SANTA FE, N.M. – A decades-old New Mexico law is raising new questions from advocates and some legislators behind the baby boxes in the state.

Advocates and lawmakers were in Belen just last week, celebrating a safe surrender. Now, their focus has changed from celebrating to changing state law.

“The baby box works because it’s anonymous. Because no one sees who placed this baby in this box. Why are you going out and looking for this parent?” said Monica Kesley, founder and CEO of Safe Haven Baby Boxes.  

She says a state law is getting in the way of her organization’s mission.

Right now, under the Safe Haven Act, CYFD is legally obligated to investigate Safe Haven surrenders, and give the mother and her family an opportunity to reconsider.

Federal law also says if the baby is Native American, the state has to reach out to tribes to try to get the baby returned to the reservation.

“I did not do my due diligence in looking at the reunification law,” Kesley said.

KOB 4 talked to Kelsey after her TikTok videos got thousands of views. 

“We have to trust these parents that they are doing what is best for them, doing what is best for their child, and allow them to do this anonymously and walk away,” Kesley said.

Sen. David Gallegos’ district covers Hobbs – which has its own baby box that a mother used in September. He’s working to get a new bill across the finish line this session to change part of the current Safe Haven Act.

“In statute, there are some issues on what CYFD is obligated to do. We’re looking to run a bill now, in the next couple of days, to try to resolve that,” Gallegos said.

He wants to change the language so CYFD will only investigate and look for the parent if the baby is hurt, or shows signs of abuse.

If the baby is healthy – like the two dropped off in Hobbs and Belen – there would be no investigation.

“If we do nothing, they’ll always be the fear that somewhere, sometime, the mom will be apprehended and charged. And if we can correct this now, then as we go forward, there’s absolutely no fear in protecting that child and do the right thing,” Gallegos said. 

If it doesn’t pass, Kelsey’s message remains the same for mothers across the state.

“I hope that any mother who needs to utilize this will trust us,” Kelsey said. “I will protect them. I have protected mothers in the past, I’ve put money where my mouth is protecting these parents, and I will do it again.”

KOB 4 reached out to CYFD with some questions about the investigative process Wednesday: 

“The department wants to be clear: CYFD does not conduct criminal investigations or prosecutions against anyone.”

Giuli Frendak: What is the extent of the effort involved in all cases that fall under this law, including baby box cases?

“CYFD is required by the Safe Haven for Infants Act to immediately investigate if an infant is surrendered pursuant to the Safe Haven for Infants Act.

Additionally, part C of Section 24-22-5 of the NMSA explains the department’s responsibilities under the Federal Indian Child Welfare Act (ICWA) and the Children’s Code.”

Giuli Frendak: What happens if CYFD does not find the mother or any viable family members to take care of the child?

“CYFD investigators must follow procedures outlined in several pieces of legislation at the state and federal level: the Abuse and Neglect Act and the Indian Family Protection Act (IFPA) in New Mexico, and the Indian Child Welfare Act (ICWA)at the federal level.

If the child is not of Native descent, the child will remain in state custody and be placed in a licensed non-relative resource home as the department works to find a safe, stable permanent placement for the infant.

If the child is of Native descent, ICWA and the Children’s Code require the department notify the Office of Family Representation and Advocacy and any Nations, Tribes, or Pueblos the department may know or have reason to know the child is an Indian child and follow the Indian child placement preferences guidelines.”

Giuli Frendak: If investigators find the mother, does she have to accept the child, or are there other opportunities for her to safely surrender the child with CYFD?

“CYFD is searching for the mother to ensure her safety and well-being. We do not intend to reunify her with the infant if that is not what she wants.

There are several options for parents under the Safe Haven for Infants Act and the Children’s Code, including relinquishment of parental rights.”