N.M. R. Child. Ct. 10-315
N.M. R. Child. Ct. 10-315
Committee commentary. - See Section 32A-4-18 NMSA 1978 (2005), which provides criteria for the issuance of custody orders. The Rules of Evidence, other than those with respect to privileges, do not apply to custody hearings. See Rule 11-1101 NMRA of the Rules of Evidence.
The 2016 amendments to the rule coincide with the adoption of new regulations by the Bureau of Indian Affairs (BIA) that are intended to "clarify the minimum Federal standards governing implementation of the Indian Child Welfare Act (ICWA) to ensure that ICWA is applied in all States consistent with the Act's express language, Congress's intent in enacting the statute, and to promote the stability and security of Indian tribes and families." 25 C.F.R. § 23.101. Consistent with the new regulations, the amended rule places an affirmative duty on the court to ask each participant at the commencement of every custody hearing whether the participant knows or has reason to know that the child is an Indian child. See 25 C.F.R. § 23.107(a) (providing that the court shall make such an inquiry at the commencement of an "emergency or voluntary or involuntary child-custody proceeding").
The amended rule further requires the court to determine, based on the information provided by the participants, whether the child is in fact an Indian child or, at a minimum, whether there is reason to know that the child is an Indian child. If either condition is met, the rule requires the court to treat the child as an Indian child subject to ICWA and to ensure that the department has complied and continues to comply with its responsibilities under ICWA. See 25 C.F.R. § 23.107(b) (requiring the court to confirm that the department has used "due diligence to identify and work with all of the Tribes of which there is reason to know that the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership)"); id. §23.111 (setting forth the notice and timing requirements for child-custody proceedings that involve an Indian child); see also Form 10-521 NMRA (ICWA notice).
The law is unsettled about whether ICWA's notice and timing requirements apply at the custody hearing. See 25 U.S.C. § 1912(a) (providing that no proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, and Tribe and requiring the court to grant up to an additional 20 days to prepare for the hearing upon request of the child's parent, Indian custodian, or tribe). The Supreme Court has held that ex parte and custody hearings are emergency proceedings under ICWA and therefore are exempt from the requirements of §1912. See State ex rel. Children, Youth and Families Dep't v. Marlene C., 2011-NMSC-005, 34, 149 N.M. 315, 248 P.3d 863 ("New Mexico's ex parte and custody hearings are emergency proceedings under [25 U.S.C.] §1922 to which the requirements of [25 U.S.C.] §1912 do not apply.").
Recently adopted federal regulations, however, clarify the standards imposed in emergency proceedings under ICWA and are difficult to reconcile with the procedures allowed under New Mexico law. Compare, e.g., 25 C.F.R. § 23.113(b) (providing that the emergency removal or placement of an Indian child must be based on a finding that the removal or placement "is necessary to prevent imminent physical damage or harm to the child"), and id. §23.113(e) (providing that an emergency proceeding should not be continued for more than 30 days without a finding, inter alia, that "restoring the child to the parent or Indian custodian would subject the child to imminent physical damage or harm"), with NMSA 1978, § 32A-4-18(C) (providing that custody may be awarded to the department based upon a showing that, inter alia, "the child will be subject to injury by others if not placed in the custody of the department"), and id. § 32A-4-19(A) (providing that an adjudicatory hearing shall commence within 60 days of service on the respondent).
Regardless of the continued validity of Marlene C., the committee views the new regulations, taken as a whole, as a directive to engage potentially interested Tribes as early as possible in a child-custody proceeding in which an Indian child may be affected. See 25 C.F.R. § 23.101. Thus, the committee recommends as a best practice that the department, at a minimum, should inform the Tribe of the custody hearing when the department knows or has reason to know that the child is an Indian child prior to the custody hearing.
If the court determines at the custody hearing that the child is not an Indian child and that there is no reason to know that the child is an Indian child, the amended rule requires the court to order the participants to inform the court of any information that they subsequently receive that provides reason to know that the child is an Indian child. Although not required by rule or regulation, the committee encourages courts to inquire at each proceeding following the custody hearing whether any participant has received such information.
[As amended by Supreme Court Order No. 08-8300-042, effective January 15, 2009; as amended by Supreme Court Order No. 16-8300-038, effective for cases pending or filed on or after November 28, 2016.]
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-038, effective November 28, 2016, added provisions to coincide with the adoption of new regulations by the Bureau of Indian Affairs that are intended to clarify the minimum federal standards governing implementation of the Indian Child Welfare Act (ICWA), placed a duty on the court to determine whether a child, who is the subject of a custody hearing, is an Indian child under the ICWA, and if so, to comply with the ICWA and its regulations, and revised the committee commentary; added new Paragraphs D through G and redesignated former Paragraphs D and E as Paragraphs H and I, respectively; and in the committee commentary, added the last six undesignated paragraphs. The 2014 amendment, approved by Supreme Court Order No. 14-8300-004, effective July 1, 2014, required the court to make an audio recording of custody hearings and to provide a copy of the recording to any party that wishes to appeal; required the court to make a written order of its decision; permitted appeals by a party who has been granted or denied custody; required that the appeal proceed as an expedited appeal; and added Paragraphs C, D, and E. The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, deleted "abuse and neglect" at the end of the title; deleted former Paragraph C which specified grounds for not releasing a child to the child's parents, guardian or custodian at a custody hearing; deleted former Paragraph D which provided for alternative placements of a child if the court determined that custody pending adjudication was appropriate; and deleted former Paragraph E which provided for a custody hearing by a special mater. The 1999 amendment, effective August 1, 1999, added "abuse and neglect" to the section heading; in Paragraph A, in the first sentence, deleted "If the child alleged to be abused or neglected is in the custody of the department or the department has petitioned the court for temporary custody" at the beginning and added "alleging abuse or neglect" at the end, and added "At the custody hearing the court shall" at the beginning of the second sentence; deleted former Subparagraph D(3) relating to the court's authority to order the respondent or child alleged to be neglected or abused to undergo appropriate diagnostic examinations or evaluations; rewrote Paragraph E which formerly read "Referees. The provisions of this rule may be carried out by a referee appointed by the court"; deleted former Paragraph F relating to evidence; and made gender neutral and stylistic changes throughout the section. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-303 NMRA was recompiled as Rule 10-315 NMRA, effective January 15, 2009.
Cross references. - For criteria for detention of children, see Section 32A-2-11 NMSA 1978. For statutory provision relating to custody hearings, see Section 32A-4-18(B) NMSA 1978. For disqualification of judge in proceedings where his impartiality might be questioned, see Code of Judicial Conduct, Rule 21-400 NMRA. Post-deprivation hearing within reasonable period constitutional. - In the context of child abuse and neglect proceedings, a parent's familial and due process rights are balanced against the state's interest in protecting and caring for neglected children. In achieving a balance of these interests, a post-deprivation hearing within a reasonable period does not violate the minimum federal due process rights of the parent. Yount v. Millington, 1993-NMCA-143, 117 N.M. 95, 869 P.2d 283. Parties' stipulation to custody in department creates consent decree. - A stipulation entered into between the parties, following a hearing in which a physician testified that the child's condition was the result of neglect and in which the natural parents did not contest the neglect allegations and agreed to temporary custody in the department, was in effect a consent decree under Rule 10-307 NMRA, and not a temporary custody order under this rule. State ex rel. Dep't of Human Servs. v. Doe, 1985-NMCA-078, 103 N.M. 260, 705 P.2d 165. Law reviews. - For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980). For note, "Children's Code - Neglect - State ex rel. Health & Social Services Department v. Natural Father," see 12 N.M.L. Rev. 505 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 43 C.J.S. Infants § 22.