A. Every person, including a licensed physician; a resident or an intern examining, attending or treating a child; a law enforcement officer; a judge presiding during a proceeding; a registered nurse; a visiting nurse; a schoolteacher; a school official; a social worker acting in an official capacity; or a member of the clergy who has information that is not privileged as a matter of law, who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately to:
(1) a local law enforcement agency;
(2) the department; or
(3) a tribal law enforcement or social services agency for any Indian child residing in Indian country.
B. A law enforcement agency receiving the report shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to the department and shall transmit the same information in writing within forty-eight hours. The department shall immediately transmit the facts of the report and the name, address and phone number of the reporter by telephone to a local law enforcement agency and shall transmit the same information in writing within forty-eight hours. The written report shall contain the names and addresses of the child and the child’s parents, guardian or custodian, the child’s age, the nature and extent of the child’s injuries, including any evidence of previous injuries, and other information that the maker of the report believes might be helpful in establishing the cause of the injuries and the identity of the person responsible for the injuries. The written report shall be submitted upon a standardized form agreed to by the law enforcement agency and the department.
C. The recipient of a report under Subsection A of this section shall take immediate steps to ensure prompt investigation of the report. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect. A local law enforcement officer trained in the investigation of child abuse and neglect is responsible for investigating reports of alleged child abuse or neglect at schools, daycare facilities or child care facilities.
D. If the child alleged to be abused or neglected is in the care or control of or in a facility administratively connected to the department, the report shall be investigated by a local law enforcement officer trained in the investigation of child abuse and neglect. The investigation shall ensure that immediate steps are taken to protect the health or welfare of the alleged abused or neglected child, as well as that of any other child under the same care who may be in danger of abuse or neglect.
E. A law enforcement agency or the department shall have access to any of the records pertaining to a child abuse or neglect case maintained by any of the persons enumerated in Subsection A of this section, except as otherwise provided in the Abuse and Neglect Act [32A-4-1 NMSA 1978].
F. A person who violates the provisions of Subsection A of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.
HISTORY:
1978 32A-4-3, enacted by Laws 1993, ch. 77, § 97; 1997, ch. 34, § 2; 2003, ch. 189, § 1; 2005, ch. 189, § 38.
Effect of amendments.
The 2005 amendment, effective June 17, 2005, in Paragraph A(2) and Subsection B, deleted “office in the county where the child resides” following the first occurrence of “department”; in the second sentence of Subsection B, substituted “The department” for “A department office receiving a report”; deleted “agency” following “law enforcement” in the third sentence of Subsection C; and in Subsections C and D, inserted “officer trained in the investigation of child abuse and neglect”.
Notes to Decisions
Children.
Defendant had a privilege to refuse to disclose and to prevent his licensed social worker and ex-wife from disclosing confidential communications he made to his social worker for the purpose of diagnosis and treatment; the exception set forth in Rule 11-504D(4) NMRA did not prevent defendant from invoking the privilege because neither his social worker nor ex-wife was subject to the reporting requirement set forth in the statute. State v. Strauch, 2014-NMCA-020, 317 P.3d 878, 2013 N.M. App. LEXIS 113 (N.M. Ct. App. 2013), rev'd, 2015-NMSC-009, 345 P.3d 317, 2015 N.M. LEXIS 53 (N.M. 2015).
A teacher properly reported the possibility that her student was being physically abused to the school principal, who reported it to the State Human Services Department under former 32-1-15 NMSA 1978 (now 32A-4-3 NMSA 1978); where the child wrote a note expressing fear and later spoke to teacher of earlier violence, there was a “reasonable suspicion” that a child was being abused. Oldfield v. Benavidez, 1994-NMSC-006, 116 N.M. 785, 867 P.2d 1167, 1994 N.M. LEXIS 36 (N.M. 1994).
Former 32-1-15D NMSA 1978 imposed the substantive requirement on the health services department of protecting children who may be abused or neglected, but did not confer a substantive right to consultation on the child care centers whose activities are being investigated. Rice v. Vigil, 642 F. Supp. 212, 1986 U.S. Dist. LEXIS 22714 (D.N.M. 1986), aff'd, 854 F.2d 1323, 1988 U.S. App. LEXIS 19134 (10th Cir. N.M. 1988).
Failure to report abuse.
Evidence and the record properly supported the findings and conclusions of a Department of Human Services in terminating the employment of an office manager and a supervisor in its social services division because the employees failed to report an incident of the sexual abuse of a child to a district attorney pursuant to former 32-1-15 NMSA 1978 (now 32A-4-3 NMSA 1978), and they failed to supervise the safety and well-being of children entrusted to the Department pursuant to 9-8-13 and 9-8-14 NMSA 1978. Perkins v. Department of Human Servs., 1987-NMCA-148, 106 N.M. 651, 748 P.2d 24, 1987 N.M. App. LEXIS 801 (N.M. Ct. App. 1987).
Liability.
In determining whether state officials were entitled to qualified immunity from a claim under 42 U.S.C.S. 1983, the first issue was whether the plaintiff had alleged the deprivation of an actual constitutional right, and a plaintiff who alleged that the conduct of defendant correctional officers violated 13-9-12 to 13-9-14, 1953 Comp. (now 32A-4-3 NMSA 1978) had not satisfied the threshold requirement because, first, 3-9-12 to 13-9-14, 1953 Comp. (now 32A-4-3 NMSA 1978) did not require anyone to report incidents of child abuse and stated only that the listed persons “may report” such matters, second, the persons listed were health professionals, teachers, social workers, and clergy, and correctional officers, such as the defendants, were not mentioned, and third, and most importantly, 42 U.S.C.S. 1983 protected against violations of federal law only, not violations of state law; the corrections officials were entitled to summary judgment on the ground of qualified immunity and the same qualified immunity protected them from any further discovery. Doe v. Leach, 1999-NMCA-117, 128 N.M. 28, 988 P.2d 1252, 1999 N.M. App. LEXIS 91 (N.M. Ct. App.), cert. denied, 128 N.M. 148, 990 P.2d 822, 1999 N.M. LEXIS 241 (N.M. 1999).
Privilege.
Where defendant was charged with sexually abusing his daughter, as both privately and publicly employed social workers are mandatory child abuse reporters under this section, his statements to a social worker in private counseling sessions were not protected from disclosure under the exception to the physician-patient and psychotherapist-patient evidentiary privilege of Rule 11-504(D)(4) NMRA. State v. Strauch, 2015-NMSC-009, 345 P.3d 317, 2015 N.M. LEXIS 53 (N.M. 2015).
Research References and Practice Aids
Cross references.
Licensure of health facilities; hearings; appeals, 24-1-5 NMSA 1978.
Admissibility of report in evidence; immunity of reporting person; investigation of report, 32A-4-5 NMSA 1978.
New Mexico Law Review.
Article: Salt in the Wounds: Why Attorneys Should Not Be Mandated Reporters of Child Abuse, Adrienne Jennings Lockie, 36 N.M. L. Rev. 125 (2006).
Comment: Sex, Lies, And Lawsuits: A New Mexico Physician’s Duty To Warn Third Parties Who Unknowingly May Be At Risk Of Contracting HIV From A Patient, Jake Taylor, 26 N.M. L. Rev. 481 (1996).