of origin is not in the child's best interest may apply to or petition the court for classification as a special immigrant juvenile pursuant to 8 U.S.C. Section 1101(a)(27)(J).

          B. A child who applies to or petitions the court pursuant to this section is not required to name as a respondent a parent with whom reunification may be viable."

     SECTION 5. A new section of Chapter 40 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] JURISDICTION OF THE COURT--STANDARDS--PROCEDURES.--

          A. The court has jurisdiction to establish a child's eligibility for classification as a special immigrant juvenile pursuant to 8 U.S.C. Section 1101(a)(27)(J) in all matters and proceedings that involve abused, neglected or abandoned children, not to be limited to child custody and abuse and neglect proceedings.

          B. A court acting pursuant to the Special Immigrant Juvenile Classification Act acts as a juvenile court as defined in 8 C.F.R. Section 204.11(a).

          C. Upon review of an application or petition for classification as a special immigrant juvenile pursuant to 8 U.S.C. Section 1101(a)(27)(J), supporting affidavits and any other evidence, the court shall issue findings of fact and rulings of law to determine whether:

                (1) the child is dependent on the court;

                (2) the child is an abused child, neglected child or abandoned child or has suffered similar circumstances;

                (3) the child may not be viably reunified with one or both of the child's parents because the child is an abused child, neglected child or abandoned child or has suffered similar circumstances; and

                (4) it is not in the child's best interest to be returned to the child's or parent's country of nationality or country of last habitual residence.

          D. A court shall hear and adjudicate an application or petition and issue findings of fact and rulings of law as soon as it is administratively feasible but before the child reaches the age of twenty-one.

          E. If an application or petition has been filed but neither granted nor denied before the child reaches the age of twenty-one, the court may retain jurisdiction to ensure that the requirements for classification as a special immigrant juvenile continue to be satisfied.

          F. Nothing in the Special Immigrant Juvenile Classification Act shall preclude the children's court or family court of the district court from issuing findings of fact and rulings of law similar to the provisions of Subsection C of this section in any other proceeding."

     SECTION 6. A new section of Chapter 40 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] LIBERAL INTERPRETATION.--The Special Immigrant Juvenile Classification Act shall be liberally construed to carry out its purpose."

     SECTION 7. APPLICABILITY.--The provisions of this act apply retroactively to any child deemed by a state court order to be an abused child, neglected child or abandoned child from the time the child received the order.

     SECTION 8. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

- 8 -