A. In any proceeding alleging neglect or abuse under the Children’s Code [32A-1-1 NMSA 1978] resulting from a report required by Section 32A-4-3 NMSA 1978 or in any proceeding in which that report or any of its contents are sought to be introduced in evidence, the report or its contents or any other facts related thereto or to the condition of the child who is the subject of the report shall not be excluded on the ground that the matter is or may be the subject of a physician-patient privilege or similar privilege or rule against disclosure.
B. Anyone reporting an instance of alleged child neglect or abuse or participating in a judicial proceeding brought as a result of a report required by Section 32A-4-3 NMSA 1978 is presumed to be acting in good faith and shall be immune from liability, civil or criminal, that might otherwise be incurred or imposed by the law, unless the person acted in bad faith or with malicious purpose.
C. After properly verifying the identity of the public official, any school personnel or other person who has the duty to report child abuse pursuant to Section 32A-4-3 NMSA 1978 shall permit a member of a law enforcement agency, including tribal police officers, an employee of the district attorney’s office, an investigative interviewer for a program described in Subsection E of this section or an employee of the department, to interview a child with respect to a report without the permission of the child’s parent or guardian. Any person permitting an interview pursuant to this subsection is presumed to be acting in good faith and shall be immune from liability, civil or criminal, that might otherwise be incurred or imposed by law, unless the person acted in bad faith or with malicious purpose.
D. An investigation may be conducted by law enforcement, the district attorney’s office, a program described in Subsection E of this section and the department. Interviews shall be conducted in a manner and place that protects the child and family from unnecessary trauma and embarrassment. The investigating entity shall conduct the investigation in a manner that will protect the privacy of the child and the family, with the paramount consideration being the safety of the child. All interactions with child victims and child witnesses shall be conducted in a child-sensitive manner, taking into consideration the special needs of the child and the child’s abilities, age and intellectual maturity. The interviews shall be conducted in a place where the child feels secure and in a language that the child uses and understands.
E. If a community has a program for child abuse investigation that includes an investigation interview of the alleged victim or child witness, the investigation may be conducted at a site designated by the community program. The child abuse victim or child witness shall, when possible, be interviewed in an environment where the alleged abuse perpetrator will not be present.
F. Prior to interviewing a child, the department shall notify the parent or guardian of the child who is being interviewed, unless the department determines that notification would adversely affect the safety of the child about whom the report has been made or compromise the investigation.
HISTORY:
1978 32A-4-5, enacted by Laws 1993, ch. 77, § 99; 1995, ch. 206, § 22; 2005, ch. 189, § 40; 2009, ch. 239, § 34.
Effect of amendments.
The 2005 amendment, effective June 17, 2005, corrected the section reference in Subsections A through C; in Subsection C, deleted “or custodian” from the end of the first sentence; in Subsection D, divided and rewrote the first sentence, which formerly read: “All law enforcement personnel, an employee of the district attorney’s office, an investigative interviewer for a program described in Subsection E of this section and all employees of the department shall conduct interviews in a manner and place that protects the child and family from unnecessary trauma and embarrassment”, and added the last sentence; and added Subsection F.
The 2009 amendment, effective July 1, 2009, added “All interactions with child victims and child witnesses shall be conducted in a child-sensitive manner, taking into consideration the special needs of the child and the child’s abilities, age and intellectual maturity. The interviews shall be conducted in a place where the child feels secure and in a language that the child uses and understands” in (D); and in (E), added “or child witness” in the first sentence and added the second sentence.
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.
Plaintiff failed to substantiate an assertion that application of various forms of immunity to plaintiff’s claims, including immunity under Subsection B for reporting incidents of child abuse, denied plaintiff’s constitutional rights, including the right to a jury trial; official immunity is inherently constitutional. Ysais v. Richardson, 603 F.3d 1175, 2010 U.S. App. LEXIS 8741 (10th Cir. N.M.), cert. denied, 562 U.S. 868, 131 S. Ct. 163, 178 L. Ed. 2d 97, 2010 U.S. LEXIS 6753 (U.S. 2010).
Evidence.
—Admissible.
32A-4-3 and 32A-4-5A NMSA 1978, require counselors and others to report abuse or neglect to an appropriate authority and to remove any privilege that might otherwise apply; in a child protection action, the trial court therefore did not abuse its discretion by permitting the introduction of records and testimony regarding the child’s counseling sessions. 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).
Notes to Unpublished Decisions
Immunity.
Unpublished decision: Child who was allegedly abused by an acquaintance was not an “abused child” within the meaning of 32A-4-2B(3) NMSA 1978; therefore, this section 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).