SENATE HEALTH AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
SENATE BILL 242
55th legislature - STATE OF NEW MEXICO - first session, 2021
AN ACT
RELATING TO CITIZEN SUBSTITUTE CARE REVIEW; PROVIDING FOR SUBMISSION, REVIEW AND RESOLUTION OF GRIEVANCES AGAINST THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT PERTAINING TO SUBSTITUTE CARE; DEFINING TERMS IN THE CITIZEN SUBSTITUTE CARE REVIEW ACT; PROVIDING FOR STAFFING OF THE SUBSTITUTE CARE ADVISORY COUNCIL; PROVIDING FOR RULES PERTAINING TO VOLUNTEER MEMBERS; PROVIDING ACCESS TO AND REQUIREMENTS FOR CONFIDENTIALITY OF CERTAIN RECORDS AND INFORMATION; CHANGING REPORTING REQUIREMENTS; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. 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] a member of the substitute care advisory council, a member of its staff or a member of a board pursuant to the requirements of the Citizen Substitute Care Review Act, if the records are requested for the purpose of carrying out the provisions of the Citizen Substitute Care Review Act;
(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.
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 2. Section 32A-8-2 NMSA 1978 (being Laws 1993, Chapter 77, Section 204, as amended) is amended to read:
"32A-8-2. PURPOSE OF ACT.--The purpose of the Citizen Substitute Care Review Act is to provide a permanent system for independent and objective monitoring [of children placed in the custody] of the department by examining the policies, procedures and practices of the department [and, where appropriate, specific cases] to evaluate [the extent to which the department is effectively] its effectiveness in discharging its child protection responsibilities and to meet federal requirements for citizen review panels under the federal Child Abuse Prevention and Treatment Act."
SECTION 3. A new section of the Citizen Substitute Care Review Act is enacted to read:
"[NEW MATERIAL] DEFINITIONS.--As used in the Citizen Substitute Care Review Act:
A. "board" means a substitute care review board of volunteer members facilitated by council staff convened for the purpose of reviews of designated cases or other related activities deemed appropriate by the council;
B. "case" means an abuse or neglect case referred to the department;
C. "council" means the substitute care advisory council;
D. "department" means the children, youth and families department or its agent or contractor;
E. "grievance" means a complaint received by council staff:
(1) of any action or inaction that may or has adversely affected the health, safety, welfare or rights of an identified child or identified adult; or
(2) of the failure of the department to comply with the law or department policies;
F. "identified adult" means an adult participating in the fostering connections program or that program's successor;
G. "identified child" means a child who is:
(1) the subject of a referral of abuse and neglect made to the department;
(2) receiving services from the department; or
(3) in the custody of the department due to abuse and neglect proceedings;
H. "public member" means an individual who has been appointed by the governor;
I. "substitute care" means custodial or residential care for an identified child that is ordered or otherwise sanctioned by the court and in which the child does not live with either of the child's birth parents. "Substitute care" includes foster care, kinship care or care within a group home, residential treatment center, juvenile justice facility, semi-independent living program or emergency shelter; and
J. "volunteer member" means an individual who has met eligibility requirements to perform volunteer services for the council."
SECTION 4. Section 32A-8-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 206, as amended) is amended to read:
"32A-8-4. SUBSTITUTE CARE ADVISORY COUNCIL--MEMBERS--COMPENSATION--RESPONSIBILITIES--ADVISORY COMMITTEE.--
A. The "substitute care advisory council" is created and, in accordance with the provisions of Section 9-1-7 NMSA 1978, is administratively attached to the regulation and licensing department. [The general purpose of the council is to oversee substitute care review boards in their monitoring of children placed in the custody of the children, youth and families department to identify systemic policy issues regarding substitute care.] The council shall exercise its functions independently and not under the control of the department or the regulation and licensing department. The council shall be composed of [nine persons] ten voting members, including:
(1) the secretary of public education or the secretary's designee;
(2) the secretary of human services or the secretary's designee;
(3) the secretary of finance and administration or the secretary's designee;
(4) the secretary of health or the secretary's designee;
[(5) two public members, appointed by the governor, who:
(a) are at least eighteen and no more than thirty years of age at the time of appointment; and
(b) were previously placed in substitute care;
(6) two public members, appointed by the governor, who have expertise in the area of child welfare; and]
(5) the secretary of early childhood education and care or the secretary's designee;
[(7)] (6) one children's court judge, appointed by the governor; and
(7) four public members, two of whom have expertise in the area of child welfare and two of whom have had experience in abuse and neglect proceedings, including former foster youth, biological parents, foster parents and adoptive parents.
B. [The council may hire staff and contract for services to carry out the purposes of the Citizen Substitute Care Review Act.] The secretary of children, youth and families or the secretary's designee shall serve as a nonvoting member.
C. Except as provided pursuant to Paragraph [(7)] (6) of Subsection A and Subsection B of this section, a person or a relative of a person employed by the department or a district court shall not serve on the council.
[C.] D. Terms of office of public members of the council shall be three years. Public members shall be eligible for reappointment. In the event that a vacancy occurs among the members of the council, the governor shall appoint another person to serve the unexpired portion of the term.
E. A member of the council shall receive per diem and mileage as provided for nonsalaried public officers pursuant to the Per Diem and Mileage Act; provided that, if a different provision of that act applies to a member, that member shall be paid pursuant to that provision. A member of the council shall receive no other compensation, perquisite or allowance.
[D.] F. The council shall select a chairperson, a vice chairperson and other officers as it deems necessary.
[E.] G. The council shall meet no less than [twice annually] quarterly and more frequently upon the call of the chairperson.
H. The council may establish work groups and enter into contracts, memoranda of understanding and joint powers agreements to carry out the provisions of the Citizen Substitute Care Review Act.
[F.] I. The council shall adopt reasonable rules relating to the functions and procedures of [the substitute care review boards and] the council [in accordance with the duties of the boards as provided in the Citizen Substitute Care Review Act]. These rules shall establish:
[(1) establish training requirements for substitute care review board members;
(2) establish criteria for council designation of cases for substitute care review board review;
(3) establish procedures for substitute care review board review of designated cases;
(4) establish criteria for membership and tenure on and operating procedures for substitute care review boards;
(5) specify the information needed for designated cases to be monitored by substitute care review boards; and
(6) specify case information to be tracked and reported to the council.
G. When adopting rules establishing criteria for designation of cases for substitute care review board review, the council shall weigh the importance of the following factors, including:
(1) sibling placements;
(2) the frequency and severity of neglect or abuse;
(3) the behavioral health status of household members;
(4) the placement of children in households where there are no relatives of the children;
(5) data related to demographics; and
(6) relevant trend data]
(1) procedures to ensure compliance with the Open Meetings Act;
(2) initial and annual training requirements for council staff;
(3) requirements for public participation, including participation on work groups and boards;
(4) criteria for establishment of the council's designation of cases;
(5) procedures for the council's review of designated cases;
(6) procedures for receipt and processing of grievances;
(7) procedures to provide for public outreach and public comment to assess the impact of current child protection procedures and practices on children and families in the community; and
(8) other procedures to provide for compliance with the Citizen Substitute Care Review Act and the federal Child Abuse Prevention and Treatment Act as it relates to citizen review panels.
[H.] J. The council shall [review and coordinate the activities of the substitute care review boards and make a report with its recommendations to the department, the courts and the appropriate legislative interim committees] provide periodic reports on the work of the council, including an annual written report to the governor, the legislature, the department and the administrative office of the courts and other persons, organizations or agencies deemed appropriate. The annual report shall be distributed electronically on or before November 1 of each year [regarding statutes, rules, policies and procedures relating to substitute care]. This report shall include [recommendations for any changes to substitute care review boards.
I. Council members shall receive per diem and mileage as provided for nonsalaried public officers in the Per Diem and Mileage Act; provided that, if a different provision of that act applies to a specific member, that member shall be paid pursuant to that applicable provision. Members shall receive no other compensation, perquisite or allowance.
J. The council shall appoint by October 1 of each year a six-member advisory committee from a list of substitute care review board members that the substitute care review boards shall nominate. The advisory council shall meet with the council at least once per year to advise the council on matters relating to substitute care review. Advisory committee members shall serve terms of one year and may be reappointed] a summary of the activities of the council and recommendations to improve child protective services at the state and local levels. Other reports regarding trends or topics deemed necessary by the council may be provided to the governor, the legislature, the department and the administrative office of the courts."
SECTION 5. A new section of the Citizen Substitute Care Review Act is enacted to read:
"[NEW MATERIAL] COUNCIL ADMINISTRATION--STAFFING.--
A. The council shall hire a director who:
(1) shall oversee, manage and direct processing of cases and grievances filed or reviewed pursuant to the Citizen Substitute Care Review Act, provide administrative support to the council and conduct any other activities as deemed necessary by the council to support its functions;
(2) shall act impartially in a nonpartisan manner;
(3) shall promote public awareness of the purpose and services of the council and the methods for submitting grievances or requests for case review;
(4) shall employ staff for the council and fix compensation of the staff;
(5) shall prepare a budgetary request to be submitted through the regulation and licensing department in accordance with the provisions of Section 9-1-7 NMSA 1978; and
(6) may apply for and accept grants, gifts and bequests from other states, federal and interstate agencies, independent authorities, private firms, individuals and foundations for the purpose of carrying out the responsibilities of the council.
B. The director shall possess the following qualifications:
(1) a master's degree in social work and possession of a license issued pursuant to the Social Work Practice Act; or
(2) an active license to practice law issued pursuant to rules promulgated by the supreme court; and
(3) at least five years' experience in child welfare administration, with an emphasis on child abuse and neglect prevention or abatement.
C. The director shall hire staff to carry out the purposes of the Citizen Substitute Care Review Act, including review of cases and processing of grievances. Council staff providing professional services shall possess:
(1) a bachelor's degree in social work, psychology, guidance and counseling, education, sociology, criminal justice, criminology or family studies and at least two years of experience in child welfare administration with an emphasis on child abuse and neglect prevention or abatement; or
(2) at least four years of experience combined from:
(a) study at an accredited college or university in a field related to child welfare; or
(b) professional experience working in the field in child welfare.
D. Council staff shall be required to complete annual training directly relating to enhancing staff proficiency, meeting job requirements, conducting case reviews and processing grievances required pursuant to the Citizen Substitute Care Review Act."
SECTION 6. A new section of the Citizen Substitute Care Review Act is enacted to read:
"[NEW MATERIAL] ATTORNEY GENERAL REPRESENTATION AND CONSULTATION.--The attorney general shall advise and consult with the council, acting pursuant to the Citizen Substitute Care Review Act, and render legal services upon request of the council."
SECTION 7. A new section of the Citizen Substitute Care Review Act is enacted to read:
"[NEW MATERIAL] GRIEVANCES.--
A. Council staff shall review each grievance submitted to council staff.
B. The council shall promulgate rules regarding council staff's acceptance and processing of grievances to establish:
(1) criteria for grievances that are accepted by council staff;
(2) procedures for the referral of grievances involving allegations of abuse and neglect pursuant to the requirements provided in Sections 27-7-30 and 32A-4-3 NMSA 1978;
(3) procedures for the referral of grievances that do not meet the criteria established by the council to an appropriate entity; and
(4) investigation and assessment procedures and time frames to respond to grievances.
C. Following the review of a grievance, council staff shall submit a report to the department regarding the strengths, concerns and recommendations relating to the grievance.
D. The secretary of children, youth and families or the secretary's designee shall acknowledge receipt of the report within ten business days and indicate the department's position as to each recommendation.
E. Council staff and the department shall meet quarterly or as needed to develop mutually agreed-upon solutions.
F. An individual who requests a remedy pursuant to this section shall not be precluded from pursuing other legal or equitable remedies.
G. The department, its agent or contractor shall not discharge, discriminate against in any manner or retaliate against an employee, volunteer or contractor who, in good faith, submits a grievance with the council."
SECTION 8. A new section of the Citizen Substitute Care Review Act is enacted to read:
"[NEW MATERIAL] VOLUNTEER MEMBER PARTICIPATION--RULES.--
A. The council shall promulgate rules relating to volunteer member participation, which shall include provisions for:
(1) efforts to recruit and retain volunteer members who are broadly representative of the communities in which they serve and to include volunteer members with expertise in the prevention and treatment of child abuse and neglect and adult former victims of child abuse or neglect;
(2) a membership process that includes background checks and orientation training;
(3) ongoing training requirements;
(4) procedures to address conflicts of actual, perceived or possible conflicts of interest;
(5) a code of conduct; and
(6) procedures to maintain confidentiality of information required to be kept confidential as required by law.
B. Each volunteer member that meets the requirements established by council rules shall participate at least once quarterly in case reviews and other activities deemed appropriate by council staff.
C. Volunteer members may receive per diem and mileage as provided for nonsalaried public officers in the Per Diem and Mileage Act; provided that if a different provision of that act applies to a specific member, that member shall be paid pursuant to that applicable provision. Members shall receive no other compensation, perquisite or allowance."
SECTION 9. A new section of the Citizen Substitute Care Review Act is enacted to read:
"[NEW MATERIAL] SUBSTITUTE CARE REVIEW BOARD ESTABLISHMENT--CASE REVIEW.--
A. The council shall establish boards comprised entirely of volunteer members to review cases designated in accordance with council rules.
B. When a case has been designated for review pursuant to council rules, the staff of the council shall convene a board to review the case.
C. If a case reviewed by a board is a children's court case, the staff of the council shall give the parties to the case notice of the review and afford the parties to the case an opportunity to provide input relevant to the review. If the case involves an Indian child, notice shall additionally be provided to persons afforded notice pursuant to the federal Indian Child Welfare Act of 1978.
D. After a board's review of a children's court case, council staff shall submit a report of the board's findings and recommendations to the children's court, the department and the parties to the case. If the case involves an Indian child, the report shall additionally be provided to persons afforded notice pursuant to the federal Indian Child Welfare Act of 1978.
E. The department shall acknowledge receipt of the report within ten business days and indicate the department's position with each recommendation.
F. Council staff and the department shall meet quarterly, or as needed to develop mutually agreed-upon solutions."
SECTION 10. A new section of the Citizen Substitute Care Review Act is enacted to read:
"[NEW MATERIAL] ACCESS TO RECORDS.--
A. Subject to state or federal law to the contrary, council staff shall have access to, including the right to inspect and copy, any records necessary to carry out council responsibilities, including access to the following:
(1) social records, diagnostic evaluations, psychiatric or psychologic reports, video footage, transcripts and audio records of a child's statement of abuse or medical reports incident to an abuse or neglect proceeding;
(2) a record of an agency, hospital, organization, school, person or office, including the clerk of the court, the department, a court-appointed special advocate program, a public or private health care facility, a medical or mental health care professional, a law enforcement agency or other agency that provides services to children and families;
(3) a record of an administrative hearing conducted by the department and any findings or conclusions resulting from such hearing; and
(4) a record of a private meeting with a child in protective custody or with an individual with knowledge of the case or grievance.
B. The department shall establish procedures to provide the requested records in a timely manner.
C. The department shall:
(1) establish procedures to provide the requested records in a timely manner and to ensure staff availability to provide input for case reviews and processing of grievances; and
(2) ensure that its agents and contractors provide requested records in a timely manner and ensure staff availability to provide input for case reviews and processing of grievances.
D. The department, its agent or contractor shall not discharge, discriminate against in any manner or retaliate against an employee, volunteer or contractor who, in good faith, communicates with the council about a grievance, case review or provision of records pursuant to this section."
SECTION 11. A new section of the Citizen Substitute Care Review Act is enacted to read:
"[NEW MATERIAL] CONFIDENTIALITY OF INFORMATION.--
A. Information obtained or generated by a member of the council, a staff member of the council or a member of a board for the purpose of performing duties in compliance with the Citizen Substitute Care Review Act is not subject to the provisions of the Inspection of Public Records Act.
B. The name, address or other personally identifiable information of a person whose records are released to council staff or who files a grievance shall be confidential.
C. A member of the council, a staff member of the council or a member of a board with knowledge of a case or grievance that was obtained pursuant to the Citizen Substitute Care Review Act shall maintain that information as confidential unless:
(1) the person filing the grievance or the identified child or identified adult who is the subject of the case consents in writing to disclosure of that information to another person;
(2) the person filing the grievance or the identified child or identified adult who is the subject of the case provides oral consent for disclosure to another person that is immediately documented in writing by council staff; or
(3) disclosure is ordered by a court."
SECTION 12. REPEAL.--Sections 32A-8-5 and 32A-8-6 NMSA 1978 (being Laws 1993, Chapter 77, Sections 207 and 208, as amended) are repealed.
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