N.M. R. Child. Ct. 10-121
N.M. R. Child. Ct. 10-121
Committee commentary. - Under Paragraph A of this rule, the parties in delinquency proceedings are the respondent child, the state, a parent of a child alleged to be delinquent if named under to NMSA 1978, Section 32A-2-28(1993), and anyone allowed to intervene under Rule 10-122 NMRA. The children's court attorney is a district attorney who represents the state in these proceedings See NMSA 1978, § 32A-1-6(A)(2005). An attorney will be appointed for a child not otherwise represented by counsel, as set forth in NMSA 1978, Section 32A-2-14(2003) and Rule 10-223 NMRA.
Paragraph B of this rule defines the parties in abuse and neglect cases. These parties are the department, the respondent parent, guardian, or custodian, and the child, as well as any other person or entity made a party by the court. The children's court attorney is selected by and represents the department.
As noted, the child in the abuse or neglect case is a party to the case. If under the age of fourteen (14), the child is represented by a guardian ad litem, who is an attorney appointed by the court to represent the child's best interest. If the child is fourteen (14) or over, the court appoints an attorney to represent the child in the same way an attorney represents an adult under the traditional client-directed model of representation. The youth's attorney, although he or she may advise differently, follows the instructions of the client. See NMSA 1978, § 32A-4-10(2005) and Rules 10-312 and 10-313 NMRA.
ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, deleted "intervention" in the title of the rule; in Paragraph A, added "and any person made a party by the court" at the end of the sentence; in Paragraph B(2), added "guardian or custodian"; in Paragraph B(3), deleted the sentence which required the court to appoint a guardian ad litem to represent a child alleged to be neglected or abused or in need of court ordered services upon the filing of a petition; added Subparagraph (4) of Paragraph B; in Paragraph D, deleted the sentence which named the parties in a termination of parental rights proceeding as the state, the parents, the legal guardians and any person who is required by law to be made a party, changed "supplemental petition" to "motion", changed "parent" to "parent who has a constitutionally protected liberty interest in the child", and added "and such parent shall be served with a summons and a copy of the motion in the manner provided by Rule 10-103 NMRA" at the end of the sentence; and deleted former Paragraph E which provided for intervention by parents, guardian, custodian or the child's Indian tribe. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, portions of former Rule 10-108 NMRA have been recompiled as Rule 10-121 NMRA, effective January 15, 2009. Applicability of child custody jurisdiction statute. - That the nonparent custodians of a child were "acting as parents" pursuant to Section 40-10-3H NMSA 1978 [now Section 40-10A-102(13) NMSA 1978] because they had physical custody of the child and claimed a right to custody, had no applicability in a neglect or abuse case so as to entitle the custodians to the protections afforded in a termination of parent rights case. In re Agnes P., 1990-NMCA-091, 110 N.M. 768, 800 P.2d 202. Rights of de facto custodians. - Because the nonparent custodians of a child failed to establish any right to the child, other than their previous status as de facto custodians, the children's court could properly discontinue their involvement in a treatment plan, dismiss them from the neglect action, and direct that the child be freed for adoption by other qualified and suitable persons. While through their status they appeared to have assumed all the obligations of parents, an in loco parentis status did not entitle them to parental termination proceedings. In re Agnes P., 1990-NMCA-091, 110 N.M. 768, 800 P.2d 202. A guardian appointed for a child pursuant to the Kinship Guardianship Act must be a party in proceedings on petitions alleging neglect or abuse or a family in need of court-ordered services, although such guardians are not necessary and indispensable parties to abuse and neglect proceedings as defined by Rule 1-019 NMRA, which is a rule of civil procedure that does not govern children's court cases under the Children's Code. State ex rel. Children, Youth & Families Dep't v. Djamila B., 2015-NMSC-003.