A. A law enforcement officer who takes a child into protective custody shall, with all reasonable speed:

(1) inform the child of the reasons for the protective custody; and

(2) contact the department.

B. When the department is contacted by a law enforcement officer who has taken a child into protective custody, the department shall refer the child to community based services and may:

(1) accept custody of the child and designate an appropriate placement in the community for the child; or

(2) return the child to the child's parent, guardian or custodian if the child's safety is assured.

C. A child taken into protective custody shall not be placed in or transported in a law enforcement vehicle or any other vehicle that contains an adult placed under arrest, unless circumstances exist in which any delay in transporting the child to an appropriate facility would be likely to result in substantial danger to the child's physical safety. When such circumstances exist, the circumstances shall be described in writing by the driver of the vehicle and submitted to the driver's supervisor within two days after the driver transported the child.

D. A child taken into protective custody shall not be held involuntarily for more than two days, unless a petition to extend the custody is filed pursuant to the provisions of the Family in Need of Court-Ordered Services Act or the Abuse and Neglect Act.

E. When a petition is filed or any time thereafter, the children's court or district court may issue an ex-parte custody order based upon a sworn written statement of facts showing that probable cause exists to believe that protective custody of the child is necessary.

F. The protective custody order shall be served on the respondent by a person authorized to serve arrest warrants and shall direct the law enforcement officer to take custody of the child and deliver the child to a place designated by the court.

G. The Rules of Evidence do not apply to the issuance of an ex-parte custody order.

History: 1978 Comp., § 32A-3B-4, enacted by Laws 1993, ch. 77, § 76; 2005, ch. 189, § 30; 2019, ch. 101, § 4.

Cross references. — For the applicability of the Rules of Evidence, see Rule 11-1101 NMRA.

The 2019 amendment, effective June 14, 2019, required the children, youth and families department, when contacted by a law enforcement officer who has taken a child into protective custody, to refer the child to community based services, and made certain technical changes; and in Subsection B, added "shall refer the child to community based services and", and in Paragraph B(1), deleted "facility in which to place" and added "placement in the community for".

The 2005 amendment, effective June 17, 2005, changed "forty-eight hours" to "two days" in Subsections C and D.