2024 New Mexico Statutes
Chapter 32A - Children's Code
Article 15 - Children's and Juvenile Facility Criminal Records Screening
Section 32A-15-3 - Criminal history records check; background checks.
A. State and national criminal history records checks shall be conducted on all operators, employees, student interns and volunteers and prospective operators, employees, student interns and volunteers of every facility or program that has primary custody of children for twenty hours or more per week, and juvenile detention facilities, juvenile correction facilities or treatment facilities. State and national criminal history records checks shall also be conducted on all prospective foster or adoptive parents and other adult relatives and non-relatives residing in the prospective foster or adoptive parent's household. The objective of conducting the records checks is to protect the children involved and promote the children's safety and welfare while receiving service from the facilities and programs.
B. For purposes of investigating the suitability of persons enumerated in Subsection A of this section, the department shall have access to criminal history records information furnished by the department of public safety and the federal bureau of investigation, subject to any restrictions imposed by federal law. As directed by the department, a person enumerated in Subsection A of this section shall submit a set of electronic fingerprints to the department of public safety. The department of public safety shall conduct a check of state criminal history records and forward the fingerprints to the federal bureau of investigation for a national criminal history records check to determine the existence and content of records of convictions and arrests in this state or other law enforcement jurisdictions and to generate a criminal history records check in accordance with rules of the department and regulations of the federal bureau of investigation. The department of public safety shall review the information returned from the criminal history records check and compile and disseminate the criminal history record information to the department, which shall use the information to investigate and determine whether a person is qualified to provide care for a child or be a foster or adoptive parent.
C. Criminal history records obtained pursuant to the provisions of this section are confidential and are not a public record for purposes of the Inspection of Public Records Act [Chapter 14, Article 3 NMSA 1978] and shall not be used for any purpose other than determining suitability for licensure, employment, volunteer service, fostering or adoption. Criminal history records obtained pursuant to the provisions of this section and the information contained in those records shall not be released or disclosed to any other person or agency, except pursuant to a court order or with the written consent of the person who is the subject of the records.
D. A person who releases or discloses criminal history records or information contained in those records in violation of the provisions of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.
E. As used in this section:
(1) "behavior management skills development" means services for children and adolescents with psychological, emotional, behavioral, neurobiological or substance abuse problems in the home, community or school when such problems are of such severity that highly supportive and structured therapeutic behavioral interventions are required. These services are designed to maintain the client in the client's home, community or school setting;
(2) "case management" means services provided in order to assist children and adolescents with identifying and meeting multiple and complex, special physical, cognitive and behavioral health care needs through planning, securing, monitoring, advocating and coordinating services;
(3) "child placement agency" means an individual or an entity licensed by the department as an adoption agency, foster care agency or both that is undertaking to place a child in a home in this or any other state for the purpose of providing foster care or adoption services;
(4) "comprehensive community support services" means a variety of interventions, primarily face-to-face and in community locations, that address barriers that impede the development of skills necessary to independent functioning in the community;
(5) "day treatment" means a coordinated and intensive set of structured individualized therapeutic services, in a school or a facility licensed by the department, provided for children, adolescents and their families who are living in the community;
(6) "employee" means a person working for a facility or program who has direct care responsibilities or potential unsupervised access to care recipients;
(7) "facility" means a juvenile correction facility, a juvenile detention facility or a treatment facility;
(8) "group home" means mental and behavioral health services offered in a supervised, licensed facility that provides structured therapeutic group living for children or adolescents with moderate behavioral, psychological, neurobiological or emotional problems, when clinical history and opinion establish that the needs of the client cannot be met in a less restrictive environment;
(9) "intensive outpatient programming" means a time-limited, multifaceted approach to treatment services for children or adolescents who require structure and support to achieve and sustain recovery;
(10) "juvenile correction facility" means the physical plant and buildings operated by or on behalf of the juvenile justice division of the department or any other facility or location designated by the juvenile justice division's director to house or provide care to clients committed to the custody of the department;
(11) "juvenile detention facility" means a place where a child may be detained under the Children's Code [Chapter 32A NMSA 1978] pending a court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child;
(12) "operator" means a person who has any oversight over a facility's or program's employees or day-to-day operations;
(13) "prevention, intervention and reunification services" means prevention awareness, family support and reunification services for families that are at high risk of child maltreatment;
(14) "primary custody" means that a facility or program holds temporary or long-term custody or supervision over children in the absence of a parent or guardian;
(15) "program" means behavior management skills development, case management, a group home, day treatment, treatment foster care services, a child placement agency, licensed shelter care, comprehensive community support services, intensive outpatient programming, supervised visitation and safe exchange and children, youth and families department contractors and providers receiving funding or reimbursement to provide prevention, intervention and reunification services;
(16) "residential treatment facility" means a program that provides twenty-four-hour therapeutic care to children or adolescents with severe behavioral, psychological, neurobiological or emotional problems who are in need of psychosocial rehabilitation in a residential facility;
(17) "shelter care" means any facility that provides short-term emergency living accommodations to children in a crisis situation, such as abandonment, abuse or neglect, or who are runaways;
(18) "student intern" means a person who is paid or unpaid and is present in a facility or program to work, observe or gain skills in a particular profession;
(19) "supervised visitation and safe exchange" means a service that provides children and their parents with a safe, nurturing environment for supervised visitation and exchange, allowing a child to continue the child's relationship with the noncustodial parent without being placed in the middle of parental conflicts;
(20) "treatment facility" means a residential treatment facility or group home;
(21) "treatment foster care services" means a program that provides therapeutic services to children or adolescents who are psychologically or emotionally disturbed or behaviorally disordered and are placed in a foster family setting; and
(22) "volunteer" means a person who spends less than six hours per week at a program, is under direct physical supervision and is not counted in the program facility ratio.
History: Laws 1985, ch. 103, § 3 and Laws 1985, ch. 140, § 3; 1978 Comp., § 24-18-3, recompiled as 1978 Comp., § 32-9-3; recompiled as 1978 Comp., § 32A-15-3 by Laws 1993, ch. 77, § 216; 1999, ch. 146, § 1; 2003, ch. 261, § 2; 2005, ch. 189, § 76; 2022, ch. 30, § 14; 2024, ch. 28, § 2.
ANNOTATIONSThe 2024 amendment, effective February 29, 2024, amended an existing provision that required criminal background checks for persons working in programs having primary custody of children for more than 20 hours per week to include criminal background checks for student interns of the children, youth and families department, removed references to the early childhood education and care department, making the section applicable to the children, youth and families department only, and defined terms; in Subsection A, deleted "staff" preceding each occurrence of "employees", added "student interns" after each occurrence of "employees", after "volunteers of", deleted "child care facilities, including", after "juvenile detention", added "facilities, juvenile", and after "correction", added "facilities"; deleted former Subsections B and C and redesignated former Subsections D through F as Subsections B through D, respectively; in Subsection B, after "enumerated in", changed "Subsections B and C" to "Subsection A", after the next occurrence of "the", deleted "early childhood education and care department or the children, youth and families", and after "disseminate", deleted "a response" and added "the criminal history record information"; and added Subsection E.
The 2022 amendment, effective July 1, 2022, authorized the early childhood education and care department to perform criminal history investigations for child care facility licensure and other purposes, and provided that the criminal history records obtained pursuant to this section are confidential and not a public record for purposes of the Inspection of Public Records Act; in Subsection A, after "shall be conducted on all operators, staff, employees", added "and volunteers", and after "prospective operators, staff, employees", added "and volunteers"; deleted former Subsections B and C, added new Subsections B through D, and redesignated former Subsections D and E as Subsections E and F, respectively; and in Subsection E, after "the provisions of this section", added "are confidential and are not a public record for purposes of the Inspection of Public Records Act and", and after "shall not be used for any purpose other than", deleted "conducting background checks", and added "determining suitability for licensure, employment, volunteer service, fostering or adoption".
The 2005 amendment, effective June 17, 2005, provided in Subsection A that nationwide criminal history record checks shall be conducted on all prospective foster or adoptive parents and other adult relatives and non-relatives residing in the prospective foster or adoptive parent's household; and provided in Subsection B that the department shall fingerprint and conduct a background check of all adoptive parents and other adult relatives and non-relatives residing in the prospective foster or adoptive parent's household.
The 2003 amendment, effective July 1, 2003, substituted "conducting the record checks is to protect" for "protecting" following "The objective of" near the beginning of the second sentence of Subsection A; rewrote Subsection B; and added Subsections C, D and E.
The 1999 amendment, effective July 1, 1999, added "Background Checks" in the section heading, substituted "the" for "such" in Subsection A and added Subsection B.
