N.M. Stat. § 32A-4-1 (2026)

Chapter 32A, Article 4 NMSA 1978 may be cited as the "Abuse and Neglect Act".

History: 1978 Comp., § 32A-4-1, enacted by Laws 1993, ch. 77, § 95; 2016, ch. 54, §
1.

                                    ANNOTATIONS

Cross references. — For provisions of Safe Haven for Infants Act, see 24-22-1 NMSA
1978 et seq.

For abuse of a child, see 30-6-1 NMSA 1978.

For the Kinship Guardianship Act, see 40-10B-1 NMSA 1978 et seq.

The 2016 amendment, effective May 18, 2016, after "Chapter", deleted "32" and added
"32A".

Act not unconstitutionally vague. — Abuse and Neglect Act is not unconstitutionally
vague. State ex rel. Children, Youth & Families Dept. v. Shawna C., 2005-NMCA-066,
137 N.M. 687, 114 P.3d 367.

Presumption of retroactivity. — Based on the importance of the especially significant
interests at stake for children and parents in cases involving the Abuse and Neglect Act,
Chapter 32A, Article 4 NMSA 1978, as well as the need to eliminate disparate outcomes
in such cases simply by virtue of the position of a case on the judicial docket, the
presumption of retroactivity applies to abuse and neglect cases. State ex rel. CYFD v.
Ruben C., 2022-NMCA-063, cert. granted.

Clarifications of New Mexico law regarding standards of proof in termination of
parental rights cases subject to the federal Indian Child Welfare Act. — The New
Mexico court of appeals decision in State ex rel. Children, Youth & Families Dep’t v.
Maisie Y., 2021-NMCA-023 (Maisie Y.), which held that in cases subject to the federal
Indian Child Welfare Act (ICWA), all grounds to terminate parental rights, including
determinations of abuse and neglect, must be proven beyond a reasonable doubt,
judicial notice of prior adjudications of abuse and neglect made under the clear and
convincing evidence standard, without more, is insufficient, and the active efforts
requirement of the ICWA must be proven beyond a reasonable doubt, will be applied
retroactively. State ex rel. CYFD v. Ruben C., 2022-NMCA-063, cert. granted.

Removal of an Indian child from the custody of their guardian requires a finding
that active efforts designed to prevent the breakup of the Indian family have been
made. — When a petition for abuse and neglect seeking removal of an Indian child
from the custody of their parent or legal guardian is filed by CYFD, the district court
must make findings required by the federal Indian Child Welfare Act (ICWA) at the
adjudicatory hearing, including the finding that active efforts designed to prevent the
breakup of the Indian family have been made. The ICWA regulations and the legislative
history of ICWA require remedial active efforts be made prior to initiating a placement
and must be designed to prevent having to take a child into state custody. The
definition of active efforts focuses on the timeliness of those efforts, provides that they
be directed to maintaining the Indian child with their family, or, if a separation has
already occurred, reuniting the child with their family, and specifies that efforts be
conducted, to the maximum extent possible, in partnership with the Indian child's tribe
and extended family. Active assistance in utilizing, accessing, and overcoming barriers
to services is required regardless of the stage of the proceedings, and to be effective,
remedial efforts must be undertaken promptly upon referral to the agency for abuse or
neglect. State ex rel. CYFD v. Eric E., 2024-NMCA-026.

The district court's finding that the active efforts required by the federal Indian
Child Welfare Act were made by CYFD prior to taking the Indian child into
involuntary state custody was not supported by substantial evidence. — The
district court's finding that CYFD made the active efforts required by the federal Indian
Child Welfare Act prior to taking the Indian child into involuntary state custody was not
supported by substantial evidence where the record established that CYFD's efforts
were not tailored to the goal of restoring the child to his parents, to his extended Indian
family, or to his tribal community; CYFD failed to actively search for the child's father
and prepare him to reunite with the child, it failed to contact and obtain assistance from
the child's tribe, it failed to provide any assistance to the child's guardians in freeing the
child for return to a parent or placement with an extended family member, and it offered
no evidence to show that it had made active efforts to place the child in the treatment
foster care recommended by the residential treatment center where the child had been
placed. State ex rel. CYFD v. Eric E., 2024-NMCA-026.

Application of higher standards of proof required by State ex rel. CYFD v. Maisie
Y. — Where father’s parental rights were terminated prior to the New Mexico court of
appeals decision in State ex rel. Children, Youth & Families Dep’t v. Maisie Y., 2021-
NMCA-023 (Maisie Y.), which held that in cases subject to the federal Indian Child
Welfare Act (ICWA), all grounds to terminate parental rights, including determinations of
abuse and neglect, must be proven beyond a reasonable doubt, judicial notice of prior
adjudications of abuse and neglect made under the clear and convincing evidence
standard, without more, is insufficient, and the active efforts requirement of the ICWA
must be proven beyond a reasonable doubt, the district court’s termination of father's
parental rights required reversal, because it was possible that CYFD may not have met
the higher standards of proof required by Maisie Y. State ex rel. CYFD v. Ruben C.,
2022-NMCA-063, cert. granted.

Double jeopardy. — The New Mexico constitution and double jeopardy statute, Section
30-1-10 NMSA 1978, do not prohibit the state from prosecuting defendants for child
abuse because CYFD previously investigated defendants for child abuse and the tribal
court previously held a custody hearing on the same issues. In the previous
proceedings, the civil sanctions imposed on the defendant were remedial rather than
punitive. State v. Diggs, 2009-NMCA-099, 147 N.M. 122, 217 P.3d 608, cert. denied,
2009-NMCERT-007, 147 N.M. 362, 223 P.3d 359.

Because the statutory scheme of the Abuse and Neglect Act is unitary in nature,
the process due at each stage should be evaluated in light of the process received
throughout the proceedings. State ex rel. Children, Youth & Families Dep’t. v. Maria C.,
2004-NMCA-083, 136 N.M. 53, 94 P.3d 796.

Parent has constitutional right to fair notice and opportunity to participate in all
critical stages of abuse and neglect proceedings. State ex rel. Children, Youth &
Families Dep’t. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796.

District court has affirmative duty to ensure the parents’ due process rights are
protected from the initiation of abuse and neglect proceedings. State ex rel. Children,
Youth & Families Dep’t. v. Maria C., 2004-NMCA-083, 136 N.M. 53, 94 P.3d 796.