Religious Rights of Youth in Out-of-Home Care - New Mexico

Date: January 2024

Youths' Religious Rights
Citation: Ann. Stat. §§ 32A-6A-12; 32A-28-36; Youth Bill of Rights

A child in an out-of-home treatment or habilitation program shall have, in addition to other rights set forth in the Children's Mental Health and Developmental Disabilities Act [chapter 32A, article 6A], the right to follow or abstain from the practice of religion. The program shall provide appropriate assistance in this connection, including reasonable accommodations for religious worship and transportation to nearby religious services. A child who does not wish to participate in religious practice shall be free from pressure to do so or to accept religious beliefs.

When determining the best interests of a Native American child pursuant to the Indian Family Protection Act, a court, after allowing testimony from all parties and the child's Tribe, shall consider, among other factors, the critical importance to the child of establishing, developing, or maintaining a political, cultural, social, and spiritual relationship with their Tribe and Tribal community and with familial ties such as clanship and family with unique cultural characteristics.

In policyAll New Mexico children and youth who are in foster care have rights. These rights apply to children and youth who live with foster parents (resource parents) and out-of-home placements, like group homes and residential facilities. Youth in out-of-home care have the following rights:

  • To be informed of their rights in foster care by their caseworker and to receive a list of those rights in written form
  • To participate in extracurricular, cultural, spiritual, and personal enrichment activities

Agency Responsibilities 
Citation: Admin. Code §§ 8.26.2.13; 8.26.4.17

The Protective Services Division (PSD) shall make efforts to normalize the lives of children in PSD custody and to empower caregivers to approve a child's participation in activities based on the caregiver's own assessment using a reasonable and prudent parent standard without prior approval of PSD. In applying the reasonable and prudent parent standard, the resource parent shall consider the following:  

  • The desires of the child, including, but not limited to, cultural identity, spiritual identity, gender identity, and sexual orientation   
  • The values and preferences of the child's birth parent or parents, if appropriate 
  • The legal rights and responsibilities of the child, including the youth bill of rights and responsibilities 

Foster care providers shall not engage in discriminatory treatment based on a child's race, ethnicity, creed, color, age, religion, Tribal affiliation, or ancestry.

Addressing Grievances
Citation: Admin. Code § 8.26.2.13(F); Youth Bill of Rights

In situations in which a child aged 14 or older disagrees with a decision made under the prudent parent standard, the child shall request a review of the decision in writing. The decision shall be reviewed by a neutral three-person panel through the youth grievance process. This process does not preclude any party from seeking a court order regarding the decision.

In policy: Youth in out-of-home care have the following rights:

  • To advocate for themself and to speak to persons involved with their case without negative repercussions
  • At age 14 and older, to initiate a review of any prudent parenting decision made by their foster parents

How to file a complaint: A foster child or youth who believes their rights have been violated may contact the New Mexico Office of Children's Rights (OCR) to pursue a grievance. Once contacted, the OCR will do the following:

  • Respond within about 24 hours to see how they can help
  • Review grievances and discuss next steps with the youth
  • Address issues raised by the youth, help the youth process information, and make recommendations