Summary:

 Senate Bill 307 (SB 307) enacts the Office of Child Ombud Act; provides for the State Child Ombud; creates the Office of Child Ombud and establishes the powers and duties of that office; provides for the establishment of the State Child Ombud Selection Committee; amends and enacts sections of the NMSA 1978; and makes an appropriation. 

Legislation Overview:

 House Bill 391 (HB 391) ) enacts a new section of the Children’s Code to establish the "Office of Child Ombud Act” and enacts/amends various sections to provide for the following guidelines and mandates. 

Definitions include:

"committee" means the state child ombud selection committee; 
"near fatality" means an injury or condition caused by abuse or neglect that results in a child: (1) being placed in serious or critical condition, as certified by a licensed physician; and (2) receiving critical care for at least twenty-four hours following the child's admission to a critical care unit; 
"office" means the office of child ombud; 
"ombud" means the individual who heads the office and has the powers and duties set forth in Section 6 of the Office of Child Ombud Act.

The "Office of Child Ombud" is created and is administratively attached to the administrative office of the courts (Office). The Office is to maintain autonomy over the Office's budget and any decisions they may take. The head of the Office is the "State Child Ombud", who is to be appointed for a term of six years. The ombud may be reappointed to successive terms. An appointed ombud is to serve and have all of the duties, responsibilities and authority of that Office until appointment of a new ombud. The governor or the supreme court may remove the ombud only for malfeasance, misfeasance or abuse of office.

The "State Child Ombud Selection Committee" is created and consists of nine members, including: 

(1) one member who is to be selected by the President Pro Tempore of the Senate; 
(2) one member who is to be selected by the Minority Floor Leader of the Senate; 
(3) one member who is to be selected by the Speaker of The House of Representatives (House); 
(4) one member who is to be selected by the minority floor leader of the House; 
(5) four members who are to be selected by the Governor: and
(6) the chair of the committee, whom a majority of the other eight members select based on stated criteria.

The committee is to actively solicit, accept and evaluate applications for the position of ombud and may require applicants to submit any information that the committee deems relevant to the consideration of applications. The committee must submit to the Governor the names of people who are recommended for appointment to the position by a majority of the committee members. 

The Governor must fill a vacancy or appoint a successor to fill an impending vacancy in the position of ombud within sixty days after receiving final nominations from the committee.

The committee is administratively attached to the Administrative Office of the Courts (Office). 

The Office is directed to:

(1) review the Department's provision of services to children and families, receive complaints concerning the actions of the Department or of any entity that provides services to children and families through funds provided by the Department and make appropriate referrals when the ombud determines that a child or family may be in need of assistance from the Office; 
(2) review current systems to determine the extent to which the Department's policies and procedures protect and enhance children's personal dignity, right to privacy, appropriate health care and education in accordance with state and federal law; 
(3) adopt and promulgate rules in accordance with the State Rules Act as are deemed necessary to carry out the provisions of the Office of Child Ombud Act; 
(4) operate a toll-free hotline and electronic communication portal to receive complaints; 
(5) investigate and attempt to resolve complaints made by or on behalf of children placed in the custody of the Department, receiving services under the supervision of the Department, referred to the Department or whose parent, guardian or custodian is under investigation by the Department; 
(6) upon investigation of a complaint, notify the complainant and subjects of the complaint of the investigation or, if the Office declines to investigate a complaint or continue an investigation, notify the complainant and the subjects of the complaint that no further action will be taken by the Office; 
(7) update the complainant on the progress of the investigation every ninety days and notify the complainant and the subjects of the complaint of the final outcome within ninety days of the completion of the investigation; 
(8) provide information about recipients' rights and responsibilities related to Departmental services;
(9) provide information concerning child and family welfare to the Governor, state agencies and legislators; 
(10) compile an annual report; 
(11) subpoena witnesses to provide testimony in cases in which a fatality or near fatality of a child has occurred while the child was in the custody of the Department; 
(12) access information or records that are necessary for carrying out the provisions of the Office of Child Ombud Act; and 
(13) access and review information, records or documents, including records of third parties, that the Office deems necessary to conduct a thorough and independent review of a complaint so long as the Department would be entitled to access or receive such information, records or documents.

The Office may may: (1) hire and contract for such professional, technical and support staff as needed to carry out the functions of the office; (2) meet or communicate with any child placed in the custody of the Department, receiving services under the supervision of the Department, referred to the Department or whose parent, guardian or custodian is under investigation by the Department in a developmentally sensitive method; and (3) decide whether to investigate a complaint or refer a complaint to another agency for investigation.

Each year, the Office must submit to the Legislative Finance Committee, the Department and the Governor on or before September 1 a report addressing services provided by the Department. Required elements of the report are specified.

The ombud must ensure that office staff are trained in in a number of specified areas, and must develop procedures for the training and certification of appropriate staff. 

Persons who are employees of the Office or who have contracts with the office are to not have a conflict of interest with the Department or with an entity that provides services to children and families through funds provided by the Department relating to the performance of their responsibilities pursuant to the Children's Code. 

The Department must provide the Office with a copy of all reports related to actual physical injury to children in the custody of the Department within thirty days of receiving the report, whether substantiated or unsubstantiated. 

The Department must provide the office with a written notification within seventy-two hours of: (1) a fatality or near fatality of a child in its custody or referred or receiving services under the supervision of the Department; and (2) the restraint or seclusion of a child in its custody.

Upon request by the Office, law enforcement agencies are to share all law enforcement reports involving children identified by the agencies as having been placed in the custody of the Department, receiving services under the supervision of the Department, referred to the Department or whose parent, guardian or custodian is under investigation by the Department. 

The Office must maintain the confidentiality of all case records, third-party records and court records, as well as any information gathered in the course of investigations and system monitoring duties. These records are exempt from public inspection and copying pursuant to the Inspection of Public Records Act and are to be kept confidential unless: (1) disclosure is ordered by the court; (2) disclosure is necessary to prevent imminent harm and the imminent harm is communicated directly to the ombud or staff of the office; (3) disclosure is necessary to the Department in order for the Department to determine the appropriateness of initiating an investigation regarding potential abuse or neglect or other emergency circumstances; or (4) disclosure is necessary to the Department in order for the Department to determine the appropriateness of initiating an investigation to determine facility compliance with applicable rules of licensure or certification or both. 

Notwithstanding the provisions of this act, the Office may publicly report any patterns of conduct or repeated incidents identified by the office in carrying out the provisions of the Office of Child Ombud Act; provided that the office are to not publicly disclose either of the following: (1) individually identifiable information about a child; and (2) investigation findings when there is pending law enforcement investigation or prosecution.

The Department must notify all children placed in the custody of the Department, receiving services under the supervision of the Department, referred to the Department or whose parent, guardian or custodian is under investigation by the Department and their parents, guardians, foster parents and identified fictive kin of the existence of the office, its purpose and function and its toll-free hotline and electronic communication portal with instructions for access.

Records pertaining to the child are confidential and are to not be disclosed directly or indirectly to the public. Exceptions are specified. The disclosure of any mental health and developmental disability records are to be made according to the terms of the Children's Mental Health and Developmental Disabilities Act. 

Whoever intentionally and unlawfully releases any information or records closed to the public according to this section or releases or makes other unlawful use of records in violation of this section is guilty of a petty misdemeanor. 

The Department must promulgate rules for implementing disclosure of records according to this act and in compliance with state and federal law and the Children's Court Rules.
One million dollars ($1,000,000) is appropriated from the General Fund to the administrative office of the courts for expenditure in Fiscal Year 2026 for expenses to be incurred in establishing the Office of Child Ombud. Any unexpended or unencumbered balance remaining at the end of fiscal year 2026 shall revert to the General Fund.



 

Current Law:

 

New Mexico does not currently have in place an Office of Child Ombud or related law; does not have a State Child Ombud, nor a related selection committee.