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F I S C A L I M P A C T R E P O R T

SPONSOR Tsosie

DATE TYPED 2/15/2005 HB

SHORT TITLE Clarify Safe Haven for Infants Act

SB 225/aSPAC

ANALYST Dunbar

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Children Youth and Families Department (CYFD)

Department of Indian Affairs (DIA)

New Mexico Department of Corrections (NMDC)

Administrative Office of the Courts (AOC)

NM Attorney General’s Office (AG)

SUMMARY

Synopsis of SPAC Amendment

Senate Public Affairs Committee Amendment of Senate Bill 225 includes language that when a

child is taken into custody by CYFD and after reasonable efforts have been made to determine

whether the infant is an Indian child, the child’s tribe shall be notified as required by the NM

Children’s Code and the federal Indian Child Welfare Act.

Synopsis of Bill

Senate Bill 225 addresses potential conflicts between the Safe Haven Act as written, the Indian

Child Welfare Act, and the constitutional rights of parents

.

Senate Bill 225/aSPAC -- Page 2

Significant Issues

The Safe Haven Act is intended to shield parents from criminal prosecution when they choose to

leave infants at hospitals, and thereby to provide a safe alternative for parents unable to care for

newborn children. It was never the intent of the Act to shield parents from the requirements of

civil proceedings which are legally required to free the child for adoption. Among those legal

requirements are notice to both parents (not just the one who left the infant), so that both parents

can receive due process in adoption proceedings, and notice to the Indian Tribe (if the infant is

an Indian child), so that the placement and other requirements of the federal Indian Child Wel-

fare Act can be complied with.

Some hospitals have interpreted the Act as currently written as requiring them to shield the iden-

tities of mothers who leave children at hospitals, and of the father and possible Indian heritage of

the infant, when the hospital has that information but the mother says she does not want the fa-

ther or the child’s tribe to know about the birth. This interpretation conflicts with the rights of

the biological father and the child’s tribe to be party to custody and adoption decisions. The pro-

posed amendment would provide for disclosure by the hospital to CYFD all information the hos-

pital obtains from the mother leaving the infant, including information about the father and about

the infant’s possible Indian heritage.

SB 225, according to DIA, would make the definition of “Indian child” consistent with the fed-

eral Indian Child Welfare Act of 1978 (ICWA). The current statutory definition is narrower than

the definition in ICWA. Broadening the definition would provide tribes an increased ability to

actively participate in the proper placement of the infant.

In addition the AG points out that the bill modifies the procedure to be followed if a parent seeks

reunification with the infant. The bill amends §24-22-7 to provide that a parent shall have stand-

ing to participate in all abuse and neglect proceedings regarding the child, but the bill also elimi-

nates subsection (B) providing that there shall be no presumption of abuse and neglect against a

parent seeking reunification, if done so within 30 days of leaving the child at the hospital.

FISCAL IMPLICATIONS

AOC states that there will be a minimal administrative cost for statewide update, distribution,

and documentation of statutory changes. Any additional fiscal impact on the judiciary would be

proportional to the enforcement of this law and commenced prosecutions.

ADMINISTRATIVE IMPLICATIONS

It is often difficult or impossible to determine a child’s ethnic background after CYFD takes cus-

tody through a safe haven hospital, when parent identification and contact information is not

made available. The amendment would allow CYFD to comply with its administrative and legal

obligations under the Indian Child Welfare Act and the Children’s Code, which elsewhere re-

quires compliance with that Act. The amendment would also expedite adoption permanency for

certain children by clarifying the child’s ethnicity and tribal affiliation in advance of adoption

proceedings.

Senate Bill 225/aSPAC -- Page 3

TECHNICAL ISSUES

AOC indicates the current language §24-22-3(B) states that a hospital “may” ask a person leav-

ing an infant for the name of the parents and the infant’s medical history. The bill in §24-25-

4(E) NMSA 1978 states that the hospital “shall” provide all available information regarding the

child and parents, including identity, location of the parents, and child’s medical records. These

two sections may conflict.

OTHER SUBSTANTIVE ISSUES

The AG office states that Section 32A-4-22(I) of the New Mexico Children's Code requires that,

whenever a child is placed in CYFD's custody, CYFD must investigate whether the child is eli-

gible for enrollment as a member of an Indian tribe and, if so, must pursue enrollment on the

child's behalf. The Act itself also requires CYFD to make reasonable efforts to determine

whether the infant is an Indian child. See NMSA 1978, §24-22-5(C) (2004 Supp.). SB 225 adds

language that would require a hospital to inquire about whether the infant has a parent who is

either a tribal member or eligible for membership in an Indian tribe. This, coupled with new

language under the bill requiring hospitals to provide CYFD with all available information re-

garding both the child and the parents, might afford another opportunity for CYFD to identify

Indian child(ren) left under the Act’s provisions.

BD/lg:sb:yr