HOUSE BILL 411

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Doreen Y. Gallegos and Gay G. Kernan

AN ACT

RELATING TO CHILDREN; ENACTING A NEW SECTION OF THE PUBLIC SCHOOL CODE TO REQUIRE SCHOOLS TO APPOINT A PERSON WHO IS A POINT OF CONTACT FOR STUDENTS IN FOSTER CARE AND STUDENTS INVOLVED IN THE JUVENILE JUSTICE SYSTEM; ENACTING A NEW SECTION OF THE ABUSE AND NEGLECT ACT TO REQUIRE THE CHILDREN'S COURT TO APPOINT AN EDUCATIONAL DECISION MAKER FOR STUDENTS IN FOSTER CARE.

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

     SECTION 1. A new section of Chapter 22, Article 13 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] APPOINTING A POINT OF CONTACT PERSON FOR CERTAIN STUDENTS.--

          A. As used in this section:

                (1) "foster care" means twenty-four-hour substitute care for a student placed away from the student's parents or guardians and for whom the children, youth and families department has placement and care responsibility, including placements in foster family homes, foster homes of relatives, group homes, emergency shelters, treatment foster homes, residential facilities, child care institutions and preadoptive homes. For the purposes of this section, a student is in foster care regardless of whether the foster care facility is licensed and payments are made by the state, tribal or local agency for the care of the student, whether adoption subsidy payments are being made prior to the finalization of an adoption or whether there is federal matching of any payments that are made; and

                (2) "involved in the juvenile justice system" means a student who has been referred to the children, youth and families department due to allegations that the student has committed a delinquent offense and voluntary or involuntary conditions have been imposed on the student, including a student who is participating in a diversion program, is under a consent decree or time waiver, is currently supervised by the children, youth and families department, has recently entered or left a juvenile or criminal justice placement or is on supervised release or parole.

          B. Each school district shall designate an individual to serve as a point of contact for students in foster care and students involved in the juvenile justice system.

          C. For students transferring into the school district, the point of contact person shall be responsible for:

                (1) ensuring that a student is immediately enrolled regardless of whether the records normally required for enrollment are produced by the last school the student attended or by the student;

                (2) ensuring that the enrolling school communicates with the last school attended by a transferring student to obtain relevant academic and other records within two business days of the student's enrollment;

                (3) ensuring that the enrolling school performs a timely transfer of credits that the student earned in the last school attended; and

                (4) collaborating with the education program staff in a juvenile or criminal justice placement and the educational decision maker appointed by the children's court to create and implement a plan for assisting the transition of a student to the school district to minimize disruption to the student's education.

          D. For students transferring out of the school district, the point of contact person shall be responsible for providing all records to the new school within two business days of receiving a request from the receiving school.

          E. For students in foster care, the point of contact person shall be responsible for:

                (1) developing school district policies for:

                     (a) best interest determinations about whether the student will remain in the school of origin;

                     (b) transportation policies to ensure that students receive transportation to their school of origin if it is in their best interest to remain in the school of origin; and

                     (c) dispute resolution;

                (2) convening or participating in best interest determination meetings pursuant to the school district's policies; and

                (3) ensuring that transportation occurs to the student's school of origin pursuant to the school district's policies.

          F. For students in foster care and students involved in the juvenile justice system, the point of contact person shall be responsible for:

                 (1) ensuring that a student has equal opportunity to participate in sports and other extracurricular activities, career and technical programs or other special programs for which the student qualifies;

                (2) ensuring that a student in high school receives timely and ongoing assistance and advice from counselors to improve the student's college and career readiness;

                (3) ensuring that a student receives all special education services and accommodations to which the student is entitled under state and federal law;

                (4) identifying school staff at each school site who can ensure that students are appropriately supported throughout their enrollment;

                (5) supporting communication among the school; the children, youth and families department; the student; the student's educational decision maker appointed by the children's court; caregivers; and other supportive individuals that the student identifies to ensure that the responsibilities listed in this subsection are implemented; and

                (6) ensuring that other school district staff and teachers have access to training and resources about the educational challenges and needs of system-involved youth, including trauma-informed practices and the impact of trauma on learning.

          G. The children, youth and families department shall notify a school when a student in the school enters foster care or a student in foster care enrolls in a school.

          H. The student or the student's educational decision maker may notify a school that the student is involved in the juvenile justice system to obtain support and services from the point of contact."

     SECTION 2. Section 32A-4-2 NMSA 1978 (being Laws 1993, Chapter 77, Section 96, as amended) is amended to read:

     "32A-4-2. DEFINITIONS.--As used in the Abuse and Neglect Act:

          A. "abandonment" includes instances when the parent, without justifiable cause:

                (1) left the child without provision for the child's identification for a period of fourteen days; or

                (2) left the child with others, including the other parent or an agency, without provision for support and without communication for a period of:

                     (a) three months if the child was under six years of age at the commencement of the three-month period; or

                     (b) six months if the child was over six years of age at the commencement of the six-month period;

          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. "aggravated circumstances" includes those circumstances in which the parent, guardian or custodian has:

                (1) attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child's sibling;

                (2) attempted, conspired to cause or caused great bodily harm or death to another parent, guardian or custodian of the child;

                (3) attempted, conspired to subject or has subjected the child to torture, chronic abuse or sexual abuse; or

                (4) had parental rights over a sibling of the child terminated involuntarily;

           D. "educational decision maker" means an individual appointed by the children's court to attend school meetings and to make decisions about the child's education that a parent could make under law, including decisions about the child's educational setting, and the development and implementation of an individual education plan for the child;

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

          [E.] F. "great bodily harm" means an injury to a person that creates a high probability of death, that causes serious disfigurement or that results in permanent or protracted loss or impairment of the function of a member or organ of the body;

          [F.] G. "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 Children's Code 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 Children's Code; and further provided that no child shall be denied the protection afforded to all children under the Children's Code;

          [G.] H. "physical abuse" includes [but is not limited to] any case in which the child exhibits evidence of skin bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling or death and:

                (1) there is not a justifiable explanation for the condition or death;

                (2) the explanation given for the condition is at variance with the degree or nature of the condition;

                (3) the explanation given for the death is at variance with the nature of the death; or

                (4) circumstances indicate that the condition or death may not be the product of an accidental occurrence;

          [H.] I. "relative" means a person related to another person by birth, adoption or marriage within the fifth degree of consanguinity;

          [I.] J. "sexual abuse" includes [but is not limited to] criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law;

          [J.] K. "sexual exploitation" includes [but is not limited to]:

                (1) allowing, permitting or encouraging a child to engage in prostitution;

                (2) allowing, permitting, encouraging or engaging a child in obscene or pornographic photographing; or

                (3) filming or depicting a child for obscene or pornographic commercial purposes, as those acts are defined by state law;

          [K.] L. "sibling" means a brother or sister having one or both parents in common by birth or adoption; and

          [L.] M. "transition plan" means an individualized written plan for a child, based on the unique needs of the child, that outlines all appropriate services to be provided to the child to increase independent living skills. The plan shall also include responsibilities of the child, and any other party as appropriate, to enable the child to be self-sufficient upon emancipation."

     SECTION 3. A new section of the Abuse and Neglect Act is enacted to read:

     "[NEW MATERIAL] APPOINTMENT OR CHANGE OF EDUCATIONAL DECISION MAKER.--

          A. In all matters involving children alleged by the state to be abused or neglected, including proceedings to terminate parental rights, the children's court shall appoint an educational decision maker in every case.

          B. The children's court shall appoint an educational decision maker at the custody hearing; provided that the children's court:

                (1) may change the appointment of an educational decision maker upon motion of a party at any stage of the proceedings; and

                (2) shall review at each subsequent stage of the proceedings whether to continue or change the appointment of an educational decision maker for the child.

          C. The children's court shall appoint a respondent as the child's educational decision maker, unless the children's court determines that doing so would be contrary to the best interests of the child. If the children's court determines that no respondent should be appointed as the child's educational decision maker, the children's court shall appoint another qualified individual, taking into account the following:

                (1) whether the individual knows the child and is willing to accept responsibility for making educational decisions;

                (2) whether the individual has any personal or professional interests that conflict with the interests of the child; and

                (3) whether the individual is permitted to make all necessary educational decisions for the child, including decisions related to whether the child is a child with a disability under the federal Individuals with Disabilities Education Act."

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