§ 32A-28-39 — Confidentiality; records; penalty

A. All records or information, whether on file with the court, an agency, the department, an attorney or other provider of professional services, concerning a party to any proceedings pursuant to the Indian Family Protection Act, including social records, diagnostic evaluations, psychiatric or psychological reports, videotapes, transcripts and audio recordings of an Indian child's statement of abuse or medical reports incident to or obtained as a result of an investigation or proceeding pursuant to the Indian Family Protection Act or that were produced or obtained during an investigation in anticipation of or incident to any proceeding pursuant to the Indian Family Protection Act, shall be confidential and closed to the public. B. The records described in Subsection A of this section shall be disclosed only to the parties and: (1) court personnel and persons or entities authorized by contract with the court to review, inspect or otherwise have access to records or information in the court's possession; (2) court-appointed special advocates appointed to the Indian child in a child custody proceeding; (3) the Indian child's guardian ad litem; (4) the attorney, including a public defender, representing the Indian child in any child custody proceeding pursuant to the Indian Family Protection Act; (5) department personnel and persons or entities authorized by contract with the department to review, inspect or otherwise have access to records or information in the department's possession; (6) any local substitute care review board or any agency contracted to implement local substitute care review boards; (7) law enforcement officials, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978; (8) district attorneys, except when use immunity is granted pursuant to Section 32A-4-11 NMSA 1978; (9) any state social services agency in any state or when, in the opinion of the department it is in the best interest of the Indian child, a governmental social services agency of another country; (10) an Indian child's tribe; (11) a foster parent, if the records are those of an Indian child currently placed with that foster parent or of an Indian child being considered for placement with that foster parent and the records concern the cultural, social, medical, psychological or educational needs of the Indian child; (12) school personnel involved with the Indian child if the records concern the Indian child's cultural, social or educational needs; (13) a grandparent, parent of a sibling, relative or fictive kin, if the records or information pertain to an Indian child being considered for placement with that grandparent, parent of a sibling, relative or fictive kin and the records or information concern the cultural, social, medical, psychological or educational needs of the Indian child; (14) health care or mental health professionals involved in the evaluation or treatment of the Indian child or of the Indian child's parents or guardian, or other family members; (15) protection and advocacy representatives pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1991; (16) children's safehouse organizations conducting investigatory interviews of children on behalf of a law enforcement agency or the department; (17) representatives of the federal government or their contractors authorized by federal statute or regulation to review, inspect, audit or otherwise have access to records and information pertaining to neglect or abuse proceedings; (18) any person or entity attending a meeting arranged by the department to discuss the safety, well-being and permanency of an Indian child, when the parent or child, or parent or guardian on behalf of a child younger than fourteen years of age, has consented to the disclosure; and (19) any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court. C. A parent or guardian whose Indian child has been the subject of an investigation of abuse or neglect where no petition has been filed shall have the right to inspect any medical report, psychological evaluation, law enforcement reports or other investigative or diagnostic evaluation; provided that any identifying information related to the reporting party or any other party providing information shall be deleted. The parent or guardian shall also have the right to the results of the investigation and the right to petition the court for full access to all department records and information except those records and information the department finds would be likely to endanger the life or safety of any person providing information to the department. D. In an adoption proceeding, all hearings held pursuant to the Indian Family Protection Act shall be confidential and shall be held in closed court without admittance of any person other than parties and their counsel and the Indian child's tribe. E. In an adoption proceeding, unless the petitioner agrees to be contacted or agrees to the release of the petitioner's identity to the parent and the parent agrees to be contacted or agrees to the release of the parent's identity to the petitioner, the attorneys, the court, the adoption agency and the department shall maintain confidentiality regarding the names of the parties, unless the information is already otherwise known. After the petition is filed and prior to the entry of the decree, the records in adoption proceedings shall be open to inspection only by the attorney for the petitioner, the department or the adoption agency, any attorney appointed as a guardian ad litem or attorney for the adoptee, the Indian child's tribe, any attorney retained by the adoptee or other persons upon order of the court for good cause shown. F. In an adoption proceeding, all information and documentation provided for the purpose of full disclosure is confidential. Documentation provided for the purpose of full disclosure shall remain the property of the person making full disclosure when a prospective adoptive parent decides not to accept a placement. Immediately upon refusal of the placement, the prospective adoptive parent shall return all full disclosure documentation to the person providing full disclosure. A prospective adoptive parent shall not disclose any confidential information received during the full disclosure process, except as necessary to make a placement decision or to provide information to an Indian child's guardian ad litem or attorney or the court. G. In an adoption proceeding, prior to the entry of the decree of adoption, the parent consenting to the adoption or relinquishing parental rights to an agency or the department shall execute an affidavit stating whether the parent will permit contact or the disclosure of the parent's identity to the adoptee or the adoptee's prospective adoptive parents. H. Whoever intentionally and unlawfully releases any information or records closed to the public pursuant to the Indian Family Protection Act or releases or makes other unlawful use of records in violation of that act is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978. I. The department shall promulgate rules for implementing disclosure of records pursuant to the Indian Family Protection Act and in compliance with state and federal law and the Children's Court Rules.

Legislative History

Laws 2022, ch. 41, § 39.