N.M. Stat. § 32A-4-2 (2026)

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. "educational decision maker" means an individual appointed by the children's
court to attend school meetings and to make decisions about the child's education that a
parent could make under law, including decisions about the child's educational setting,
and the development and implementation of an individual education plan for the child;

   E. "fictive kin" means a person not related by birth, adoption or marriage with whom
a child has an emotionally significant relationship;

    F. "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;
   G. "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 [Chapter 32A NMSA 1978] 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;

    H. "personal identifier information" means a person's name and contact information,
including home or business address, email address or phone number;

    I. "physical abuse" includes any case in which the child suffers strangulation or
suffocation and 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;

  J. "relative" means a person related to another person by birth, adoption or
marriage within the fifth degree of consanguinity;
   K. "sexual abuse" includes criminal sexual contact, incest or criminal sexual
penetration, as those acts are defined by state law;

   L. "sexual exploitation" includes:

       (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;

    M. "sibling" means a brother or sister having one or both parents in common by birth
or adoption;

   N. "strangulation" has the same meaning as set forth in Section 30-3-11 NMSA
1978;

   O. "suffocation" has the same meaning as set forth in Section 30-3-11 NMSA 1978;
and

    P. "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 Comp., § 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; 2017, ch. 64, § 2; 2018, ch.
30, § 3; 2023, ch. 90, § 20; 2025, ch. 156, § 7.

                                     ANNOTATIONS

The 2025 amendment, effective June 20, 2025, defined the term "personal identifier
information" as used in the Abuse and Neglect Act; added a new Subsection H and
redesignated former Subsections H through O as Subsections I through P, respectively.

The 2023 amendment, effective July 1. 2023, left the provisions of this section
unamended.

The 2018 amendment, effective July 1, 2018, included "strangulation" and "suffocation"
within the definition of "physical abuse", and added definitions of "strangulation" and
"suffocation" to the Abuse and Neglect Act; in Subsection H, after "in which the child",
added "suffers strangulation or suffocation and any case in which the child"; and added
Subsections M and N.
The 2017 amendment, effective June 16, 2017, defined "educational decision maker"
as used in the Abuse and Neglect Act; added a new Subsection D and redesignated
former Subsections D through L as Subsections E through M, respectively; and in
Subsections H, J and K, after "includes", deleted "but is not limited to".

The 2016 amendment, effective May 18, 2016, added "fictive kin", "relative" and
"sibling" to the definitions section of the Abuse and Neglect Act; added new Subsection
D and redesignated former Subsections D, E and F as Subsections E, F and G,
respectively; added new Subsection H and redesignated former Subsections G and H
as Subsections I and J, respectively; and added new Subsection K and redesignated
the succeeding subsection accordingly.

The 2009 amendment, effective July 1, 2009, added Subsection I.

The 1999 amendment, effective July 1, 1999, deleted "but is not limited to" following
"includes" in the introductory language of Subsection A; in Subsection B, in Paragraph
(1), inserted "has suffered or who" and added the language beginning "because of" to
the end, and in Paragraph (2), inserted "or caused"; added Subsections C and D and
redesignated the subsequent subsections accordingly; in Subsection E, in Paragraph
(2), substituted "failure" for "neglect", and in Paragraph (4), deleted "other" following
"hospitalization or".

The 1997 amendment, effective July 1, 1997, added Paragraph B(1) and redesignated
former Paragraphs B(1) to (4) as Paragraphs B(2) to (5).

Decisions under prior law. — In light of the similarity of the provisions, annotations
decided under former Section 32-1-3 NMSA 1978 have been included in the
annotations to this section.

New Mexico's legal standard for neglect under 32A-4-2(G)(2) NMSA 1978. —
Before a child is adjudicated neglected, the children, youth and families department
must provide clear and convincing evidence that the child is without proper parental
care and control necessary for the child's well-being and that the child's lack of proper
parental care and control is because of the faults or habits of the child's parent or the
failure or refusal of the child's parent to provide the necessary care or control. The
legislature intended that to find a child to be without proper parental care and control
necessary for the child's well-being such that the child must be removed from the family,
the child must be subjected to circumstances that create a serious risk to the child's
mental or physical health and safety, a risk that is likely to result in important or
dangerous consequences for the child. State ex rel. CYFD v. Heather S., 2025-NMSC-
002, rev'g A-1-CA-38614, mem. op. (N.M. Ct. App. July 6, 2021) (nonprecedential).

The district court may aggregate evidence to determine whether the children,
youth and families department has proven by clear and convincing evidence that
a child is neglected. — While 32A-4-2(G)(2) NMSA 1978 does not contain express
language permitting aggregation, the enumeration of multiple areas of proper parental
care and control indicate that the district court is allowed to consider together evidence
bearing on different areas of proper parental care and control in its determination of
neglect. Where there are multiple failures to provide proper parental care or control,
which alone may have been insufficient to rise to the level of neglect, the combined
effect of these failures may be sufficient to constitute neglect under 32A-4-2(G)(2)
NMSA 1978, but it remains the children, youth and families department's burden to
provide by clear and convincing evidence that the combined effect left the child without
proper parental care and control necessary for the child's well-being, and the child's
neglect can be attributed to the fault or failure of the parent. State ex rel. CYFD v.
Heather S., 2025-NMSC-002, rev'g A-1-CA-38614, mem. op. (N.M. Ct. App. July 6,
2021) (nonprecedential).

Substantial evidence of a clear and convincing nature did not support the district
court's adjudication of child as a neglected child as a matter of law. — In an abuse
and neglect proceeding, the district court's findings that mother failed to meet child's
medical needs, failed to protect child from domestic violence, failed to maintain a safe
and stable home, and failed to meet child's educational needs were not supported by
substantial evidence, because the evidence did not establish by clear and convincing
evidence that child was without proper parental care and control necessary to address
his medical needs but instead showed that mother consistently sought out support and
treatment for child up until the time the children, youth and families department (CYFD)
took child into custody, the district court was presented with a single incident of
domestic violence for which child was not present and there was no evidence of any
ongoing abuse, the CYFD failed to explain how any risk of harm rose to the level of a
serious risk that was likely to result in important and dangerous consequences to child
rather than a mere speculation of harm, and CYFD did not present clear and convincing
evidence to show that mother's failure to satisfy child's educational needs was mother's
fault and not due to circumstances beyond her control. State ex rel. CYFD v. Heather
S., 2025-NMSC-002, rev'g A-1-CA-38614, mem. op. (N.M. Ct. App. July 6, 2021)
(nonprecedential).

The district court's adjudication of child as neglected was not supported by
substantial evidence of a clear and convincing nature. — Where the children, youth
and families department (CYFD) initiated an investigation, which led to the filing of a
petition for neglect and abuse against parents, based on a report from the hospital that
the child's mother had tested positive for drug use, and where, during a home visit, the
CYFD investigator observed cockroaches on the floor, the walls, the cabinets, the bed,
the legs of the child's changing table, and on the table where the child's bottles and
formula were kept, and where, following the establishment of a safety plan where the
parents were required to address the condition of the home, the CYFD investigator,
during a second home visit, observed that the cockroach situation had worsened,
resulting in the child being taken into CYFD custody even though the child had not been
in the parents' home during the second inspection and had remained safely at a
relative's house throughout this period, and where, based on the CYFD investigator's
testimony, the district court found clear and convincing evidence of neglect by the child's
father, the district court's adjudication of neglect was not supported by substantial
evidence of a clear and convincing nature where CYFD failed to establish that the child
was subjected to circumstances that created a serious risk to the child's mental or
physical health and safety or that any lack of proper parental care and control was
because of the faults and habits of the father. State ex rel. CYFD v. Anthony D., 2025-
NMCA-015.

Standard of proof of abuse and neglect at adjudicatory hearing. — Where father’s
parental rights to his three children were terminated following the district court’s
adjudication of neglect, and where father argued that the federal Indian Child Welfare
Act of 1978 (ICWA) and New Mexico state law require the district court at the
adjudicatory hearing to find that father abused or neglected children by evidence
beyond a reasonable doubt, rather than by clear and convincing evidence, the district
court did not err in applying a clear and convincing standard of proof at the adjudicatory
hearing, because proof of neglect or abuse at an adjudicatory hearing in an ICWA case
in New Mexico is by clear and convincing evidence, and in this case, the district court
properly found neglect by father under 32A-4-2(G)(2) NMSA 1978, at the adjudicatory
hearing, applying the clear and convincing evidence standard of proof, and in contrast,
made its finding of neglect at the termination of parental rights (TPR) hearing by
evidence beyond a reasonable doubt. There was no error in these finding or in the
standard of proof applied by the district court at either the adjudicatory hearing or the
TPR hearing. CYFD v. James M., 2023-NMCA-025, cert. denied.

Proof of perpetrator of child abuse. — Subsection B of Section 32A-4-2 NMSA 1978
does not require a specific determination of which parent’s actions or inactions caused a
child to be put at risk when adjudicating the child as abused and evidence that the
abuse was perpetrated by either parent is sufficient for a court to conclude that the
action or inaction of a parent caused the abuse and bring the case within the scope of
the statute. State ex rel. Children, Youth and Families Dep’t v. Carl C., 2012-NMCA-
065, 281 P.3d 1242.

Where the parents of a child were the primary caregivers of the child; the court found by
clear and convincing evidence that one parent or the other parent, or both, had caused
severe physical injuries to the child; and the court could not determine which parent
specifically had been the perpetrator, the court did not err in adjudicating the child as
abused without determining which parent actually caused the injuries suffered by the
child. State ex rel. Children, Youth and Families Dep’t v. Carl C., 2012-NMCA-065, 281
P.3d 1242.

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.

Sufficient evidence of neglect. — Where the children lived with the mother; the father
and the mother failed to see to the well-being, needs and support of the children; the
father knew about the mother’s propensities for drug abuse and domestic violence and
knew or should have known about the children, youth and families department
involvement with the children and the placement of the children with fictive kin; the
father indicated to the department that he had no concerns regarding the care of the
children; the father failed to respond to messages from the department and failed to
appear at meetings with the department; the father was delinquent with child support;
the father visited the children only once or twice a month; and the father made no effort
to have the children live with him, the evidence was clear and convincing that the father
neglected the children. State ex rel. Children, Youth & Families Dep't v. Cosme V.,
2009-NMCA-094, 146 N.M. 809, 215 P.3d 747, cert. denied, 2009-NMCERT-007, 147
N.M. 361, 223 P.3d 358.

Sufficient evidence of neglect based on abandonment. — Where father was found
by the district court to have neglected his child by abandoning her, and where father
claimed that his lack of knowledge that the child's mother, who had custody of the
infant, would neglect her, and that his lack of certain knowledge, through DNA testing,
that he in fact was the father of the child negated any conclusion of abandonment under
32A-4-2(A)(2) NMSA 1978, the district court's determination that father had abandoned
and thus neglected the child were supported by clear and convincing evidence, where
the evidence demonstrated that father left the child in the care of mother without
provision for support or communication, that the child was neglected while in mother's
care, and that father was on notice and acknowledged that he was the father of the
child. State ex rel. CYFD v. Michael H., 2018-NMCA-032, cert. denied.

Insufficient evidence of neglect. — Evidence that the newborn child’s initial toxicology
test was positive, that the mother admitted to using narcotics and marijuana during her
pregnancy, and that the mother left the child in the care of nurses while she left the
hospital to smoke was insufficient to make the child neglected because of the mother’s
intentional or negligent disregard of the child’s wellbeing and proper needs. State ex
rel., Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141 N.M. 299,
154 P.3d 674.

Evidence that the mother of a newborn child had a long history of drug abuse, a criminal
history and a history of violence was insufficient to show that the mother was actually
unable to provide proper parental care or discharge her responsibilities to the child.
State ex rel., Children, Youth & Families Dep't v. Amanda H., 2007-NMCA-029, 141
N.M. 299, 154 P.3d 674.

Insufficient evidence of mental disorder or incapacity. — Where the legislature
intended mental incapacity to encompass those circumstances in which an individual,
due to an intellectual disability, is unable, as opposed to unwilling, to discharge his or
her responsibilities to a child, the district court’s conclusion that child was neglected
pursuant to 32A-4-2E(4) NMSA 1978 was not supported by the evidence when the
district court did not make any findings that mother suffered from a mental disorder or
illness, nor did it find that mother suffered from mental incapacity, but explicitly found
that mother was capable of learning and mastering information, but that her defiant
attitude was affecting her ability to recognize the conditions she needed to improve in
order to safely parent child. The district court erred in concluding that child was
neglected pursuant to 32A-4-2E(4) and in concluding that the children, youth and
families department established by clear and convincing evidence that a mental
disorder or incapacity caused mother’s inability to discharge her responsibilities to child.
State ex rel. CYFD v. Christina L., 2015-NMCA-115.

"Abandonment". — Parent abandoned children when parent left children in the care of
their other parent, when the parent knew about drugs and had neglected the children;
parent offered very little support to children before becoming incarcerated and then
squandered any opportunity to be present in the children’s lives by violating probation
and becoming incarcerated; and while in prison, parent made no attempts to contact or
support the children or to ensure their safety. State ex rel. Children, Youth & Families
Dep’t v. William M., 2007-NMCA-055, 141 N.M. 705, 161 P.3d 262.

"Abused child". — Prior to its amendment in 1997, the definition of "abused child," did
not permit the children's court to adjudicate a child abused or neglected where there
was no evidence that the parent, guardian or custodian was responsible for the abuse
or neglect. State ex rel. Children, Youth & Families Dep't v. Vincent L., 1998-NMCA-
089, 125 N.M. 452, 963 P.2d 529, cert. denied, 125 N.M. 654, 964 P.2d 818.

Proof that a child's sibling was abused, in and of itself, does not render the child
endangered. — Where parents appealed the district court's adjudication of abuse
against parent's son (child), based on the endangerment definition of "abused child" in §
32A-4-2(B)(4) NMSA 1978, and on the court's finding of aggravated circumstances
under § 32A-4-2(C)(1), the district court erred in its finding of abuse, because the
children, youth and families department (CYFD) did not meet its burden to prove by
clear and convincing evidence that the parents' child was an "abused child" under §
32A-4-2(B)(4). CYFD's contention that the child's sibling was physically abused in and
of itself is insufficient to support a finding that the child was "abused" or is endangered
under § 32A-4-2(B)(4). CYFD v. Carmella M., 2022-NMCA-052.

"Abused and neglected". — Where parent left the children unattended for long
periods of time, exposed them to dangerous situations, failed to understand their
physical and emotional needs, failed to empathize with their feelings, was self-centered
in the parent’s interactions with them, exposed them to domestic violence, exposed
them to substance abuse, showed an indifference to their needs in favor of the parent’s
own needs, and placed them with inappropriate caretakers, the children were abused
and neglected. In re Termination of Parental Rights of Eventyr J., 1995-NMCA-087, 120
N.M. 463, 902 P.2d 1066 (Ct. 108), cert. denied 120 N.M. 394, 902 P.2d 76.

"Aggravated circumstances". — Sections 32A-4-2C, 32A-4-22C, and 32A-4-28B(2)
NMSA 1978 are constitutional facially and as applied to a mother, whose parental rights
were terminated without the state making reasonable efforts toward family reunification,
where the mother had previously had parental rights terminated as to another child and
no progress was evident in the mother's efforts to kick a 4-year drug abuse problem.
State ex rel. Children, Youth & Families Dep't v. Amy B., 2003-NMCA-017, 133 N.M.
136, 61 P.3d 845.
Where parent left the children in the care of another, was involved in criminal activity,
became unavailable due to parent’s incarceration, substance abuse was present in the
home, and parent failed to maintain a relationship with the children, aggravating
circumstances existed. State ex rel. Children, Youth & Families Dep’t v. William M.,
2007-NMCA-055, 161 P.3d 262.

Where mother emphasized that she has not abused child and has not had an
opportunity to actually demonstrate her parenting skills with child, and while true, the
court noted that she has had an opportunity to demonstrate her abilities with five older
children, and her admission of involuntary termination of her parental rights to those
older children operates as clear and convincing proof of that fact, while this fact is not
determinative for a finding of abuse and neglect, it is considered an aggravated
circumstance under the Abuse and Neglect Act in the context of termination of parental
rights. State ex rel. Children, Youth & Families Dept. v. Shawna C., 2005-NMCA-066,
137 N.M. 687, 114 P.3d 367.

Stepfather as "custodian". — A stepfather meets the definition of "custodian" for
purposes of the court's subject matter jurisdiction over him in a proceeding on a petition
alleging abuse or neglect of a child. In re Candice Y., 2000-NMCA-035, 128 N.M. 813,
999 P.2d 1045, cert. denied, 129 N.M. 207, 4 P.3d 35.

"Neglected". — Parent neglected children through parent's failure to be involved in the
children's lives prior to parent's incarceration, failure to provide a safe and stable home
by dealing drugs in the home, parent's decision to leave the children's home when they
were very young, parent's decision to violate the terms of parent's probation resulting in
parent's incarceration, and parent's failure to provide for the children or protect them
from the other parent's neglect both prior to and during parent's incarceration. State ex
rel. Children, Youth & Families Dep't v. William M., 2007-NMCA-055, 141 N.M. 765, 161
P.3d 262.

Although low IQ, mental disability, or mental illness alone are not sufficient grounds for
a finding of abuse or neglect where mother was unable to effectively parent due to her
mental disorder and incapacity, this finding meets the definition of neglect under
Subsection E(4) of this section. State ex rel. Children, Youth & Families Dept. v.
Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367.

Evidence that a mother left her children in the care at their grandparents presented
insufficient evidence to prove that mother was unfit to care for her children and failed to
show that the children were "neglected" under Paragraph E(2), where mother left the
children with the grandparents for extended periods of time but she visited them and
had them to her various residences on a regular basis. In re Guardianship of Ashleigh
R., 2002-NMCA-103, 132 N.M. 772, 55 P.3d 984, cert. denied, 132 N.M. 732, 55 P.3d
428.

Neglect of psychological needs. — The New Mexico Children's Code's definition of a
"neglected child" is subject to broad interpretation and arguably encompasses situations
where the child's psychological needs are neglected. Martinez v. Mafchir, 35 F.3d 1486
(10th Cir. 1994).

Definition of "sexual abuse" constitutional. — The definition of "sexual abuse" in this
section is not unconstitutionally vague as applied to defendant's conduct which fit
squarely within the specifically prohibited conduct, namely criminal sexual contact of a
minor. In re Candice Y., 2000-NMCA-035, 128 N.M. 813, 999 P.2d 1045, cert. denied,
129 N.M. 207, 4 P.3d 35.

Retardation evidence not required for ruling on neglect. — In a neglect proceeding,
evidence that a child is severely retarded is not required for a ruling that the child is
neglected. State ex rel. Health & Soc. Servs. Dep't v. Natural Father, 1979-NMCA-090,
93 N.M. 222, 598 P.2d 1182.

Incarceration. — Even though incarceration alone is not an appropriate reason to
terminate parental rights, where the father was convicted of the murder of the mother,
his subsequent long-term incarceration was sufficient to establish that the child was
neglected, and that termination of his parental rights was justified. State ex rel. Children,
Youth & Families Dep't v. Joe R., 1997-NMSC-038, 123 N.M. 711, 945 P.2d 76.

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, "Treating Children Under the New Mexico Mental Health and Developmental
Disabilities Code," see 10 N.M.L. Rev. 279 (1980).

For note, "Children's Code - Neglect - State ex rel. Health & Social Services Department
v. Natural Father," see 12 N.M.L. Rev. 505 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Power of court or other public agency to
order medical treatment for child over parental objections not based on religious
grounds, 97 A.L.R.3d 421.