SANTA FE — The New Mexico Supreme Court on Monday unanimously rejected an emergency petition seeking to halt the state’s practice of taking drug-exposed newborns into protective custody before hospital discharge, handing a significant legal victory to Gov. Michelle Lujan Grisham’s administration.
The court dismissed a petition filed by the American Civil Liberties Union of New Mexico and two Democratic state lawmakers — Sen. Linda López of Albuquerque and Rep. Micaela Lara Cadena of Mesilla — who had asked justices to issue an emergency order ending the policy. The state argued the petitioners lacked standing to bring the case.
The policy traces to a July 2025 directive from Lujan Grisham requiring the Children, Youth and Families Department to take custody of every newborn who tests positive for illegal substances at birth — including fentanyl, methamphetamine and other controlled substances — for at least 72 hours before discharge. In every case, CYFD is required to file an abuse and neglect petition. If a child is eventually placed back with parents, CYFD conducts regular check-ins.
The directive came after at least two high-profile deaths of infants born drug-exposed who had been returned to their parents under CYFD supervision, including a 4-month-old who died in June 2025 while co-sleeping with parents who regularly used controlled substances. An average of 1,266 babies were born exposed to illegal drugs in New Mexico annually between 2020 and 2023, according to the New Mexico Department of Justice.
As of Monday, 213 newborns have tested positive for illegal substances at birth under the directive, according to CYFD spokesman Jake Thompson, who said all are in safe care.
“This welcome decision will help keep babies safe,” Thompson said in a statement. “The Supreme Court’s dismissal of this case enables CYFD to continue working in close collaboration with mothers and their families, and with medical professionals, the courts, law enforcement, and partner agencies, to give babies born exposed to dangerous drugs a fighting chance to live and thrive.”
Maralyn Beck, executive director of New Mexico Child First Network and a longtime critic of CYFD, called the ruling a relief.
“Since the governor stood strong and made this directive, no child that has fallen under this directive has died,” Beck said. “In my opinion, there is no metric that is more important than children not dying.”
The ACLU had argued the policy amounted to a zero-tolerance approach that violated parents’ constitutional due process rights and would drive families away from prenatal care. “Stigma and criminalization drive families away from care — parents may avoid prenatal appointments, travel out of state to give birth, or conceal their health history from providers,” the ACLU wrote in materials accompanying the petition. The organization did not immediately comment Monday.
The legal challenge is the latest flashpoint in a years-long policy struggle over how New Mexico handles drug-exposed newborns. A 2023 Legislative Finance Committee evaluation found the state’s Comprehensive Addiction and Recovery Act program — which was designed to provide voluntary, non-punitive services to affected families — was failing badly, with 85 percent of families not following through on required services. Republicans in the Legislature had pushed repeatedly to add enforcement teeth to CARA. Former Sen. Gay Kernan of Hobbs carried a bill in 2023 requiring CYFD assessments for noncompliant families; it passed the Senate unanimously but died in the House. Sen. Crystal Brantley, R-Elephant Butte, and House Republicans revived similar efforts in 2024. Those efforts were ultimately superseded by SB 42, which passed 38-0 in the Senate and 59-2 in the House in 2025 and shifted CARA administration to the Health Care Authority with added enforcement mechanisms.
A separate investigation of CYFD by Attorney General Raúl Torrez, whose 224-page report was released in April, concluded the agency had systemically endangered children, returned kids to dangerous homes and obstructed investigators, found that over 1,200 drug-affected newborns are at risk in New Mexico each year and that CYFD’s rate of screening out abuse and neglect referrals involving substance-exposed infants was more than double the national average.
Brantley, who co-sponsored related child welfare legislation in 2025, called the agency’s failures a systemic pattern. “These are real children — returned to dangerous homes, left without visits for months, warehoused in office buildings, failed at every turn by an agency that chose to protect its own reputation over their lives,” she said earlier this year in response to the attorney general’s investigation of CYFD.
Sen. Nicole Tobiassen, R-Albuquerque, had pushed back sharply when the ACLU filed the petition in May, calling the legal challenge “an extreme position” and urging the court to deny it. Tobiassen noted that states, including Maryland and Minnesota, classify drug exposure in newborns as abuse or neglect and require removal interventions.
Some child advocates and Democratic lawmakers have raised concerns that blanket removal of drug-exposed newborns will further strain the state’s already overburdened foster care system. Former state Sen. Gerald Ortiz y Pino had called the approach punitive and said it would stigmatize families.
