N.M. R. Child. Ct. 10-247

As amended through May 8, 2024

Rule 10-247 - Amenability hearing

A.Definition. For purposes of this rule, an "amenability hearing" is an evidentiary hearing to determine if the child is not amenable to treatment or rehabilitation as a child in available facilities and if the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders.

B.Separate proceeding. An amenability hearing is a separate proceeding from an adjudicatory hearing and a subsequent dispositional or sentencing hearing. The court shall not impose adult sanctions without holding an amenability hearing.

C.Time. Except for good cause shown, the amenability hearing,

(1) shall be held after the trial or the entry of an admission or of a plea of no contest; and

(2) shall begin no later than thirty (30) days after the date the trial was concluded or the admission or plea was entered.

D.Rules of evidence. An amenability hearing is not a dispositional hearing under Rule 11-1101 NMRA. The rules of evidence, therefore, shall apply.

E.Burden of proof. The burden is on the state to prove that the child is not amenable to treatment or rehabilitation as a child in available facilities and that the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders.

F.Findings. The Court shall make findings on the record on each of the following factors:

(1) the seriousness of the alleged offense;

(2) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;

(3) whether a firearm was used to commit the alleged offense;

(4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;

(5) the maturity of the child as determined by consideration of the child's home, environmental situation, social and emotional health, pattern of living, brain development, trauma history, and disability;

(6) the record and previous history of the child;

(7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services, and facilities currently available; and

(8) any other relevant factor.

G.Disclosure by the state. The state must disclose to the defense not later than ten (10) days prior to an amenability hearing what witnesses and evidence the state will rely on to prove each factor listed in Paragraph D of this rule.

H.Disclosure by the child. The child must disclose to the state not later than ten (10) days prior to an amenability hearing what, if any, witnesses and evidence will be presented on the child's behalf.

N.M. R. Child. Ct. 10-247

Adopted by Supreme Court Order No. 14-8300-015, effective for all cases filed on or after12/31/2014.

Committee commentary. -

Timing of hearing

The presumptive time for holding an amenability hearing is after the adjudicatory hearing or the entry of an admission or of a plea of no contest. Cf. State v. Jones, 2010-NMSC-012, & 31, 148 N.M. 1, 229 P.3d 474 ("[Alleged youthful offenders] remain in the juvenile system until after adjudication and may be sentenced as adults only after an amenability hearing."). In certain circumstances, however, the children's court may find it necessary to hold the amenability hearing earlier in the proceeding to protect the rights and interests of the parties. For example, in a case in which the maximum adult sanction is significantly greater than the maximum juvenile disposition, uncertainty over the outcome of an amenability hearing may frustrate the parties' ability to negotiate a plea agreement. The rule therefore permits the children's court, for good cause shown, to hold the amenability hearing before the trial or the entry of an admission or of a plea of no contest.

Standard of proof

To invoke an adult sentence against a child, NMSA 1978, Section 32A-2-20(B) requires the children's court to find that the child (1) is not amenable to treatment or rehabilitation as a child in available facilities, and (2) is not eligible for commitment to an institution for children with developmental disabilities or mental disorders. However, Section 32A-2-20 is silent about the standard of proof upon which these findings must be based. The committee agrees with Judge Bustamante's reasoning in State v. Gonzales that the appropriate standard is clear and convincing evidence. See 2001-NMCA-025, && 52-65, 130 N.M. 341, 24 P.3d 776 (Bustamante, J., specially concurring) (reasoning that the clear-and-convincing-evidence standard should apply at the amenability hearing as a matter of procedural due process); cf. State v. Rudy B. 2010-NMSC-045, 59, 149 N.M. 22, 243 P.3d 726 (holding that the Sixth Amendment does not require the amenability determination to be submitted to a jury and proven beyond a reasonable doubt); IJA-ABA Joint Commission on Juvenile Justice Standards, Standards Relating to Transfers Between Courts §2.2(A)(2), available at http://www.americanbar.org/content/dam/aba/migrated/sections/criminaljustice/PublicDo cuments/JJ_Standards_Transfers_Between_Courts.authcheckdam.pdf ("The juvenile court should waive its jurisdiction only upon finding . . . that by clear and convincing evidence the juvenile is not a proper person to be handled by the juvenile court.").

Jury findings

The findings required by Subparagraphs (F)(2), (3), and (4) of this Rule must be made by a jury at the adjudicatory hearing. See State v. Rudy B., 2010-NMSC-045, 36, 149 N.M. 22, 243 P.3d 726 ("[W]e think it prudent to submit the offense-specific factors in Section 32A-2-20(C)(2), (3) and (4) to the jury during the trial perhaps by way of special interrogatories."). Thus, the children's court should submit special interrogatories to the jury to support the court's possible consideration of whether the child is amenable to treatment or rehabilitation as a child in available facilities or eligible for commitment to an institution for children with developmental disabilities or mental disorders. See UJI 14-9005 NMRA (Children's court; special verdict; amenability specific factors).

Timing of required reports

Prior to an amenability hearing, the Children, Youth and Families Department must prepare a report on the child's amenability to treatment. See NMSA 1978, § 32A-2-17; State v. Jose S., 2007-NMCA-146, 142 N.M. 829, 171 P.3d 768. If the child is found not amenable to treatment or rehabilitation as a child in available facilities and not eligible for commitment to an institution for children with developmental disabilities or mental disorders, the adult probation and parole division of the corrections department must prepare a report before sentencing.

The ten (10)-day notice requirement in Paragraph G is longer than the five (5) days required by NMSA 1978, Section 32A-2-17(A), for providing a predispositional report to the defense. To the extent that this rule conflicts with Section 32A-2-17(A), the Committee considers the rule to be controlling. See Ammerman v. Hubbard Broadcasting, Inc., 1976-NMSC-031, & 16, 89 N.M. 307, 551 P.2d 1354 (affirming that the power to make rules that regulate practice and procedure in the courts are vested exclusively in the Supreme Court).

[Adopted by Supreme Court Order No. 14-8300-015, effective December 31, 2014.]