New Mexico’s controversial new strategy of immediately taking drug-exposed newborns into custody faces a state Supreme Court challenge.
The American Civil Liberties Union of New Mexico, joined by two Democratic state lawmakers, filed a petition this week calling for the high court to issue an emergency order halting the practice, which Gov. Michelle Lujan Grisham launched in July 2025 following several high-profile child and infant deaths.
The plaintiffs say the state is violating parents’ constitutional rights to due process by improperly assuming they are guilty of abuse or neglect and then swiftly seeking custody of an infant. The practice goes against best medical practices, they say, and traumatizes families by ripping them apart during a newborn’s first weeks — time that is crucial to their development.
“We really see the CYFD directive as a blunt instrument for addressing an issue that really deserves more precision,” ACLU of New Mexico staff attorney Deanna Warren said in an interview. “… When children are being ripped away from their parents, this has downstream effects, lasting trauma and harm that reverberates from that separation.”
Michael Coleman, the chief spokesperson for Lujan Grisham, wrote in an email the practice has resulted in the state asking district judges to intervene on behalf of children’s safety over 130 times, with judges approving more than 90% of those petitions.
He added law enforcement officers are informed every time a newborn tests positive for illegal drugs or other substances and collaborate with CYFD workers in determining the risk to that child’s safety. When the risk is too high, Coleman said, the state petitions the courts for custody and looks for more appropriate housing for the child.
“Gov. Lujan Grisham stands firm in her conviction that protecting newborns from being discharged into dangerous environments is the right thing to do — and she is confident that this lawful directive is saving lives,” Coleman wrote. “… Findings of child endangerment by law enforcement and CYFD, and subsequent court rulings affirming those findings, are keeping vulnerable New Mexico babies safe from harm.”
CYFD spokesperson Jake Thompson wrote in an email most of the more than 200 babies reported under the new strategy have tested positive for a combination of dangerous drugs, which has required swift intervention.
The bottom line? “No substance-exposed newborn child under the directive has died,” Thompson wrote.
“The directive is working as intended and is keeping babies alive. Before the directive, too many substance-exposed newborn babies were dying, and others struggled to live,” he added. “Now we’re providing a protected environment for infants during their most vulnerable developmental period while keeping a pathway open for parents to engage with services and substance treatment.”
‘Zero-tolerance policy’
Lujan Grisham said when she launched the new strategy it represented a shift in priorities for the state — away from reuniting at-risk children with their families and toward ensuring they are safe.
The practice was implemented in response to child welfare legislation known as Senate Bill 42 that reformed New Mexico’s laws enacting the federal Comprehensive Addiction and Recovery Act. Lujan Grisham said at the time her strategy was more “robust.”
The ACLU argued in its petition the practice fails to take into account the situations of families on a case-by-case basis, treating all families the same regardless of how severely or recklessly they may have exposed their baby to substances.
“There’s really no distinction between, say, someone with a chronic substance use issue and somebody who may have taken a drink of alcohol before they knew they were pregnant,” Warren said.
CYFD in a directive implementing the practice states that “removal is not based solely on a finding that a mother is using or abusing drugs.”
State law also prohibits mandatory reporters, such as healthcare professionals and law enforcement officers, from basing abuse and neglect reports to CYFD solely on toxicology screenings, interviews or other findings showing a pregnant woman is using drugs.
Despite the state outwardly saying it doesn’t use substance exposure alone to determine a child has been abused or neglected, the ACLU argues, the state is doing so by seeking to take newborns into custody and filing maltreatment petitions.
“Under this zero-tolerance policy, newborns are removed from their parents at birth, deprived of developmentally crucial bonding time, and ushered into a system with a proven lack of capacity to provide adequate care,” the ACLU wrote in the petition.
Some 213 children have been reported to CYFD under the new directive so far, Thompson wrote. Of those, 127 have been placed in licensed relative or nonrelative foster homes. Thirty were placed under guardianships with their family or other relatives.
Another 29 were placed in monitored environments, such as with parents or other family who did not expose the child to drugs, and were receiving in-home services and other oversight. Thirteen were still in hospitals, and nine were under tribal jurisdiction. Judges denied five total petitions for custody by CYFD, according to Thompson.
‘Immoral and unlawful’
The two lawmakers who signed onto the ACLU’s petition — Sen. Linda López, D-Albuquerque, and Rep. Micaela Lara Cadena, D-Mesilla — emphasized the harm the state was placing on children and families.
“This immoral and unlawful directive turns our back on families that most need support,” Lara Cadena said in a statement. “This directive is causing state-sanctioned trauma, and we cannot allow it to stand.”
López added, “Every day this directive remains in effect is a day another family is torn apart — and that is not justice.”
Dr. Jocelyn Wu, an OB-GYN who said in a statement she has served families in Albuquerque and the Española Valley, also noted the directive negates best medical practices for parents struggling with substance use.
“This directive contradicts what we know through research — that non-punitive policy for substance use in pregnancy improves outcomes,” she wrote. “… This directive incorrectly represents current regulations and will discourage pregnant people and parents from seeking care.”
Albuquerque Republican Sen. Nicole Tobiassen, however, blasted the petition, arguing the state’s strategy for immediately seeking to take substance-exposed children into custody was an effort to protect them.
“The ACLU, together with their leftist partners in the legislature, are taking an extreme position,” Tobiassen said in a statement.
“Even blue states such as Maryland and Minnesota define drug exposure in newborns as abuse or neglect and require interventions to remove children from unsafe living conditions,” she added. “New Mexico can and should continue to prioritize the best interest of the child in such cases.”