N.M. Stat. Ann. § 32A-4-2
As used in the Abuse and Neglect Act:
A. "abandonment" includes instances when the parent, without justifiable cause:
(2) left the child with others, including the other parent or an agency, without provision for support and without communication for a period of:
B. "abused child" means a child:
C. "aggravated circumstances" includes those circumstances in which the parent, guardian or custodian has:
G. "neglected child" means a child:
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:
L. "sexual exploitation" includes:
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.
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, 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.