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Since July, more than 130 infants born drug-exposed in New Mexico have been taken into state custody under a controversial directive Gov. Michelle Lujan Grisham hoped would save lives.

So far, so good, according to her office.

In 90% of those cases, judges in New Mexico Children鈥檚 Court have agreed the high-risk newborns exposed to illicit drugs like fentanyl and methamphetamine or with fetal alcohol syndrome should not go directly home from the hospital but to an alternative setting. No child in that group has perished, said a spokesman with the state Children, Youth and Families Department.

But the New Mexico chapter of the American Civil Liberties Union, in a case filed this week, contends that policy is unconstitutional and denies families due process. The plaintiffs want the state Supreme Court to invalidate the approach.

One reason: unlike at least 24 other states, New Mexico doesn鈥檛 consider such infants to be abused or neglected by virtue of their drug exposure alone, the ACLU states in a petition seeking an emergency stay of the practice.

鈥淎s implemented, the (CYFD) directive causes immediate and irreparable harm to New Mexico families,鈥� state the ACLU, state Sen. Linda Lopez, D- sa国际传媒官网网页入口, and state Rep. Micaela Cadena, D-Mesilla, in the petition.

It is 鈥渁n unconstitutional official action that invades the fundamental liberty interest of parents to the care and custody of their children,鈥� the petition states.

Asked why the plaintiffs didn鈥檛 seek to stop the practice sooner, ACLU staff attorney Deanna Warren responded in a email:

"Cases of this sensitive nature require extensive and careful legal analysis before we file. We examine every aspect of the case to ensure we're putting forward the strongest possible argument for the people we represent. Rushing to file can undermine a case and ultimately hurt the communities we're trying to help. It was important for us to assess how CYFD implemented and enforced the directive before we proceeded with legal action.鈥�

In the past, such newborns would go home with parents who might be drug-addicted but under a 鈥減lan of safe care鈥� the hospital and CYFD would create that offered services, such as treatment. CYFD continues to use such plans under the new policy.

The governor announced the change last July after two babies died of maltreatment, but the ACLU contends she first needed legislative approval.

Proposed legislation on the topic died without having a committee hearing in both the 2025 and 2026 sessions.

The CYFD directive contravened 鈥渢he legislature鈥檚 鈥榚xpressed aversion鈥� to punitive family separation policies,鈥� the ACLU petition states.

The Legislature recognized the reality of separating children from their families when severe injury or abuse has occurred, the ACLU says, but has maintained that, 鈥渢o the maximum extent possible, children in New Mexico shall be reared as members of a family unit.鈥�

Lujan Grisham directed CYFD to file abuse/neglect petitions in all instances where infants were born drug-exposed when accompanying safety and risk concerns are 鈥渦nacceptably high and indicate that a child is at risk of suffering serious harm.鈥�

Law enforcement is notified every time a newborn tests positive for dangerous illegal drugs. Officers then work with CYFD to determine the risk of sending these at-risk babies home.

When the risk is too great, CYFD petitions state district court to intervene and allow CYFD to find an alternative home placement for the child. 

Since the directive was issued, a total of 213 infants have been reported into CYFD鈥檚 central intake hotline as substance-exposed, said Jake Thompson, a CYFD spokesman.

Hospitals or clinics usually make the reports, which go jointly to law enforcement and CYFD.

鈥淲hen the risk of sending babies home is too great, CYFD petitions the court for custody,鈥� Thompson said.

鈥淲e鈥檝e done that in 132 cases and have been given custody of newborns in all but five cases,鈥� he said.

Of the infants CYFD received custody of, all were placed in a licensed foster home, 60% are with relatives and 40% are with nonrelatives.

Of the 81 remaining children:

• 30 are in guardianship (family/relatives sought guardianship through the courts).

• Nine are with the tribes that invoked jurisdiction.

• 13 are still hospitalized.

• 29 are in monitored environments or with additional oversight, such as with a nonoffending parent or family member, or receiving in-home services. These cases still have CYFD engagement and monitoring.

鈥淕ov. Lujan Grisham stands firm in her conviction that protecting newborns from being discharged into dangerous environments is the right thing to do 鈥� and she is confident that this lawful directive is saving lives,鈥� Michael Coleman, spokesman for the Governor鈥檚 Office, said in a statement.

But the ACLU argues, 鈥淯nder 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.鈥�

Family separation policies are not new, and these policies disproportionately impact low-income people and people of color, the petition states.

Before the governor鈥檚 directive, Thompson said, 鈥渢oo many substance-exposed newborn babies were dying and struggling to live. Now we鈥檙e providing a protected environment for infants during their most vulnerable developmental period while keeping a pathway open.鈥�