2024 New Mexico Statutes
Chapter 32A - Children's Code
Article 4 - Child Abuse and Neglect
Section 32A-4-19 - Adjudicatory hearings; time limitations.
A. The adjudicatory hearing in a neglect or abuse proceeding shall be commenced within sixty days after the date of service on the respondent.
B. Prior to the adjudicatory hearing, all parties to the hearing shall attend a mandatory meeting and attempt to settle issues attendant to the adjudicatory hearing and develop a proposed treatment plan that serves the child's best interest.
C. The children's court attorney shall represent the state at the adjudicatory hearing.
D. When the adjudicatory hearing on any petition is not commenced within the time period specified in Subsection A of this section or within the period of any extension granted, the petition shall be dismissed with prejudice.
History: 1978 Comp., § 32A-4-19, enacted by Laws 1993, ch. 77, § 113; 1997, ch. 34, § 3; 2009, ch. 239, § 39.
ANNOTATIONSThe 2009 amendment, effective July 1, 2009, in Subsection A, after "sixty days after the", deleted "latest of the following dates:"; deleted Paragraphs (1) through (3) of Subsection A, which listed: the date the petition is served on the respondent; the date the trial court orders a mistrial or a new trial; and the date a mandate in an appeal or order disposing of the appeal is filed; and added "date of service on the respondent".
Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.
The 1997 amendment, effective July 1, 1997, substituted "sixty days" for "ninety days" in the introductory paragraph of Subsection A, added Subsection B, and redesignated former Subsections B and C as Subsections C and D.
Rule 10-343 NMRA controls dismissal for failure to meet time limitations. — Section 32A-4-19 NMSA 1978 is procedural. Rule 10-343 NMRA, which allows the court discretion to dismiss for the failure to meet time limit requirements, prevails over Section 32A-4-19 NMSA 1978. State ex rel. Children, Youth & Families Dep't v. Arthur C., 2011-NMCA-022, 149 N.M. 472, 251 P.3d 729.
Failure to timely adjudicate petition. — Where the children, youth and families department (CYFD) filed an abuse and neglect petition alleging that mother was homeless and had left child in father's care, that mother tested positive for certain controlled substances, and that the conditions in father's home were dangerous, and where there was reason to know that the child was an Indian child as set forth in the federal Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963, the district court did not err in granting parents' motion to dismiss the case with prejudice for failure to timely commence the adjudicatory hearing or in denying CYFD's motion for an extension of time, because this section mandates that adjudicatory hearings be commenced within sixty days from the date parents are served with an abuse and neglect petition, and the oral motion to dismiss occurred more than 100 days after parents were served; Rule 10-343 NMRA does not allow the district court to consider a motion for an extension after the ten-day grace period has expired. State ex rel. CYFD v. Tanisha G., 2019-NMCA-067.
Violation of federal Indian Child Welfare Act of 1978. — Where the parent, who was a member of the Navajo nation, consented at a temporary custody hearing to the temporary custody of the child by CYFD; in the temporary custody order, the parent stipulated to a finding that clear and convincing evidence existed to believe that continued custody of the child by the parent or a guardian was likely to result in serious emotional or physical damage to the child; the parent contested CYFD's permanent custody of the child at the adjudicatory hearing; CYFD did not put on any evidence to establish that continued custody of the child by the parent or an Indian custodian was likely to result in serious emotional or physical damage to the child as required by the federal Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2006), at either the temporary custody hearing or at the adjudicatory hearing, the adjudication of neglect was not based on sufficient evidence. State of N.M. ex rel. Children, Youth & Families Dep't v. Marlene C., 2009-NMCA-058, 146 N.M. 588, 212 P.3d 1142, aff'd, State ex rel. Children, Youth & Families Dep't v. Marlene C., 2011-NMSC-005, 149 N.M. 315, 248 P.3d 863.
Findings required at adjudication stage. — In a contested adjudication to which ICWA [Indian Child Welfare Act] applies, the district court must always make the findings of fact required under § 1912(d) and (e) of ICWA at the adjudication stage, founded either on evidence of record or admissions supported by a factual basis. State ex rel. Children, Youth & Families Dep't v. Marlene C., 2011-NMSC-005, 149 N.M. 315, 248 P.3d 863.
Witnesses qualified as experts for purposes of the federal Indian Child Welfare Act. — A qualified expert witness for Indian Child Welfare Act purposes must be qualified to testify regarding serious damage to the child, but need not necessarily be qualified to testify about cultural standards of the particular tribe if such expertise is irrelevant to the particular circumstances at issue in the proceeding. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted.
Standard of review to be applied to a district court's decision to qualify an expert for Indian Child Welfare Act purposes. — The appropriate standard of review to be applied to a district court's decision to qualify and admit the testimony of a qualified expert witness within the meaning of the federal Indian Child Welfare Act (ICWA) is an abuse of discretion standard. ICWA experts are to be evaluated in the same manner as other experts under a given jurisdiction's evidentiary rules. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted.
The district court abused its discretion in qualifying Indian Child Welfare Act expert witness. — In an abuse and neglect case, where the district court adjudicated child as abused and neglected and ordered that child remain in the custody of the children, youth and families department (CYFD) under the care of child's aunt, and where parents claimed that CYFD failed to present a qualified expert witness during the adjudicatory hearing and that the district court committed reversible error by allowing CYFD's proffered expert on the federal Indian Child Welfare Act to testify without the necessary foundation, the district court abused its discretion in qualifying CYFD's witness as an expert for purposes of the ICWA, because although the witness was qualified to testify with respect to the prevailing social and cultural standards of child's tribe, the witness was not qualified to opine as to whether child's continued custody by parents was likely to result in serious emotional or physical damage to the child. The federal guidelines require ICWA experts to have expertise beyond the normal social worker qualifications and the record does not contain a sufficient foundation establishing that CYFD's witness had the requisite expertise in the areas of substance abuse, domestic violence, self-harm, suicidal ideation, and household hazards, which were the allegations in this case, to opine as to a causal relationship between these particular conditions and the likelihood that continued custody of child will result in serious emotional or physical damage to child. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted.
Adjudication of abuse and neglect was error. — In an abuse and neglect case, where the district court adjudicated child as abused and neglected and ordered that child remain in the custody of the children, youth and families department (CYFD) under the care of child's aunt, and where parents claimed that CYFD failed to present a qualified expert witness during the adjudicatory hearing and that the district court committed reversible error by allowing CYFD's proffered expert on the federal Indian Child Welfare Act to testify without the necessary foundation, the district court erred in adjudicating child as abused and neglected where the court applied the wrong legal standard in qualifying CYFD's expert witness and where there was insufficient foundational evidence in the record to uphold the district court's acceptance of CYFD's proffered expert as qualified to issue an opinion as to whether child's continued custody by parents was likely to result in serious emotional or physical damage. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E., 2022-NMCA-028, cert. granted.
Law reviews. — For comment, "Incorporating the Law of Criminal Procedure in Termination of Parental Rights Cases: Giving Children a Voice Through Matthews v. Eldridge", see 32 N.M. L. Rev. 143 (2006).
