2021 New Mexico Statutes
Chapter 32A - Children's Code
Article 4 - Child Abuse and Neglect
Section 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;

(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.

History: 1978 Comp., § 32A-4-33, enacted by Laws 1993, ch. 77, § 127; 2005, ch. 189, § 56; 2009, ch. 239, § 51; 2016, ch. 54, § 8.

Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. § 1901.

For the federal Development Disabilities Assistance and Bill of Rights act, see 42 U.S.C. § 6000.

For the federal Protection and Advocacy for Mentally Ill Individuals Act of 1991, see 42 U.S.C. § 10801.

The 2016 amendment, effective May 18, 2016, expanded permitted disclosure of confidential information regarding a neglect or abuse case to certain people or entities; in Subsection B, Paragraph (1), after "court personnel", added "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", in Paragraph (2), after "special advocates", added "appointed to the neglect or abuse proceedings", in Paragraph (5), after "department personnel", added "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", added new Paragraph (13) and redesignated former Paragraphs (13) through (15) as Paragraphs (14) through (16), respectively, in Paragraph (14), after "of the child", added "or of", in Paragraph (16), deleted the paragraph designation "(16)", added new Paragraphs (17) and (18) and designated the language from former Paragraph (16) as Paragraph (19).

The 2009 amendment, effective July 1, 2009, in Paragraph (9) of Subsection B, after "agency in any state", added the remainder of the sentence; and deleted former Subsection E, which provided that when a child's death is allegedly caused by abuse or neglect, the department may release information about the case after consulting with the district attorney.

The 2005 amendment, effective June 17, 2005, in Subsection A, deleted the former qualification that the records be in the possession of the court or the department and provided that information as well as records concerning a party that are incident to or obtained as a result of a proceeding or that were produced during an investigation are confidential; in Subsection B, provided that records may be disclosed only to the parties and the persons listed in Subsection B(1) through (16); added the attorney representing a child in an abuse or neglect action, a delinquency action or any other action under the Children's Code in Subsection B(4) as a person to whom records may be disclosed; and added Subsection F, which provided that the department shall promulgate rules for the disclosure of records.

In camera review of records. — Where defendant, who was charged with criminal sexual contact of a minor, had evidence suggesting that the victim had been interviewed a number of times by the children, youth and families department and had made unsubstantiated allegations of sexual abuse in the past; defendant sought to obtain records of the victim's past interviews to establish defendant's claim that as a result of the past interviews, the victim had learned how to respond to questions in a way that gave the victim's allegations credence; and because there was no physical evidence of abuse of the victim, the state's case rested on the victim's credibility; defendant made a threshold showing of materiality sufficient to require the district court to conduct in camera review of the records of the victim's prior allegations. State v. Garcia, 2013-NMCA-064, 302 P.3d 111, cert. denied, 2013-NMCERT-004.