SB0324

SENATE BILL 324

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Linda M. Lopez

AN ACT

RELATING TO CHILDREN; AMENDING THE FAMILY IN NEED OF COURT-ORDERED SERVICES ACT AND THE ABUSE AND NEGLECT ACT; REVISING PROCEDURES FOR PLACING CHILDREN IN PROTECTIVE CUSTODY.

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

SECTION 1. Section 32A-3B-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 75, as amended) is amended to read:

"32A-3B-3. PROTECTIVE CUSTODY--INTERFERENCE WITH PROTECTIVE CUSTODY--PENALTY.--

A. A child may be taken into protective custody by [a law enforcement officer] the department without a court order when the [officer] department has reasonable grounds to believe that the child:

(1) has run away from the child's parent, guardian or custodian;

(2) without parental supervision is suffering from illness or injury;

(3) has been abandoned;

(4) is endangered by the child's surroundings and removal from those surroundings is necessary to ensure the child's safety;

(5) is engaged in an act that would be designated as prostitution if committed by an adult; or

(6) is a victim of human trafficking as defined in Section 30-52-1 NMSA 1978.

B. A child may be taken into protective custody pursuant to a court order issued after an agency legally charged with the supervision of the child has notified [a law enforcement agency] the department that the child has run away from a placement.

C. When a child is taken into protective custody, the department shall make a reasonable effort to determine whether the child is an Indian child.

D. Any person, other than the child taken into protective custody, who interferes with placing the child in protective custody is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."

SECTION 2. Section 32A-3B-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 76, as amended) is amended to read:

"32A-3B-4. PROTECTIVE CUSTODY--RESTRICTIONS--TIME LIMITATIONS.--

A. [A law enforcement officer who] When the department takes a child into protective custody, the department shall, with all reasonable speed, [(1)] inform the child of the reasons for the protective custody [and

(2) contact the department].

B. When the department [is contacted by a law enforcement officer who] has taken a child into protective custody, the department shall refer the child to community based services and may:

(1) accept custody of the child and designate an appropriate placement in the community for the child; or

(2) return the child to the child's parent, guardian or custodian if the child's safety is assured.

C. A child taken into protective custody shall not be placed in or transported in a law enforcement vehicle or any other vehicle that contains an adult placed under arrest, unless circumstances exist in which any delay in transporting the child to an appropriate facility would be likely to result in substantial danger to the child's physical safety. When such circumstances exist, the circumstances shall be described in writing by the driver of the vehicle and submitted to the driver's supervisor within two days after the driver transported the child.

D. A child taken into protective custody shall not be held involuntarily for more than [two] three days, unless a petition [to extend the custody] is filed pursuant to the provisions of the Family in Need of Court-Ordered Services Act or the Abuse and Neglect Act.

E. When a petition is filed or any time thereafter, the children's court or district court may issue an ex-parte custody order based upon a sworn written statement of facts showing that probable cause exists to believe that protective custody of the child is necessary.

F. The [protective] custody order shall be served on the respondent by a person authorized to serve arrest warrants [and shall direct the law enforcement officer to take custody of the child and deliver the child to a place designated by the court].

G. The Rules of Evidence do not apply to the issuance of an ex-parte custody order."

SECTION 3. Section 32A-3B-7 NMSA 1978 (being Laws 1993, Chapter 77, Section 79) is amended to read:

"32A-3B-7. PROTECTIVE CUSTODY HEARING--TIME

LIMITATIONS.--

A. When a child of an alleged family in need of court-ordered services is taken into protective custody by the department or the department petitions the court for protective custody of the child, a custody hearing shall be held within [ten] seven days from the date the petition is filed to determine if the child should remain with the family or be placed in the custody of the department pending adjudication. Upon written request of the respondent, the hearing may be held earlier, but in no event shall the hearing be held sooner than two days after the date the petition was filed.

B. The parent, guardian or custodian of the child shall be given reasonable notice of the time and place of the hearing.

C. When the custody hearing is conducted, the court shall release the child to [his] the child's parent, guardian or custodian unless probable cause exists to believe that:

(1) the child is in immediate danger from [his] the child's surroundings and the child's removal from those surroundings is necessary for [his] the child's safety or well-being;

(2) the child will be subject to injury by others if not placed in the protective custody of the department; or

(3) a parent, guardian or custodian of the child or any other person is unable or unwilling to provide adequate supervision and care for the child.

D. At the conclusion of the protective custody hearing, if the court determines that protective custody pending adjudication is appropriate, the court may:

(1) award custody of the child to the department; or

(2) return the child to the child's parent, guardian or custodian, subject to conditions that will reasonably [assure] ensure the safety and well-being of the child.

E. In addition to any disposition made by the court pursuant to the provisions of Subsection D of this section, the court may order the child and family to participate in an assessment and referral process. Copies of any diagnostic or evaluation reports ordered by the court shall be provided to the parties at least five days before the adjudicatory hearing is scheduled. The diagnostic and evaluation reports shall not be sent to the court.

F. The Rules of Evidence shall not apply to protective custody hearings conducted pursuant to the provisions of this section."

SECTION 4. 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;

E. "exigent circumstances" means there is probable cause to believe that the child is likely to suffer serious imminent harm in the time it would take to obtain an ex-parte removal order, there is no less intrusive alternative to removing the child from the home that would reasonably and sufficiently protect the child's health or safety and probable cause exists to believe one of the following is true:

(1) the child requires immediate care or diagnosis for sexual abuse or abuse involving serious physical injury;

(2) the child is in need of immediate medical care for a serious medical condition;

(3) the physical environment poses an immediate threat to the health or safety of the child that cannot be mitigated by any reasonable means other than immediate removal; or

(4) the child has been left by the parent, guardian or custodian without adequate supervision or a plan for support and care;

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

[F.] G. "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;

[G.] H. "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;

[H.] I. "physical abuse" includes any case in which the child suffers strangulation or suffocation and 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;

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

[J.] K. "sexual abuse" includes criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law;

[K.] L. "sexual exploitation" includes:

(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;

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

[M.] N. "strangulation" has the same meaning as set forth in Section 30-3-11 NMSA 1978;

[N.] O. "suffocation" has the same meaning as set forth in Section 30-3-11 NMSA 1978; and

[O.] P. "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 5. Section 32A-4-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 97, as amended) is amended to read:

"32A-4-3. DUTY TO REPORT CHILD ABUSE AND CHILD NEGLECT--RESPONSIBILITY TO INVESTIGATE CHILD ABUSE OR NEGLECT--PENALTY--NOTIFICATION OF PLAN OF CARE.--

A. Every person, including a licensed physician; a resident or an intern examining, attending or treating a child; a law enforcement officer; a judge presiding during a proceeding; a registered nurse; a visiting nurse; a schoolteacher; a school official; a social worker acting in an official capacity; or a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to:

(1) a local law enforcement agency;

(2) the department; or

(3) a tribal law enforcement or social services agency for any Indian child residing in Indian country.

B. A law enforcement agency receiving the report shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to the department and shall transmit the same information in writing within forty-eight hours. The department shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to a local law enforcement agency and shall transmit the same information in writing within forty-eight hours. The written report shall contain the names and addresses of the child and the child's parents, guardian or custodian, the child's age, the nature and extent of the child's injuries, including any evidence of previous injuries, and other information that the maker of the report believes might be helpful in establishing the cause of the injuries and the identity of the person responsible for the injuries. The written report shall be submitted upon a standardized form agreed to by the law enforcement agency and the department. A report to the department alleging abuse or neglect by a child's parent, guardian or custodian that is screened out by the department shall not be transmitted to law enforcement.

C. The recipient of a report under Subsection A of this section shall take immediate steps to ensure prompt investigation of the report. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect. A local law enforcement officer trained in the investigation of child abuse and neglect is responsible for investigating reports of alleged child abuse or neglect at schools, daycare facilities or child care facilities.

D. If the child alleged to be abused or neglected is in the care or control of or in a facility administratively connected to the department, the report shall be investigated by a local law enforcement officer trained in the investigation of child abuse and neglect. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect.

E. A law enforcement agency or the department shall have access to any of the records pertaining to a child abuse or neglect case maintained by any of the persons enumerated in Subsection A of this section, except as otherwise provided in the Abuse and Neglect Act.

F. A person who violates the provisions of Subsection A of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.

G. A finding that a pregnant woman is using or abusing drugs made pursuant to an interview, self-report, clinical observation or routine toxicology screen shall not alone form a sufficient basis to report child abuse or neglect to the department pursuant to Subsection A of this section. A volunteer, contractor or staff of a hospital or freestanding birthing center shall not make a report based solely on that finding and shall make a notification pursuant to Subsection H of this section. Nothing in this subsection shall be construed to prevent a person from reporting to the department a reasonable suspicion that a child is an abused or neglected child based on other criteria as defined by Section 32A-4-2 NMSA 1978, or a combination of criteria that includes a finding pursuant to this subsection.

H. A volunteer, contractor or staff of a hospital or freestanding birthing center shall:

(1) complete a written plan of care for a substance-exposed newborn as provided for by department rule and the Children's Code; and

(2) provide notification to the department. Notification by a health care provider pursuant to this paragraph shall not be construed as a report of child abuse or neglect.

I. As used in this section, "notification" means informing the department that a substance-exposed newborn was born and providing a copy of the plan of care that was created for the child; provided that notification shall comply with federal guidelines and shall not constitute a report of child abuse or neglect."

SECTION 6. Section 32A-4-4 NMSA 1978 (being Laws 1993, Chapter 77, Section 98, as amended) is amended to read:

"32A-4-4. COMPLAINTS--REFERRAL--PRELIMINARY INQUIRY.--

A. Reports alleging neglect or abuse shall be referred to the department, which shall conduct an investigation to determine the best interests of the child with regard to any action to be taken. The name and information regarding the person making the report shall not be disclosed absent the consent of the informant or a court order.

B. If a report alleging neglect or abuse meets the criteria established pursuant to Section 32A-4-4.1 NMSA 1978, the department may assign the case to the multilevel response system.

C. During the investigation of a report alleging neglect or abuse, the matter may be referred to another appropriate agency and conferences may be conducted for the purpose of effecting adjustments or agreements that will obviate the necessity for filing a petition. A representative of the department shall, at the initial time of contact with the party subject to the investigation, advise the party of the reports or allegations made, in a manner that is consistent with laws protecting the rights of the informant. The parties shall be advised of their basic rights and no party may be compelled to appear at any conference, to produce any papers or to visit any place. The investigation shall be completed within a reasonable period of time from the date the report was made.

[D. After completion of the investigation on a neglect or abuse report, the department shall either recommend or refuse to recommend the filing of a petition.

E.] D. When a child is taken into temporary custody, the department shall file a petition within [two] three days. If a petition is not filed in a timely manner, the child shall be released to the child's parent, guardian or custodian."

SECTION 7. Section 32A-4-6 NMSA 1978 (being Laws 1993, Chapter 77, Section 100, as amended) is amended to read:

"32A-4-6. TAKING INTO CUSTODY--PENALTY--RELEASE OR DELIVERY FROM CUSTODY.--

A. A child may be [held or] taken into temporary custody

[(1) by a law enforcement officer when the officer has evidence giving rise to reasonable grounds to believe that the child is abused or neglected and that there is an immediate threat to the child's safety; provided that the law enforcement officer contacts the department to enable the department to conduct an on-site safety assessment to determine whether it is appropriate to take the child into immediate custody, except that a child may be taken into custody by a law enforcement officer without a protective services assessment being conducted if:

(a) the child's parent, guardian or custodian has attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child's sibling;

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

(d) the child is in need of emergency medical care;

(e) the department is not available to conduct a safety assessment in a timely manner; or

(f) the child is in imminent risk of abuse; or

(2) by medical personnel when there are reasonable grounds to believe that the child has been injured as a result of abuse or neglect and that the child may be at risk of further injury if returned to the child's parent, guardian or custodian. The medical personnel shall hold the child until a law enforcement officer is available to take custody of the child pursuant to Paragraph (1) of this subsection] only pursuant to the following:

(1) an order of the district court; or

(2) exigent circumstances as defined in Section 32A-4-2 NMSA 1978.

B. When the department determines filing an application for removal is necessary, it shall file without delay. On an application for a removal order filed by the department upon a sworn written statement of facts by a department representative, law enforcement officer or medical personnel, the district court may issue an ex-parte removal order authorizing the department to take temporary custody of a child on finding that continuation in the home would be contrary to the child's welfare and probable cause exists to believe that temporary custody is necessary to protect the child from imminent threat of abuse or neglect. When determining whether to issue an ex-parte removal order, the court shall consider whether the threat can be mitigated by less extreme measures and whether the harm from any imminent threat of abuse or neglect outweighs the harm to the child resulting from removal. Pending the department filing the application and the court's action on the application, the department may hold and transport the child.

C. If a child is taken into temporary custody pursuant to this section, but the initial allegations did not include concerns for the child's sibling, the safety of the sibling shall be assessed by the department. If there are danger indicators that cannot be mitigated, the sibling shall also be taken into temporary custody only if independent probable cause exists to believe temporary custody is necessary as to each child.

D. The department may take a child into temporary custody without an ex-parte removal order if exigent circumstances exist. If a law enforcement officer or medical personnel has evidence to believe exigent circumstances exist, the law enforcement officer or medical personnel shall contact the department, which will then conduct an on-site safety assessment to determine whether it is necessary to take the child into temporary custody without a court order. The department shall document its decision to take the child into temporary custody based on exigent circumstances.

[B.] E. A child shall not be taken into protective custody solely on the grounds that the child's parent, guardian or custodian refuses to consent to the administration of a psychotropic medication to the child.

[C. When a child is taken into custody by law enforcement, the department is not compelled to place the child in an out-of-home placement and may release the child to the child's parent, guardian or custodian.]

F. When a law enforcement officer or medical personnel has a reasonable belief that a child has been injured as a result of abuse or neglect or that the child may be at risk of harm if returned to the child's parent, guardian or custodian, the law enforcement officer or medical personnel shall hold the child until the department is available to conduct an on-site safety assessment to determine whether it is necessary to take the child into temporary custody pursuant to Subsection A of this section.

G. When the department takes a child into temporary custody due to alleged sexual abuse or abuse involving serious physical injury pursuant to Subsection D of this section, the department shall immediately arrange to have the child examined by a physician or a health care provider who has specific training in evaluations of child abuse. If the examination rules out abuse, the department shall release the child to the custody of the parent, guardian or custodian unless the department files an application for a removal order.

[D.] H. When a child is taken into temporary custody, the department shall make reasonable efforts to determine whether the child is an Indian child. The department shall provide written notice to the Indian child's tribe of its investigation.

I. The department shall make active efforts to prevent or eliminate the need for removing the child from the child's home, with the paramount concern being the child's health and safety. If the department knows or has reason to know that the child is an Indian child, the department shall also provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.

J. When the department has obtained temporary custody of the child through an ex-parte removal order or through a determination that exigent circumstances exist, the department shall give written notice thereof, including the court order, if any, as soon as possible, and in no case later than twenty-four hours, to the child's parent, guardian or custodian together with a statement of the reason for taking the child into custody.

[E.] K. If a child taken into temporary custody is an Indian child or there is a reason to know the child is an Indian child, [and is alleged to be neglected or abused] the department shall give notice to the agent of the Indian child's tribe in accordance with the federal Indian Child Welfare Act of 1978.

L. When the department has obtained temporary custody of a child through an ex-parte removal order or through a determination that exigent circumstances exist, the department shall file a petition within three days from the date that the child was taken into temporary custody. When the department obtains temporary custody based on a determination that exigent circumstances exist, the department shall obtain an ex-parte removal order within eighteen hours of the determination. The department may release the child at any time within the three-day period after the child was taken into temporary custody if the department determines that release is appropriate.

M. The Rules of Evidence shall not apply to the issuance of an ex-parte removal order.

[F.] N. Any person who intentionally interferes with protection of a child, as provided by [Subsection A of] this section, is guilty of a petty misdemeanor."

SECTION 8. Section 32A-4-17.1 NMSA 1978 (being Laws 2016, Chapter 54, Section 3) is amended to read:

"32A-4-17.1. NOTICE TO GRANDPARENTS AND RELATIVES.-- Within thirty days after a child is taken into custody by [law enforcement] the department, or when the department files a petition seeking legal custody of the child, whichever occurs first, the department shall exercise due diligence and make reasonable efforts to identify and provide notice to all grandparents; all parents of a sibling of the child, when the parent has legal custody of the sibling; and other adult relatives of the child, including adult relatives suggested by the parents, unless such notice would be contrary to the best interests of the child due to family or domestic violence. The notice shall:

A. specify that the child has been or is being removed from the custody of the parent or parents of the child;

B. explain the options the relative has under federal, state or other law to participate in the care and placement of the child, including any options that may be lost by failing to respond to the notice;

C. describe the requirements for becoming a foster family home and the additional services and support that are available for children placed in such a home; and

D. set out the dates of any currently scheduled court hearings that involve the child."

SECTION 9. Section 32A-4-18 NMSA 1978 (being Laws 1993, Chapter 77, Section 112, as amended) is amended to read:

"32A-4-18. CUSTODY HEARINGS--TIME LIMITATIONS--NOTICE-- PROBABLE CAUSE.--

A. [When a child alleged to be neglected or abused has been placed in the legal custody of the department or the department has petitioned the court for temporary custody] A custody hearing shall be held within [ten] seven days from the date the petition is filed to determine if the child should remain in or be placed in the department's custody pending adjudication. Upon written request of the respondent, the hearing may be held earlier, but in no event shall the hearing be held sooner than two days after the date the petition was filed.

B. The parent, guardian or custodian of the child alleged to be abused or neglected shall be given reasonable notice of the time and place of the custody hearing.

C. At the custody hearing, the court shall return legal custody of the child to the child's parent, guardian or custodian unless probable cause exists to believe that:

(1) the child is suffering from an illness or injury, and the parent, guardian or custodian is not providing adequate care for the child;

(2) the child is in immediate danger from the child's surroundings and removal from those surroundings is necessary for the child's safety or well-being;

(3) the child will be subject to injury by others if not placed in the custody of the department;

(4) there has been an abandonment of the child by the child's parent, guardian or custodian; or

(5) the parent, guardian or custodian [is not able or willing to provide adequate supervision and care for the child] left the child without adequate supervision or a plan for support and care.

D. At the conclusion of the custody hearing, if the court determines that probable cause exists pursuant to Subsection C of this section, the court may:

(1) return legal custody of the child to the child's parent, guardian or custodian upon such conditions as will reasonably ensure the safety and well-being of the child, including protective supervision or maintenance at home by the department or participation in programs or services aimed at addressing the underlying causative factors that impact the safety or well-being of the child; or

(2) award legal custody of the child to the department.

E. Reasonable efforts shall be made to preserve and reunify the family, with the paramount concern being the child's health and safety. When the department determines that the home of an adult relative of the child meets all relevant child protection and licensing standards and placement in the home would be in the best interest of the child, the department shall give a preference to placement of the child in that home. The department shall make reasonable efforts to conduct home studies on appropriate relatives who express an interest in providing placement for the child.

F. At the conclusion of the custody hearing, if the court determines that probable cause does not exist pursuant to Subsection C of this section, the court shall:

(1) retain jurisdiction and, unless the court permits otherwise, order that the respondent and child remain in the jurisdiction of the court pending the adjudication;

(2) return legal custody of the child to the child's parent, guardian or custodian with conditions to provide for the safety and well-being of the child; and

(3) order that the child's parent, guardian or custodian allow the child necessary contact with the child's guardian ad litem or attorney.

G. At the conclusion of the custody hearing, the court may order the respondent or the child alleged to be neglected or abused, or both, to undergo appropriate diagnostic examinations or evaluations. If the court determines that probable cause does not exist, the court may order the respondent or the child alleged to be neglected or abused, or both, to undergo appropriate diagnostic examinations or evaluations as necessary to protect the child's best interests, based upon the allegations in the petition and the evidence presented at the custody hearing. Copies of any diagnostic or evaluation reports ordered by the court shall be provided to the parties at least five days before the adjudicatory hearing is scheduled. The reports shall not be sent to the court.

H. The Rules of Evidence shall not apply to custody hearings.

I. Notwithstanding any other provision of law, a party aggrieved by an order entered pursuant to this section shall be permitted to file an immediate appeal as a matter of right. If the order appealed from grants the legal custody of the child to or withholds it from one or more of the parties to the appeal, the appeal shall be expedited and shall be heard at the earliest practicable time. While an appeal pursuant to this section is pending, the court shall have jurisdiction to take further action in the case pursuant to Subsection B of Section 32A-1-17 NMSA 1978.

J. Nothing in this section shall be construed to abridge the rights of [Indian children pursuant to] the parties and the Indian child's tribe in a proceeding to which the federal Indian Child Welfare Act of 1978 applies."

SECTION 10. A new section of the Abuse and Neglect Act, Section 32A-4-18.1 NMSA 1978, is enacted to read:

"32A-4-18.1. [NEW MATERIAL] POST-PETITION REMOVAL HEARING.--

A. A child who is subject to an abuse or neglect petition, but who is not in the department's custody, may be removed by the department for the reasons and in the manner described in Section 32A-4-6 NMSA 1978.

B. Pursuant to Subsection A of this section, a hearing shall be held within seven days of the removal to determine if the child should remain in the department's custody.

C. At a removal hearing held before the child is adjudicated as abused or neglected, the court shall return legal custody of the child to the child's parent, guardian or custodian unless probable cause exists to believe that:

(1) the child is suffering from a serious illness or injury, and the parent, guardian or custodian is not providing adequate care for the child;

(2) the child is in immediate danger from the child's surroundings, and removal from those surroundings is necessary for the child's safety or well-being;

(3) the child will be subject to injury by others if not placed in the custody of the department;

(4) there has been an abandonment of the child by the child's parent, guardian or custodian; or

(5) the parent, guardian or custodian left the child without adequate supervision or a plan for support and care.

D. At a removal hearing held after the child is adjudicated as abused or neglected, the court shall return legal custody of the child to the child's parent, guardian or custodian unless a preponderance of the evidence exists to believe that one of the conditions of Subsection C of this section exists.

E. At the conclusion of the removal hearing, if the court determines that probable cause exists pursuant to Subsection C of this section or that a preponderance of the evidence exists pursuant to Subsection D of this section, the court may:

(2) award legal custody of the child to the department.

F. At the conclusion of the removal hearing, if the court determines that probable cause does not exist pursuant to Subsection C of this section or that a preponderance of the evidence does not exist pursuant to Subsection D of this section, the court shall:

(1) retain jurisdiction and, unless the court permits otherwise, order that the respondent and child remain in the jurisdiction of the court;

(2) return legal custody of the child to the child's parent, guardian or custodian with conditions to provide for the safety and well-being of the child; and

(3) order the child's parent, guardian or custodian to allow the child necessary contact with the child's guardian ad litem or attorney.

G. The Rules of Evidence shall not apply to removal hearings.

H. Notwithstanding any other provision of law, a party aggrieved by an order entered pursuant to this section shall be permitted to file an immediate appeal as a matter of right. If the order appealed from grants the legal custody of the child to or withholds it from one or more of the parties to the appeal, the appeal shall be expedited and shall be heard at the earliest practicable time. While an appeal pursuant to this section is pending, the court shall have jurisdiction to take further action in the case pursuant to Subsection B of Section 32A-1-17 NMSA 1978.

I. Nothing in this section shall be construed to abridge the rights of the parties and the Indian child's tribe in a proceeding to which the federal Indian Child Welfare Act of 1978 applies."

SECTION 11. REPEAL.--Sections 32A-4-7 and 32A-4-16 NMSA 1978 (being Laws 1993, Chapter 77, Sections 101 and 110, as amended) are repealed.

SECTION 12. EFFECTIVE DATE.--The effective date of the provisions of this act is October 1, 2021.