2023 New Mexico Statutes › Chapter 32A - Children's Code › Article 4 - Child Abuse and Neglect › Section 32A-4-3 - Duty to report child abuse and child neglect; responsibility to investigate child abuse or neglect; penalty; notification of plan of care.

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 school employee; 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.
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.
G. A finding that a pregnant woman is using or abusing drugs made pursuant to an interview, self-report, clinical observation or routine toxicology screen shall not alone form a sufficient basis to report child abuse or neglect to the department pursuant to Subsection A of this section. A volunteer, contractor or staff of a hospital or freestanding birthing center shall not make a report based solely on that finding and shall make a notification pursuant to Subsection H of this section. Nothing in this subsection shall be construed to prevent a person from reporting to the department a reasonable suspicion that a child is an abused or neglected child based on other criteria as defined by Section 32A-4-2 NMSA 1978, or a combination of criteria that includes a finding pursuant to this subsection.
H. A volunteer, contractor or staff of a hospital or freestanding birthing center shall:
(1) complete a written plan of care for a substance-exposed newborn as provided for by department rule and the Children's Code [Chapter 32A NMSA 1978]; and
(2) provide notification to the department. Notification by a health care provider pursuant to this paragraph shall not be construed as a report of child abuse or neglect.
I. As used in this section, "notification" means informing the department that a substance-exposed newborn was born and providing a copy of the plan of care that was created for the child; provided that notification shall comply with federal guidelines and shall not constitute a report of child abuse or neglect.
J. As used in this section, "school employee" includes employees of a school district or a public school.
History:
1978 Comp., § 32A-4-3, enacted by Laws 1993, ch. 77, § 97; 1997, ch. 34, § 2; 2003, ch. 189, § 1; 2005, ch. 189, § 38; 2019, ch. 190, § 2; 2021, ch. 94, § 10.
ANNOTATIONS
The 2021 amendment,
effective June 18, 2021, defined "school employee" as used in this section; in Subsection A, after "visiting nurse; a", deleted "schoolteacher; a school official" and added "school employee"; and added Subsection J.
The 2019 amendment,
effective June 14, 2019, provided that a finding that a pregnant woman is using or abusing drugs shall not alone form a sufficient basis to report child abuse or neglect, required volunteers, contractors or staff of a hospital or freestanding birthing center to complete a written plan of care for a substance-exposed newborn and to provide notification to the children, youth and families department that a substance-exposed newborn was born; in the section heading, after "penalty", added "notification of plan of care"; and added Subsections G through I.
The 2005 amendment,
effective June 17, 2005, deleted the requirement in Subsections A and B that reports be made to the department office in the county where the child resides; and provided in Subsections C and D that a law enforcement officer trained in the investigation of child abuse and neglect is responsible for investigating reports of abuse and neglect.
The 2003 amendment,
effective July 1, 2003, in Subsection A, deleted "but not limited to" near the beginning, inserted "or a member of the clergy who has information that is not privileged as a matter of law" following "an official capacity"; substituted "agency" for "agencies" in Paragaraph A(3); substituted "A department office" for "Any office of the department" preceding "receiving a report" in Subsection B.
The 1997 amendment,
effective July 1, 1997, inserted "responsibility to investigate child abuse or neglect" in the section heading, deleted "or persons" following "person" in the next-to-last sentence in Subsection B, substituted "alleged abused" for "abused" in the second sentence in Subsection C and in the second sentence in Subsection D, added the third sentence in Subsection C, deleted former Subsection D relating to abuse or neglect of a child while in the care of a child care facility or family day care home, redesignated former Subsections E to G as Subsections D to F, and substituted "by local law enforcement" for "through the office of the district attorney" at the end of the first sentence in Subsection D.
Decisions under prior law.
— In light of the similarity of the provisions, annotations decided under former Section 32-1-15 NMSA 1978 have been included in the annotations to this section.
Scope of duty to report child abuse.
— The child abuse reporting requirement of this section expressly applies to "every person," and although the statute lists specific occupational groups, the language of the statute expressly emphasizes that the list is not exclusive.
State v. Strauch
, 2015-NMSC-009,
rev'g
2014-NMCA-020.
Statements made by an alleged child abuser to his social worker therapist, a mandated reporter under the Abuse and Neglect Act, are not protected from disclosure in a court proceeding as a result of the specific exception to the physician-patient and psychotherapist-patient evidentiary privilege in Rule 11-504(D)(4) NMRA, which provides that no privilege shall apply for confidential communications concerning any material that a social worker is required by law to report to a public employee or public agency.
State v. Strauch
, 2015-NMSC-009,
rev'g
2014-NMCA-020.
"Official capacity" defined.
— The language "acting in an official capacity" as set forth in Subsection A of this section is synonymous with acting in a "professional capacity", and is used to distinguish between child abuse knowledge gained through activities in the listed occupations and knowledge gained in other capacities.
State v. Strauch
, 2015-NMSC-009,
rev'g
2014-NMCA-020.
Scope of duty to report child abuse.
— The statutory requirement to report child abuse does not apply to every person, but instead applies to the categories of people listed in Section 32A-4-3(A) NMSA 1979 and other professionals or government officials who are likely to come into contact with abused and neglected children during the course of their professional work.
State v. Strauch
, 2014-NMCA-020, cert. granted, 2014-NMCERT-001.
Duty of social workers to report child abuse.
— The mandatory reporting requirement set forth in Section 32A-4-3(A) NMSA 1978 applies principally to social workers in school and other governmental settings.
State v. Strauch
, 2014-NMCA-020, cert. granted, 2014-NMCERT-001.
Social worker acting as a private mental health provider.
— Where defendant, who was charged with criminal sexual penetration of a minor, made confidential communications to a licensed social worker during private counseling sessions for the purpose of diagnosis and treatment; and defendant's ex-spouse participated in the counseling sessions, defendant had the privilege pursuant to Rule 11-504 NMRA to refuse to disclose and to prevent the social worker and defendant's ex-spouse from disclosing information defendant communicated during the counseling sessions because the mandatory reporting requirement in Section 32A-4-3(A) NMSA did not apply to the social worker or to defendant's ex-spouse.
State v. Strauch
, 2014-NMCA-020, cert. granted, 2014-NMCERT-001.
Dismissals from human services department
[health care authority department] were in accordance with law and supported by substantial evidence, which included the failure to promptly report the alleged sexual abuse of a child to the proper authorities.
Perkins v. Dep't of Human Servs.
, 1987-NMCA-148, 106 N.M. 651, 748 P.2d 24.
Requirement of "consultation" in Section 32-1-15 NMSA 1978 is not due process pre-deprivation hearing requirement,
and plaintiff day-care center operator's constitutional right to due process was not violated by the human services department's [health care authority department's] transfer of state subsidized children to other facilities and suspension of federal funds pending completion of an investigation.
Rice v. Vigil
, 642 F. Supp. 212 (D.N.M. 1986),
aff'd sub nom.
Rice v. N. M.
, 854 F.2d 1323 (10th Cir. 1988).
Law reviews.
— For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973).
For article, "Salt in the Wounds: Why Attorneys Should Not be Mandated Reporters of Child Abuse",
see
36 N.M. L. Rev. 125 (2006).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 42 Am. Jur. 2d Infants § 16.
Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.
Sexual abuse of child by parent as ground for termination of parent's right to child, 58 A.L.R.3d 1074.
Parent's involuntary confinement, or failure to care for child as result thereof, as evincing neglect, unfitness or the like in dependency or divestiture proceeding, 79 A.L.R.3d 417.
Admissibility of expert medical testimony on battered child syndrome, 98 A.L.R.3d 306.
Validity and construction of penal statute prohibiting child abuse, 1 A.L.R.4th 38.
Validity, construction, and application of state statute requiring doctor or other person to report child abuse, 73 A.L.R.4th 782.
Physical examination of child's body for evidence of abuse as violative of Fourth Amendment or as raising Fourth Amendment issue, 93 A.L.R. Fed. 530.
43 C.J.S. Infants § 14.