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. “fictive kin” means a person not related by birth, adoption or marriage with whom a child has an emotionally significant relationship;
E. “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;
F. “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;
G. “physical abuse” includes but is not limited to 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;
H. “relative” means a person related to another person by birth, adoption or marriage within the fifth degree of consanguinity;
I. “sexual abuse” includes but is not limited to criminal sexual contact, incest or criminal sexual penetration, as those acts are defined by state law;
J. “sexual exploitation” includes but is not limited to:
(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;
K. “sibling” means a brother or sister having one or both parents in common by birth or adoption; and
L. “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 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.
Amendment Notes.
The 2009 amendment, effective July 1, 2009, added (I) and made related and stylistic changes.
The 2016 amendment, effective May 18, 2016, added D, H and K; and made related redesignations.
Applicability.
Laws 2009, ch. 239, § 71 makes the provisions of this act applicable 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.
Notes to Decisions
Analysis
Constitutionality.
Phrases “without proper parental care and control . . . because of the faults or habits of the child’s parent”, “unable to discharge his responsibilities . . . because of . . . [a] mental disorder”, and “at risk of suffering serious harm” in Paragraph E of this section provide adequate standards to guide the New Mexico children, youth, and families department in its enforcement activities and do not invite or encourage arbitrary enforcement; therefore, they do not violate the Fourteenth Amendment based on vagueness. State ex rel. Children, Youth & Families Dep't v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367, 2005 N.M. App. LEXIS 54 (N.M. Ct. App. 2005).
New Mexico Abuse and Neglect Act [32A-4-1 NMSA 1978] does not permit a court to find abuse or neglect based solely on a parent’s status, so it does not violate the Eighth Amendment by permitting an improper status judgment; unfavorable personal status was only relevant to the extent that it prompts either the harms defined as abuse or neglect. State ex rel. Children, Youth & Families Dep't v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367, 2005 N.M. App. LEXIS 54 (N.M. Ct. App. 2005).
The provision of 32A-4-2C, 32A-4-22C and 32A-4-28B(2) NMSA 1978, that the fact of a previous termination of parental rights is an aggravating factor in subsequent actions for termination of parental rights, did not deny the mother due process; the provision is only one of several factors found by the court in exercising discretion to relieve the agency of reunification efforts. State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M. 136, 61 P.3d 845, 2002 N.M. App. LEXIS 102 (N.M. Ct. App. 2002).
Language of 32A-4-2E NMSA 1978, which defined “sexual abuse” as “includes, but is not limited to,” specific acts, was not unconstitutionally overbroad or vague as applied when the accused’s conduct of inappropriately touching the child fit into clearly proscribed conduct; neither could the statute be overbroad or vague on its face because the accused could not demonstrate that the statute would be void in all its applications. State ex rel. Children, Youth & Families Dept., 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, 2000 N.M. App. LEXIS 23 (Ct. App. 2000).
In a case involving child abuse and neglect allegations by child services against defendants, a mother and a stepfather, provision defining “sexual abuse” in 32A-4-2 NMSA 1978 was not unconstitutionally vague because defendant stepfather’s conduct fit conduct which was clearly proscribed by the statute; moreover, the evidence solidly supported the court’s determinations of abuse or neglect of a child. State ex rel. Children, Youth & Families Dept., 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, 2000 N.M. App. LEXIS 23 (Ct. App. 2000).
Where a social worker files a neglect petition under 32A-4-2C(2) NMSA 1978 because she believes that the child, a sexual abuse victim, is in need of psychological counseling; while the action is extreme, it does not violate any constitutional right to which the mother is entitled. Martinez v. Mafchir, 35 F.3d 1486, 1994 U.S. App. LEXIS 26975 (10th Cir. N.M. 1994).
Generally.
A neglected child is one 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 neglect or refusal of the parent, guardian or custodian, when able to do so, to provide them; by committing the murder of his child’s mother for which he was then incarcerated, father deprived child of both parents, and no showing could be made that the situation was not due to the father’s faults. State ex rel. Children, Youth & Families Dep't v. Joe R (In re Sara R.), 1997-NMSC-038, 123 N.M. 711, 945 P.2d 76, 1997 N.M. LEXIS 323 (N.M. 1997).
32A-4-2C(4) NMSA 1978 gives notice that a child is neglected if the parents lack the mental capacity to provide the care or control necessary for the child’s well-being. State ex rel. Human Servs. Dep't v. Penny J., 1994-NMCA-143, 119 N.M. 328, 890 P.2d 389, 1994 N.M. App. LEXIS 134 (N.M. Ct. App.), cert. denied, 119 N.M. 20, 888 P.2d 466, 1994 N.M. LEXIS 449 (N.M. 1994).
Abandonment.
In a termination of parental rights proceeding, the child was removed from the home due to abuse and neglect; after failed phone calls in October 2007, the father did not reach out to child again until March 2008, when he sent packages to her through the New Mexico Children, Youth, and Families Department; the father’s failure to communicate with the child was the basis for the termination of his parental rights on the ground of abandonment under 32A-4-2A(2)(a) NMSA 1978. State ex rel. Children, Youth & Families Dep't v. Benjamin O., 2009-NMCA-039, 146 N.M. 60, 206 P.3d 171, 2009 N.M. App. LEXIS 19 (N.M. Ct. App. 2009).
Abuse and neglect.
Finding that the parents’ children were abused under Subsection B(1) of this section was appropriate because, where there was evidence showing multiple serious injuries to an infant child, and the district court determined that the injuries were caused by the mother or father or both, there was sufficient evidence to find abuse of the older child. State ex rel. Children, Youth & Families Dep't v. Carl C., 2012-NMCA-065, 281 P.3d 1242, 2012 N.M. App. LEXIS 49 (N.M. Ct. App. 2012).
Where a mother had five children removed from her home in the past and she suffered from a severe mental condition, a district court properly adjudicated a minor child abused and neglected due to her inability to care for the child under this section; however, the same finding as to the father was erroneous because an expert opinion was not reliable since the child was not observed in the father’s care, the father had other positive reports about his caretaking abilities, there was no history of violence in past criminal convictions, the father had no other children, and it was speculative to determine that the father allowed the grandmother to care for the child while under the influence of drugs. State ex rel. Children, Youth & Families Dep't v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367, 2005 N.M. App. LEXIS 54 (N.M. Ct. App. 2005).
Where a stepfather admitted to inappropriately touching the child, the determination that there was “neglect or abuse” within the meaning of the New Mexico Abuse and Neglect Act, 32A-4-2 NMSA 1978, and placement of the child in the legal custody of child services and adoption of a treatment plan was proper. State ex rel. Children, Youth & Families Dept., 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, 2000 N.M. App. LEXIS 23 (Ct. App. 2000).
Evidence of physical abuse alone without any evidence that a parent was somehow responsible for the injury was insufficient to prove that a child had been abused for purposes of the abuse and neglect act prior to its 1997 amendment; the department still had to show that the parent or guardian had a duty to the child and through some action or inaction allowed the child to be harmed or neglected. State ex rel. Children, Youth & Families Dep't v. Vincent L., 1998-NMCA-089, 125 N.M. 452, 963 P.2d 529, 1998 N.M. App. LEXIS 82 (N.M. Ct. App.), cert. denied, 125 N.M. 654, 964 P.2d 818, 1998 N.M. LEXIS 267 (N.M. 1998).
Children’s court must base its findings of abuse and neglect on clear and convincing evidence, 32A-4-20H NMSA 1978; where hearsay testimony was improperly admitted and the judgment of the trial court did not distinguish between the victim’s mother and father, reversal and remand to determine whether the remaining admissible testimony constituted clear and convincing evidence of abuse and neglect as defined under 32A-4-2B(1), B(2), and C(3) NMSA were warranted. State ex rel. Children, Youth & Families Dep't, 1998-NMCA-039, 124 N.M. 735, 955 P.2d 204, 1998 N.M. App. LEXIS 13 (Ct. App. 1998).
Under 32A-4-2B NMSA 1978, a child does not necessarily have to be injured to be “abused” inasmuch as knowingly, intentionally, or negligently placing a child in danger constitutes abuse. State ex rel. Children, Youth & Families Dep't v. David F. (In re Annette F.), 1996-NMCA-018, 121 N.M. 341, 911 P.2d 235, 1995 N.M. App. LEXIS 165 (N.M. Ct. App. 1995), cert. denied, 121 N.M. 242, 910 P.2d 318, 1996 N.M. LEXIS 44 (N.M. 1996).
Under 32A-4-2B(1) NMSA 1978, an abused child is one who has suffered physical abuse, emotional abuse, or psychological abuse inflicted by the child’s parent; under 32A-4-2C(2) NMSA 1978, a neglected child is one 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 or the neglect or refusal of the parent, when able to do so, to provide them. The district court found, by clear and convincing evidence, that the mother’s children were abused and neglected under those definitions. State v. Eventyr J. (In re Eventyr J.), 1995-NMCA-087, 120 N.M. 463, 902 P.2d 1066, 1995 N.M. App. LEXIS 85 (N.M. Ct. App. 1995).
Aggravated circumstances.
Mother’s right to due process was not violated by the termination of her parental rights based on the district court’s finding that her child had been subjected to aggravated circumstances under Subsection C(4) of this section because the mother’s parental rights to a sibling child had already been terminated by the court. The court relieved the New Mexico Children, Youth and Families Department of making further efforts to work a treatment plan with the mother as such efforts would be futile in light of her continued drug use and incarceration. State ex rel. Children, Youth & Families Dep't v. Raquel M., 2013-NMCA-061, 303 P.3d 865, 2013 N.M. App. LEXIS 30 (N.M. Ct. App.), cert. quashed, 308 P.3d 134, 2013 N.M. LEXIS 342 (N.M. 2013).
Appeal.
Where a notice of appeal from an adjudication of abuse and neglect was filed late, it was presumed that counsel was ineffective in this regard, and court of appeals accepted jurisdiction over the appeal. Stat ex rel. Children, Youth & Families Dep't v. Amanda M., 2006-NMCA-133, 140 N.M. 578, 144 P.3d 137, 2006 N.M. App. LEXIS 121 (N.M. Ct. App. 2006).
Applicability.
In a termination of parental rights action, pursuant to former 40-7-4 NMSA 1978 (32A-4-28 NMSA 1978), the father abandoned his child by reason of neglect, as defined in former 32-1-3 NMSA 1978 (32A-4-2 NMSA 1978); the child was abandoned when the father was incarcerated for the murder of the child’s mother and the father was unable to discharge his responsibilities to and for the child. In re Adoption of Doe, 1982-NMCA-183, 99 N.M. 278, 657 P.2d 134, 1982 N.M. App. LEXIS 965 (N.M. Ct. App. 1982).
Burden of proof.
Before parental rights may be terminated, New Mexico law requires a demonstration, by clear and convincing evidence, that a child has been neglected or abused as defined by 32A-4-2 NMSA 1978, a showing that the causes of the neglect or abuse are unlikely to change in the foreseeable future despite reasonable efforts to assist the parent, and a showing that termination of parental rights serves the best interests of the child; a termination of parental rights cannot be based on a best interests determination alone. State ex rel. Children, Youth & Families Dep't, 2002-NMCA-061, 132 N.M. 299, 47 P.3d 859, 2002 N.M. App. LEXIS 46 (N.M. Ct. App. 2002).
Children.
Although the Abuse and Neglect Act defines a neglected child as one whose parent is unable to discharge his or her responsibilities to and for the child because of incarceration, the fact of incarceration in itself is not a dispositive legal ground to terminate parental rights; termination of parental rights had to be assessed on a case-by-case basis, but where there was no dispute that a father who murdered his child’s mother neglected the child and could not rectify that neglect during the child’s minority, summary judgment was appropriate. State ex rel. Children, Youth & Families Dep't v. Joe R (In re Sara R.), 1997-NMSC-038, 123 N.M. 711, 945 P.2d 76, 1997 N.M. LEXIS 323 (N.M. 1997).
Custodian.
Under the New Mexico Abuse and Neglect Act, 32A-4-2B NMSA 1978, an abused child is one who has suffered abuse or other harm by the child’s parent, guardian, or custodian; a stepfather was a “custodian” under that Act because he was a person, other than a parent or guardian, who exercised physical control, care, or custody of the child under 32A-1-4H NMSA 1978. State ex rel. Children, Youth & Families Dept., 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, 2000 N.M. App. LEXIS 23 (Ct. App. 2000).
Due process.
Father’s due process rights were violated by allowing an amendment of the petition adding the new charge of abuse under Subsection B(1) after closing statements pursuant to Rule 1-015 NMRA and by not following the requirements of 32A-1-18 NMSA 1978 because the father was not given adequate notice of the new charge and an opportunity to be heard. State ex rel. Children, Youth & Families Dep't v. Steve C., 2012-NMCA-045, 277 P.3d 484, 2012 N.M. App. LEXIS 17 (N.M. Ct. App. 2012).
Finding of unfitness based on conditions that were identified as neglect in 32A-4-2 NMSA 1978 did not deny a father due process in a parental rights termination proceeding. State ex rel. Children, Youth & Families Dep't v. Joe R (In re Sara R.), 1997-NMSC-038, 123 N.M. 711, 945 P.2d 76, 1997 N.M. LEXIS 323 (N.M. 1997).
Evidence.
Evidence of abuse and neglect under Subsection B of this section, which included an injury to a child and more incidents of domestic violence thereafter, met the higher standard of proof set forth in 32A-4-29(I) NMSA 1978 and 25 U.S.C.S. § 1912(f) for termination of parental rights in Indian Child Welfare Act cases. State ex rel. Children Youth & Families Dep't v. Arthur C., 2011-NMCA-022, 149 N.M. 472, 251 P.3d 729, 2011 N.M. App. LEXIS 4 (N.M. Ct. App. 2011).
—Insufficient.
Trial court erred in finding that a child was a “neglected child” as defined in 32A-4-2 NMSA 1978 where the district court’s finding of neglect was apparently premised not only upon the mother’s failure to discover the child’s injuries, but also by circumstances present in her life at the likely time of the assault. No evidence was presented that the mother was addicted to, or incapacitated by, her pain medication, or that she had reason to believe that the children were at risk when in the custody of their father, and there was insufficient evidence to put a reasonable parent on notice that something was amiss. State ex rel. Children,Youth & Families Dep't, 2001-NMCA-071, 130 N.M. 781, 32 P.3d 790, 2001 N.M. App. LEXIS 67 (Ct. App. 2001).
Where a mother was ill and required bed rest at the time that the children were returned home by the father of one of them, and did not dress the child the next morning, there was insufficient evidence that the mother neglected the child within the meaning of 32A-4-2C(2) NMSA 1978 simply because she failed to observe that the child had been sexually assaulted. State ex rel. Children,Youth & Families Dep't, 2001-NMCA-071, 130 N.M. 781, 32 P.3d 790, 2001 N.M. App. LEXIS 67 (In re Melissa G. 2001).
Jurisdiction.
Under 32A-4-2 NMSA 1978, an abused child is one who has suffered abuse or other harm by the child’s parent, guardian, or custodian; thus, the district court had jurisdiction over defendant stepfather, as a child’s custodian, in a case involving an abuse and neglect petition filed by child services. State ex rel. Children, Youth & Families Dept., 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, 2000 N.M. App. LEXIS 23 (Ct. App. 2000).
Neglected child.
District court did not err in terminating a father's parental rights because the children were deemed “neglected” by virtue of the father's incarceration, the district court considered the father's desire to have the children placed with their fictive kin, and while the father could and did express his preferences in regard to the children's placement, once they were legal custodians of the Children, Youth, and Families Department, the father was not in a position to decide where or with whom the children would be placed. State ex rel. Children, Youth & Families Dep't v. Jerry K., 2015-NMCA-047, 347 P.3d 724, 2015 N.M. App. LEXIS 3 (N.M. Ct. App.), cert. denied, 348 P.3d 694, 2015 N.M. LEXIS 107 (N.M. 2015).
Evidence that the father did not provide financial support for the child or make other arrangements for the child's care while he was incarcerated supported a finding of neglect. State ex rel. Children, Youth, & Families Dep't v. Alfonso M.-E. (In re Uriah F.-M.), 2016-NMCA-021, 366 P.3d 282, 2015 N.M. App. LEXIS 129 (N.M. Ct. App. 2015).
Clear and convincing evidence supported a finding that a father neglected his children under Subsection E(2) of this section where the children lived with their mother and the father knew of the mother’s failure to provide for the many of the children’s needs and knew of the mother’s propensities for drug use and violence but failed to act to care for the children. State ex rel. Children, Youth & Families Dep't v. Cosme V., 2009-NMCA-094, 146 N.M. 809, 215 P.3d 747, 2009 N.M. App. LEXIS 114 (N.M. Ct. App.), cert. denied, 147 N.M. 362, 223 P.3d 359, 2009 N.M. LEXIS 1058 (N.M. 2009).
Evidence that mother’s general personality type might inhibit her from empathizing with her newborn child, along with her past history of criminal activity and drug use, at best amounted to tenuous inferences of future neglect, and was not sufficient to support an adjudication of neglect. State ex rel. Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141 N.M. 299, 154 P.3d 674, 2006 N.M. App. LEXIS 173 (N.M. Ct. App. 2006).
Mother’s arranging to leave newborn child in the care of nurses while she took smoke breaks at hospital was not an indication of neglect. State ex rel. Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141 N.M. 299, 154 P.3d 674, 2006 N.M. App. LEXIS 173 (N.M. Ct. App. 2006).
Trial court should not have terminated the father’s parental rights under 32A-4-28B(2) NMSA 1978 by summary judgment as the father’s murder of the child’s mother did not constitute neglect of the child under 32A-4-2E(1), (2), (4) NMSA 1978. State ex rel. Children, Youth & Families Dep't v. Joe R. (In re Sara R.), 1996-NMCA-091, 122 N.M. 284, 923 P.2d 1169, 1996 N.M. App. LEXIS 71 (N.M. Ct. App. 1996), rev'd, 1997-NMSC-038, 123 N.M. 711, 945 P.2d 76, 1997 N.M. LEXIS 323 (N.M. 1997).
Clear and convincing evidence standard of former 32-1-55H NMSA 1978 for finding that a father neglected or abandoned his child so as to permit the child’s adoption without the father’s consent under former 32-1-54B NMSA 1978 was not satisfied where the father visited the child, provided the mother with food stamps, and did not know that the child was being neglected by the mother, and no efforts were made by any agency to assist the father in caring for the child. Roth v. Bookert (In re J.J.B.), 1993-NMCA-145, 117 N.M. 31, 868 P.2d 1256, 1993 N.M. App. LEXIS 161 (N.M. Ct. App. 1993), aff'd in part, 1995-NMSC-026, 119 N.M. 638, 894 P.2d 994, 1995 N.M. LEXIS 133 (N.M. 1995).
Clear and convincing evidence supported the findings of a trial court that: (1) the children of natural parents who were heroin addicts and incarcerated many times were neglected within the meaning of former 32-1-3 NMSA 1978; (2) the Department of Human services and other state agencies undertook reasonable efforts to assist the parents in resolving the problems that rendered the parents unable to properly care for their children, a requirement of former 40-7-4B(3) NMSA 1978; and (3) the conditions and causes of neglect were unlikely to change in the foreseeable future, a cause for termination of parental rights under former 40-7-4B(3) NMSA 1978. Termination of Parental Rights of Reuben O. v. Department of Human Servs., 1986-NMCA-031, 104 N.M. 644, 725 P.2d 844, 1986 N.M. App. LEXIS 649 (N.M. Ct. App. 1986).
Prenatal exposure to drugs.
Weak positive result for barbituates in intial toxicology test of newborn infant was not sufficient to indicate neglect, particularly in light of negative results obtained in subsequent tests, and physician testimony regarding the likelihood of false positives. State ex rel. Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141 N.M. 299, 154 P.3d 674, 2006 N.M. App. LEXIS 173 (N.M. Ct. App. 2006).
While evidence of a mother’s prenatal drug use can be relevant, a child exposed to drugs prenatally is not per se neglected. State ex rel. Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141 N.M. 299, 154 P.3d 674, 2006 N.M. App. LEXIS 173 (N.M. Ct. App. 2006).
Sexual abuse.
Record supported the children’s court determination that a child had been sexually abused by her father and that the mother had failed to protect her from that abuse where the child’s hearsay statements detailing the sexual abuse were properly admitted and there was non-hearsay testimony about the child’s sexualized and aggressive behavior as well testimony that those behaviors were consistent with post-traumatic stress disorder. State ex rel. Children, Youth & Families Dep't v. Frank G., 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, 2004 N.M. App. LEXIS 149 (N.M. Ct. App. 2004).
Criminal sexual penetration of a child in violation of 30-9-11F NMSA 1978 is clearly a form of sexual abuse under 32A-4-2E NMSA 1978. Christian Child Placement Serv. of the N.M. Christian Children's Home v. Vestal, 1998-NMCA-098, 125 N.M. 426, 962 P.2d 1261, 1998 N.M. App. LEXIS 81 (N.M. Ct. App. 1998).
Vagueness.
In a prosecution for abuse, the appellate court was able to determine the legislative intent of this section through established rules of statutory interpretation and Subsection B(1) was not unconstitutionally vague as applied. State ex rel. Children, Youth & Families Dep't v. Carl C., 2012-NMCA-065, 281 P.3d 1242, 2012 N.M. App. LEXIS 49 (N.M. Ct. App. 2012).
Notes to Unpublished Decisions
Children.
Unpublished decision: Child who was allegedly abused by an acquaintance was not an “abused child” within the meaning of Subsection B(3) of this section; therefore, 32A-4-5 NMSA 1978 did not apply to provide immunity to officers in an action arising from an acquittal for sexual penetration.O'Connell v. City of Santa Fe, No. 03-979 BB/DJS, 2005 U.S. Dist. LEXIS 47934 (D.N.M. Mar. 9, 2005).
OPINIONS OF ATTORNEY GENERAL
Authority of state to prevent withholding of medical treatment.
The state of New Mexico has authority under state law to pursue any legal remedies, including the authority to initiate legal proceedings in a court of competent jurisdiction, as may be necessary to prevent the withholding of medically indicated treatment from disabled infants with life-threatening conditions. 1985 N.M. Op. Att'y Gen. No. 85-5, 1985 N.M. AG LEXIS 9.
Research References and Practice Aids
New Mexico Law Review.
Note: Family Law-New Mexico Expands Due Process Rights Of Parents In Termination Of Parental Rights: In Re Ruth Anne E., Patricia Fletcher Schroeder, 31 N.M. L. Rev. 439 (2001).