2021 New Mexico Statutes
Chapter 32A - Children's Code
Article 4 - Child Abuse and Neglect
Section 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. "fictive kin" means a person not related by birth, adoption or marriage with whom a child has an emotionally significant relationship;
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;
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;
H. "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. "relative" means a person related to another person by birth, adoption or marriage within the fifth degree of consanguinity;
J. "sexual abuse" includes criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law;
K. "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. "sibling" means a brother or sister having one or both parents in common by birth or adoption;
M. "strangulation" has the same meaning as set forth in Section 30-3-11 NMSA 1978;
N. "suffocation" has the same meaning as set forth in Section 30-3-11 NMSA 1978; and
O. "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.
History: 1978 Comp., § 32A-4-2, enacted by Laws 1993, ch. 77, § 96; 1997, ch. 34, § 1; 1999, ch. 77, § 3; 2009, ch. 239, § 33; 2016, ch. 54, § 2; 2017, ch. 64 , § 2; 2018, ch. 30, § 3.
ANNOTATIONSThe 2018 amendment, effective July 1, 2018, included "strangulation" and "suffocation" within the definition of "physical abuse", and added definitions of "strangulation" and "suffocation" to the Abuse and Neglect Act; in Subsection H, after "in which the child", added "suffers strangulation or suffocation and any case in which the child"; and added Subsections M and N.
The 2017 amendment, effective June 16, 2017, defined "educational decision maker" as used in the Abuse and Neglect Act; added a new Subsection D and redesignated former Subsections D through L as Subsections E through M, respectively; and in Subsections H, J and K, after "includes", deleted "but is not limited to".
The 2016 amendment, effective May 18, 2016, added "fictive kin", "relative" and "sibling" to the definitions section of the Abuse and Neglect Act; added new Subsection D and redesignated former Subsections D, E and F as Subsections E, F and G, respectively; added new Subsection H and redesignated former Subsections G and H as Subsections I and J, respectively; and added new Subsection K and redesignated the succeeding subsection accordingly.
The 2009 amendment, effective July 1, 2009, added Subsection I.
The 1999 amendment, effective July 1, 1999, deleted "but is not limited to" following "includes" in the introductory language of Subsection A; in Subsection B, in Paragraph (1), inserted "has suffered or who" and added the language beginning "because of" to the end, and in Paragraph (2), inserted "or caused"; added Subsections C and D and redesignated the subsequent subsections accordingly; in Subsection E, in Paragraph (2), substituted "failure" for "neglect", and in Paragraph (4), deleted "other" following "hospitalization or".
The 1997 amendment, effective July 1, 1997, added Paragraph B(1) and redesignated former Paragraphs B(1) to (4) as Paragraphs B(2) to (5).
Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-3 NMSA 1978 have been included in the annotations to this section.
Proof of perpetrator of child abuse. — Subsection B of Section 32A-4-2 NMSA 1978 does not require a specific determination of which parent's actions or inactions caused a child to be put at risk when adjudicating the child as abused and evidence that the abuse was perpetrated by either parent is sufficient for a court to conclude that the action or inaction of a parent caused the abuse and bring the case within the scope of the statute. State ex rel. Children, Youth and Families Dep't v. Carl C., 2012-NMCA-065, 281 P.3d 1242.
Where the parents of a child were the primary caregivers of the child; the court found by clear and convincing evidence that one parent or the other parent, or both, had caused severe physical injuries to the child; and the court could not determine which parent specifically had been the perpetrator, the court did not err in adjudicating the child as abused without determining which parent actually caused the injuries suffered by the child. State ex rel. Children, Youth and Families Dep't v. Carl C., 2012-NMCA-065, 281 P.3d 1242.
Act not unconstitutionally vague. — Abuse and Neglect Act is not unconstitutionally vague. State ex rel. Children, Youth & Families Dept. v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367.
Sufficient evidence of neglect. — Where the children lived with the mother; the father and the mother failed to see to the well-being, needs and support of the children; the father knew about the mother's propensities for drug abuse and domestic violence and knew or should have known about the children, youth and families department involvement with the children and the placement of the children with fictive kin; the father indicated to the department that he had no concerns regarding the care of the children; the father failed to respond to messages from the department and failed to appear at meetings with the department; the father was delinquent with child support; the father visited the children only once or twice a month; and the father made no effort to have the children live with him, the evidence was clear and convincing that the father neglected the children. State ex rel. Children, Youth & Families Dep't v. Cosme V., 2009-NMCA-094, 146 N.M. 809, 215 P.3d 747, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
Sufficient evidence of neglect based on abandonment. — Where father was found by the district court to have neglected his child by abandoning her, and where father claimed that his lack of knowledge that the child's mother, who had custody of the infant, would neglect her, and that his lack of certain knowledge, through DNA testing, that he in fact was the father of the child negated any conclusion of abandonment under 32A-4-2(A)(2) NMSA 1978, the district court's determination that father had abandoned and thus neglected the child were supported by clear and convincing evidence, where the evidence demonstrated that father left the child in the care of mother without provision for support or communication, that the child was neglected while in mother's care, and that father was on notice and acknowledged that he was the father of the child. State ex rel. CYFD v. Michael H., 2018-NMCA-032, cert. denied.
Insufficient evidence of neglect. — Evidence that the newborn child's initial toxicology test was positive, that the mother admitted to using narcotics and marijuana during her pregnancy, and that the mother left the child in the care of nurses while she left the hospital to smoke was insufficient to make the child neglected because of the mother's intentional or negligent disregard of the child's wellbeing and proper needs. State ex rel., Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141 N.M. 299, 154 P.3d 674.
Evidence that the mother of a newborn child had a long history of drug abuse, a criminal history and a history of violence was insufficient to show that the mother was actually unable to provide proper parental care or discharge her responsibilities to the child. State ex rel., Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141 N.M. 299, 154 P.3d 674.
Insufficient evidence of mental disorder or incapacity. — Where the legislature intended mental incapacity to encompass those circumstances in which an individual, due to an intellectual disability, is unable, as opposed to unwilling, to discharge his or her responsibilities to a child, the district court's conclusion that child was neglected pursuant to 32A-4-2E(4) NMSA 1978 was not supported by the evidence when the district court did not make any findings that mother suffered from a mental disorder or illness, nor did it find that mother suffered from mental incapacity, but explicitly found that mother was capable of learning and mastering information, but that her defiant attitude was affecting her ability to recognize the conditions she needed to improve in order to safely parent child. The district court erred in concluding that child was neglected pursuant to 32A-4-2E(4) and in concluding that the children, youth and families department established by clear and convincing evidence that a mental disorder or incapacity caused mother's inability to discharge her responsibilities to child. State ex rel. CYFD v. Christina L., 2015-NMCA-115.
"Abandonment". — Parent abandoned children when parent left children in the care of their other parent, when the parent knew about drugs and had neglected the children; parent offered very little support to children before becoming incarcerated and then squandered any opportunity to be present in the children's lives by violating probation and becoming incarcerated; and while in prison, parent made no attempts to contact or support the children or to ensure their safety. State ex rel. Children, Youth & Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 705, 161 P.3d 262.
"Abused child". — Prior to its amendment in 1997, the definition of "abused child," did not permit the children's court to adjudicate a child abused or neglected where there was no evidence that the parent, guardian or custodian was responsible for the abuse or neglect. State ex rel. Children, Youth & Families Dep't v. Vincent L., 1998-NMCA-089, 125 N.M. 452, 963 P.2d 529, cert. denied, 125 N.M. 654, 964 P.2d 818.
"Abused and neglected". — Where parent left the children unattended for long periods of time, exposed them to dangerous situations, failed to understand their physical and emotional needs, failed to empathize with their feelings, was self-centered in the parent's interactions with them, exposed them to domestic violence, exposed them to substance abuse, showed an indifference to their needs in favor of the parent's own needs, and placed them with inappropriate caretakers, the children were abused and neglected. In re Termination of Parental Rights of Eventyr J., 1995-NMCA-087, 120 N.M. 463, 902 P.2d 1066 (Ct. 108), cert. denied 120 N.M. 394, 902 P.2d 76.
"Aggravated circumstances". — Sections 32A-4-2C, 32A-4-22C, and 32A-4-28B(2) NMSA 1978 are constitutional facially and as applied to a mother, whose parental rights were terminated without the state making reasonable efforts toward family reunification, where the mother had previously had parental rights terminated as to another child and no progress was evident in the mother's efforts to kick a 4-year drug abuse problem. State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845.
Where parent left the children in the care of another, was involved in criminal activity, became unavailable due to parent's incarceration, substance abuse was present in the home, and parent failed to maintain a relationship with the children, aggravating circumstances existed. State ex rel. Children, Youth & Families Dep't v. William M., 2007-NMCA-055, 161 P.3d 262.
Where mother emphasized that she has not abused child and has not had an opportunity to actually demonstrate her parenting skills with child, and while true, the court noted that she has had an opportunity to demonstrate her abilities with five older children, and her admission of involuntary termination of her parental rights to those older children operates as clear and convincing proof of that fact, while this fact is not determinative for a finding of abuse and neglect, it is considered an aggravated circumstance under the Abuse and Neglect Act in the context of termination of parental rights. State ex rel. Children, Youth & Families Dept. v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367.
Stepfather as "custodian". — A stepfather meets the definition of "custodian" for purposes of the court's subject matter jurisdiction over him in a proceeding on a petition alleging abuse or neglect of a child. In re Candice Y., 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, cert. denied, 129 N.M. 207, 4 P.3d 35.
"Neglected". — Parent neglected children through parent's failure to be involved in the children's lives prior to parent's incarceration, failure to provide a safe and stable home by dealing drugs in the home, parent's decision to leave the children's home when they were very young, parent's decision to violate the terms of parent's probation resulting in parent's incarceration, and parent's failure to provide for the children or protect them from the other parent's neglect both prior to and during parent's incarceration. State ex rel. Children, Youth & Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161 P.3d 262.
Although low IQ, mental disability, or mental illness alone are not sufficient grounds for a finding of abuse or neglect where mother was unable to effectively parent due to her mental disorder and incapacity, this finding meets the definition of neglect under Subsection E(4) of this section. State ex rel. Children, Youth & Families Dept. v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367.
Evidence that a mother left her children in the care at their grandparents presented insufficient evidence to prove that mother was unfit to care for her children and failed to show that the children were "neglected" under Paragraph E(2), where mother left the children with the grandparents for extended periods of time but she visited them and had them to her various residences on a regular basis. In re Guardianship of Ashleigh R., 2002-NMCA-103, 132 N.M. 772, 55 P.3d 984, cert. denied, 132 N.M. 732, 55 P.3d 428.
Neglect of psychological needs. — The New Mexico Children's Code's definition of a "neglected child" is subject to broad interpretation and arguably encompasses situations where the child's psychological needs are neglected. Martinez v. Mafchir, 35 F.3d 1486 (10th Cir. 1994).
Definition of "sexual abuse" constitutional. — The definition of "sexual abuse" in this section is not unconstitutionally vague as applied to defendant's conduct which fit squarely within the specifically prohibited conduct, namely criminal sexual contact of a minor. In re Candice Y., 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, cert. denied, 129 N.M. 207, 4 P.3d 35.
Retardation evidence not required for ruling on neglect. — In a neglect proceeding, evidence that a child is severely retarded is not required for a ruling that the child is neglected. State ex rel. Health & Soc. Servs. Dep't v. Natural Father, 1979-NMCA-090, 93 N.M. 222, 598 P.2d 1182.
Incarceration. — Even though incarceration alone is not an appropriate reason to terminate parental rights, where the father was convicted of the murder of the mother, his subsequent long-term incarceration was sufficient to establish that the child was neglected, and that termination of his parental rights was justified. State ex rel. Children, Youth & Families Dep't v. Joe R., 1997-NMSC-038, 123 N.M. 711, 945 P.2d 76.
Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973).
For article, "Treating Children Under the New Mexico Mental Health and Developmental Disabilities Code," see 10 N.M.L. Rev. 279 (1980).
For note, "Children's Code - Neglect - State ex rel. Health & Social Services Department v. Natural Father," see 12 N.M.L. Rev. 505 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Power of court or other public agency to order medical treatment for child over parental objections not based on religious grounds, 97 A.L.R.3d 421.
