2018 New Mexico Statutes
Chapter 32A - Children's Code
Article 4 - Child Abuse and Neglect
Section 32A-4-6 - Taking into custody; penalty.
A. A child may be held or taken into 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;
(c) the child has been abandoned;
(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.
B. 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.
D. When a child is taken into custody, the department shall make reasonable efforts to determine whether the child is an Indian child.
E. If a child taken into custody 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.
F. Any person who intentionally interferes with protection of a child, as provided by Subsection A of this section, is guilty of a petty misdemeanor.
History: 1978 Comp., § 32A-4-6, enacted by Laws 1993, ch. 77, § 100; 2005, ch. 189, § 41; 2009, ch. 239, § 35; 2015, ch. 51, § 2.
Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901.
The 2015 amendment, effective June 19, 2015, prohibited the taking of a child into protective custody solely on the basis that the child's parent, guardian or custodian refuses to consent to the administration of a psychotropic medication to the child; in Subsection A, Paragraph (2), after "Subsection", deleted "A of this section"; and added Subsection B, and redesignated the succeeding subsections accordingly.
The 2009 amendment, effective July 1, 2009, in Paragraph (1) of Subsection A, after "when the officer has", deleted language which provided that an officer who has reasonable grounds to believe a child is suffering from illness or injury as a result of abuse or neglect or has been abandoned or is in danger could take the child into custody; and added the remainder of the sentence; added Subparagraphs (a) through (f) of Paragraph (1) of Subsection A; in Paragraph (2) of Subsection A, in the last sentence, after "custody of the child", deleted "or until a law enforcement officer has authorized release of the child to the department", and added the remainder of the sentence; and added Subsection B.
Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.
The 2005 amendment, effective June 17, 2005, in Subsection B, deleted "by the department".
Qualified immunity. — Social workers and a sheriff who took temporary custody of children without parental consent or a court order were entitled to qualified immunity where they had a reasonable belief that a "sufficient emergency existed" to warrant taking the children into temporary custody. Oldfield v. Benavidez, 1994-NMSC-006, 116 N.M. 785, 867 P.2d 1167.
Warrant required to enter home. — For the purpose of qualified immunity analysis, it is clearly established that an officer could not enter a home without a warrant absent exigent circumstances or an emergency situation. Chavez v. Board of Cnty. Comm'rs, 2001-NMCA-065, 130 N.M. 753, 31 P.3d 1027.
Exception to warrant requirement. — Implicit in this section and other New Mexico authority is the recognition that a law enforcement officer may not intrude on a person's reasonable expectation of privacy unless the officer has reasonable grounds to believe that immediate action is necessary to safeguard a child from imminent harm or injury. Chavez v. Board of Cnty. Comm'rs, 2001-NMCA-065, 130 N.M. 753, 31 P.3d 1027.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Construction and effect of statutes mandating consideration of, or creating presumptions regarding, domestic violence in awarding custody of children, 51 A.L.R.5th 241.
