New Mexico Statutes
N.M. Stat. § 32A-4-6 (2026)
Taking into custody; penalty.
✓ current as of May 2026
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A. A child may be held or taken into custody:
(1) by a law enforcement officer when the officer has evidence giving rise to
reasonable grounds to believe that the child is abused or neglected and that there is an
immediate threat to the child's safety; provided that the law enforcement officer contacts
the department to enable the department to conduct an on-site safety assessment to
determine whether it is appropriate to take the child into immediate custody, except that
a child may be taken into custody by a law enforcement officer without a protective
services assessment being conducted if:
(a) the child's parent, guardian or custodian has attempted, conspired to
cause or caused great bodily harm to the child or great bodily harm or death to the
child's sibling;
(b) the child's parent, guardian or custodian has attempted, conspired to
cause or caused great bodily harm or death to another parent, guardian or custodian of
the child;
(c) the child has been abandoned;
(d) the child is in need of emergency medical care;
(e) the department is not available to conduct a safety assessment in a timely
manner; or
(f) the child is in imminent risk of abuse; or
(2) by medical personnel when there are reasonable grounds to believe that
the child has been injured as a result of abuse or neglect and that the child may be at
risk of further injury if returned to the child's parent, guardian or custodian. The medical
personnel shall hold the child until a law enforcement officer is available to take custody
of the child pursuant to Paragraph (1) of this subsection.
B. A child shall not be taken into protective custody solely on the grounds that the
child's parent, guardian or custodian refuses to consent to the administration of a
psychotropic medication to the child.
C. When a child is taken into custody by law enforcement, the department is not
compelled to place the child in an out-of-home placement and may release the child to
the child's parent, guardian or custodian.
D. When a child is taken into custody, the department shall make active efforts to
determine whether the child is an Indian child as required pursuant to the Indian Family
Protection Act [32A-28-1 to 32A-28-42 NMSA 1978].
E. Any person who intentionally interferes with protection of a child, as provided by
Subsection A of this section, is guilty of a petty misdemeanor.
History: 1978 Comp., § 32A-4-6, enacted by Laws 1993, ch. 77, § 100; 2005, ch. 189,
§ 41; 2009, ch. 239, § 35; 2015, ch. 51, § 2; 2022, ch. 41, § 48.
ANNOTATIONS
Cross references. — For the federal Indian Child Welfare Act of 1978, see 25 U.S.C. §
1901.
The 2022 amendment, effective July 1, 2022, removed a provision related to Indian
children which is now covered by the Indian Family Protection Act; in Subsection D,
after "shall make", deleted "reasonable" and added "active", and after "Indian child",
added "as required pursuant to the Indian Family Protection Act"; and deleted former
Subsection E and redesignated former Subsection F as Subsection E.
The 2015 amendment, effective June 19, 2015, prohibited the taking of a child into
protective custody solely on the basis that the child’s parent, guardian or custodian
refuses to consent to the administration of a psychotropic medication to the child; in
Subsection A, Paragraph (2), after "Subsection", deleted "A of this section"; and added
Subsection B, and redesignated the succeeding subsections accordingly.
The 2009 amendment, effective July 1, 2009, in Paragraph (1) of Subsection A, after
"when the officer has", deleted language which provided that an officer who has
reasonable grounds to believe a child is suffering from illness or injury as a result of
abuse or neglect or has been abandoned or is in danger could take the child into
custody; and added the remainder of the sentence; added Subparagraphs (a) through
(f) of Paragraph (1) of Subsection A; in Paragraph (2) of Subsection A, in the last
sentence, after "custody of the child", deleted "or until a law enforcement officer has
authorized release of the child to the department", and added the remainder of the
sentence; and added Subsection B.
The 2005 amendment, effective June 17, 2005, in Subsection B, deleted "by the
department".
Qualified immunity. — Social workers and a sheriff who took temporary custody of
children without parental consent or a court order were entitled to qualified immunity
where they had a reasonable belief that a "sufficient emergency existed" to warrant
taking the children into temporary custody. Oldfield v. Benavidez, 1994-NMSC-006, 116
N.M. 785, 867 P.2d 1167.
Warrant required to enter home. — For the purpose of qualified immunity analysis, it
is clearly established that an officer could not enter a home without a warrant absent
exigent circumstances or an emergency situation. Chavez v. Board of Cnty. Comm'rs,
2001-NMCA-065, 130 N.M. 753, 31 P.3d 1027.
Exception to warrant requirement. — Implicit in this section and other New Mexico
authority is the recognition that a law enforcement officer may not intrude on a person's
reasonable expectation of privacy unless the officer has reasonable grounds to believe
that immediate action is necessary to safeguard a child from imminent harm or injury.
Chavez v. Board of Cnty. Comm'rs, 2001-NMCA-065, 130 N.M. 753, 31 P.3d 1027.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Construction and effect of statutes
mandating consideration of, or creating presumptions regarding, domestic violence in
awarding custody of children, 51 A.L.R.5th 241.Notes of Decisions
Cited in 15
cases (3 in the last 5 years), 2001–2024 · leading case: Chavez v. Bd. of Cnty. Commissioners, 31 P.3d 1027 (N.M. Ct. App. 2001).
Chavez v. Bd. of Cnty. Commissioners, 31 P.3d 1027 (N.M. Ct. App. 2001). “See also NMSA 1978, § 32A-4-6(A)(1) (1993) (providing that a child may be held or taken into custody “by a law enforcement officer when the officer has reasonable grounds to believe that the child is suffering from illness or injury as a result of alleged abuse or neglect or has…”
State ex rel. Chidren, Youth & Families Dep't v. Djamila B., 2015 NMSC 003 (N.M. Ct. App. 2014). “, § 32A-4-2 (defining abuse and neglect by parties including guardians); § 32A-4-6(A) (describing conditions under which a child may be taken into custody, including when guardians commit certain acts); § 32A-4-7(A) (listing guardians as persons to whom CYFD may release children…”
State Ex Rel. Child., Youth & Families Dep't v. Benjamin O., 160 P.3d 601 (N.M. Ct. App. 2007). “Relying on these statutory provisions and other applicable case law, we will then describe the procedures to be followed after an adjudication of abuse and neglect is reversed under circumstances similar to the case at bar. {25} New Mexico’s Abuse and Neglect Act applies to…”
State ex rel. Child., Youth & Families Dep't v. Marsalee P., 2013 NMCA 062 (N.M. 2013). “” Section 32A-4-6(C). If the Department determines that the child is an Indian child, the Abuse and Neglect Act requires that the Department give notice ofthe proceedings to the Indian tribe in accordance with ICWA.”
State ex rel. CYFD v. Heather S., 563 P.3d 821 (N.M. 2024). “” NMSA 1978, § 32A-4-6(B) (2015). 5 Ritalin is a psychotropic medication.”
State ex rel. CYFD v. Marsalee P., 2013 NMCA 62 (N.M. Ct. App. 2013). “” Section 32A-4-6(C). If the Department determines that the child is an Indian child, the Abuse and Neglect Act requires that the Department give notice of the proceedings to the Indian tribe in accordance with ICWA.”
State ex rel. Child., Youth & Families Dep't v. Djamila B., 2014 NMCA 045 (N.M. Ct. App. 2014). “NMSA 1978, § 32A-4-2 (2009) (definitions); NMSA 1978, § 32A-4-6 (2009) (including “guardians” when discussing taking children into custody); NMSA 1978, § 32A-4-7(A) (2009) (release from custody); NMSA 1978, § 32A-4-22(A)(5), (B)(1), (D) (2009) (dispositional hearings); NMSA…”
Herrera v. City of Albuquerque, 673 F. Supp. 2d 1307 (D.N.M. 2008). “§ 32A-4-6(A)(l), provides that “[a] child may be held or taken into custody .”
State Ex Rel. CYFD v. Heather S. (N.M. 2024). “” NMSA 1978, § 32A-4-6(B) (2015). 5 Ritalin is a psychotropic Section 32A-4-6(B) was amended by Chapter 41, Section 48 of New Mexico 5 Laws of 2022, 2nd Session, but the quoted provision was in effect at the relevant time and the amendment does not change this language.”
State ex rel. CYFD v. Djamila B., 2014 NMCA 45 (N.M. Ct. App. 2014). “NMSA 1978, § 32A-4-2 (2009) (definitions); NMSA 1978, § 32A-4-6 (2009) (including “guardians” when discussing taking children into custody); NMSA 1978, § 32A-4-7(A) (2009) (release from custody); NMSA 1978, § 32A-4-22(A)(5), (B)(1), (D) (2009) (dispositional hearings); NMSA…”
State, ex rel., Child., Youth, & Families Dep't v. Marsalee P. (N.M. Ct. App. 2013). “” Section 32A-4-6(C). If the Department determines that the child is an Indian child, the Abuse and Neglect Act requires that the Department give notice of the proceedings to the Indian tribe in accordance with ICWA.”
State Ex Rel. CYFD v. Heather S. (N.M. Ct. App. 2021). “NMSA 1978, § 32A-4-6(B) (2015) (providing that “[a] child shall not be taken into protective custody solely on the grounds that the child’s parent .”
— N.M. Stat. § 32A-4-6(A) — 3 cases
State ex rel. Chidren, Youth & Families Dep't v. Djamila B., 2015 NMSC 003 (N.M. Ct. App. 2014). “, § 32A-4-2 (defining abuse and neglect by parties including guardians); § 32A-4-6(A) (describing conditions under which a child may be taken into custody, including when guardians commit certain acts); § 32A-4-7(A) (listing guardians as persons to whom CYFD may release children…”
State Ex Rel. Child., Youth & Families Dep't v. Benjamin O., 160 P.3d 601 (N.M. Ct. App. 2007). “Relying on these statutory provisions and other applicable case law, we will then describe the procedures to be followed after an adjudication of abuse and neglect is reversed under circumstances similar to the case at bar. {25} New Mexico’s Abuse and Neglect Act applies to…”
In re Mahdjid B. & Aliah B. (N.M. 2014).
— N.M. Stat. § 32A-4-6(A)(1) — 1 case
Chavez v. Bd. of Cnty. Commissioners, 31 P.3d 1027 (N.M. Ct. App. 2001). “See also NMSA 1978, § 32A-4-6(A)(1) (1993) (providing that a child may be held or taken into custody “by a law enforcement officer when the officer has reasonable grounds to believe that the child is suffering from illness or injury as a result of alleged abuse or neglect or has…”
— N.M. Stat. § 32A-4-6(A)(2) — 1 case
Arredondo v. Locklear, 371 F. Supp. 2d 1281 (D.N.M. 2005).
— N.M. Stat. § 32A-4-6(A)(l) — 3 cases
Chavez v. Bd. of Cnty. Commissioners, 31 P.3d 1027 (N.M. Ct. App. 2001). “See also NMSA 1978, § 32A-4-6(A)(1) (1993) (providing that a child may be held or taken into custody “by a law enforcement officer when the officer has reasonable grounds to believe that the child is suffering from illness or injury as a result of alleged abuse or neglect or has…”
Herrera v. City of Albuquerque, 673 F. Supp. 2d 1307 (D.N.M. 2008). “§ 32A-4-6(A)(l), provides that “[a] child may be held or taken into custody .”
Arredondo v. Locklear, 371 F. Supp. 2d 1281 (D.N.M. 2005).
— N.M. Stat. § 32A-4-6(B) — 3 cases
State ex rel. CYFD v. Heather S., 563 P.3d 821 (N.M. 2024). “” NMSA 1978, § 32A-4-6(B) (2015). 5 Ritalin is a psychotropic medication.”
State Ex Rel. CYFD v. Heather S. (N.M. 2024). “” NMSA 1978, § 32A-4-6(B) (2015). 5 Ritalin is a psychotropic Section 32A-4-6(B) was amended by Chapter 41, Section 48 of New Mexico 5 Laws of 2022, 2nd Session, but the quoted provision was in effect at the relevant time and the amendment does not change this language.”
State Ex Rel. CYFD v. Heather S. (N.M. Ct. App. 2021). “NMSA 1978, § 32A-4-6(B) (2015) (providing that “[a] child shall not be taken into protective custody solely on the grounds that the child’s parent .”
— N.M. Stat. § 32A-4-6(C) — 3 cases
State ex rel. Child., Youth & Families Dep't v. Marsalee P., 2013 NMCA 062 (N.M. 2013). “” Section 32A-4-6(C). If the Department determines that the child is an Indian child, the Abuse and Neglect Act requires that the Department give notice ofthe proceedings to the Indian tribe in accordance with ICWA.”
State ex rel. CYFD v. Marsalee P., 2013 NMCA 62 (N.M. Ct. App. 2013). “” Section 32A-4-6(C). If the Department determines that the child is an Indian child, the Abuse and Neglect Act requires that the Department give notice of the proceedings to the Indian tribe in accordance with ICWA.”
State, ex rel., Child., Youth, & Families Dep't v. Marsalee P. (N.M. Ct. App. 2013). “” Section 32A-4-6(C). If the Department determines that the child is an Indian child, the Abuse and Neglect Act requires that the Department give notice of the proceedings to the Indian tribe in accordance with ICWA.”
— N.M. Stat. § 32A-4-6(D) — 3 cases
State ex rel. Child., Youth & Families Dep't v. Marsalee P., 2013 NMCA 062 (N.M. 2013). “” Section 32A-4-6(C). If the Department determines that the child is an Indian child, the Abuse and Neglect Act requires that the Department give notice ofthe proceedings to the Indian tribe in accordance with ICWA.”
State ex rel. CYFD v. Marsalee P., 2013 NMCA 62 (N.M. Ct. App. 2013). “” Section 32A-4-6(C). If the Department determines that the child is an Indian child, the Abuse and Neglect Act requires that the Department give notice of the proceedings to the Indian tribe in accordance with ICWA.”
State, ex rel., Child., Youth, & Families Dep't v. Marsalee P. (N.M. Ct. App. 2013). “” Section 32A-4-6(C). If the Department determines that the child is an Indian child, the Abuse and Neglect Act requires that the Department give notice of the proceedings to the Indian tribe in accordance with ICWA.”
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