N.M. R. Child. Ct. 10-342
N.M. R. Child. Ct. 10-342
Committee commentary. - The rule institutes consent decree and admissions procedures for abuse and neglect cases. The consent decree in an abuse or neglect case differs from that in a delinquency proceeding in that the parties may agree that the department have legal custody of the child for a period of up to six months or the child may be placed under supervision in his own home or the home of another for the six-month period.
See generally Rules 10-227 and 10-228 NMRA on consent decrees in delinquency cases.
Paragraph D makes a distinction between admissions and no contest pleas. With an admission, the respondent may be asked questions to establish the factual basis for the charges. With a no contest plea, the children's court attorney is required to set forth the factual basis.
[As recompiled and amended by Supreme Court Order No. 08-8300-042, effective January 15, 2009; as amended by Supreme Court Order, No. 12-8300-024, effective for all cases filed or pending on or after January 7, 2013.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-024, effective January 7, 2013, provided for an admission by entry of a no contest plea; in the title of the rule, after "Admission", added "including no contest pleas", in Subparagraph (2) of Paragraph A, at the beginning of the first sentence, added "entering a plea of no contest by" and added the second sentence; in Paragraph B, in the first sentence, after "after an admission", added "including the entry of a no contest plea"; in Paragraph C, in the first sentence, after "accept an admission", added "including the entry of a no contest plea", added Subparagraph (3), relettered former Subparagraph (4) as Subparagraph (5), in Subparagraph (5), after "understands that by admitting", added "including by entering a no contest plea", relettered former Subparagraph (5) as Subparagraph (6), and in Subparagraph (6), after "the admission", added "including the entry of a no contest plea"; in Paragraph D, in the title of the paragraph, after "Basis for admission", added "no contest plea", in the first sentence, after "judgment upon an admission", added "including the entry of a no contest plea" and after "factual basis for the admission", added "including the entry of a no contest plea", and added the second sentence; in Paragraph E, after "acceptance of an admission", added "including a no contest plea"; in Paragraph G, in the first sentence, after "Evidence of an admission", added "including a no contest plea"; and in Paragraph H, after "reject the admission", added "including a no contest plea" and after "five (5) days after the admission", added "including a no contest plea". The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, in Paragraph G, changed "statements made in connection therewith is not admissible in any proceeding against the respondent" to "conduct or statements made during negotiations shall be considered to be 'compromise negotiations' under Rule 11-408 NMRA and is not admissible to prove abuse or neglect" and added last sentence; deleted former Paragraph I which provided that the Rules of Evidence apply to inquiries made to determine whether there is a factual basis for admission or a consent decree; relettered former Paragraphs J and K as Paragraphs I and J; in Paragraph I, deleted the former rule which provided that consent decrees in abuse and neglect proceedings may be extended by the department and may be terminated in accordance with Rule 10-225 NMRA and added the current rule; and in Paragraph J, changed "children's court attorney" to "department". Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-307 NMRA was recompiled as Rule 10-342 NMRA, effective January 15, 2009. 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 this rule, and not a temporary custody order under Rule 10-303 NMRA. State ex rel. Dep't of Human Servs. v. Doe, 1985-NMCA-078, 103 N.M. 260, 705 P.2d 165. Inquiry required before acceptance of admission. - Failure of the children's court to personally address a minor mother in open court concerning her understanding and consent to a stipulated judgment and disposition voided her purported admission that her children were neglected and, in a subsequent proceeding to terminate her parental rights, the court's use of such admission as the basis of its finding that the children were neglected violated the mother's due process rights. State ex rel. Children, Youth & Families Dep't v. Lilli L., 1996-NMCA-014, 121 N.M. 376, 911 P.2d 884. Inquiry into waiver of right to contest termination. - Without any inquiry into whether it was proper to infer from her absence that a mentally-ill mother voluntarily and unequivocally intended to waive her right to contest a termination proceeding, she faced an unacceptably high risk of erroneous deprivation of her fundamental rights. State ex rel. Children, Youth & Families Dep't v. Stella P., 1999-NMCA-100, 127 N.M. 699, 986 P.2d 495. Am. Jur. 2d, A.L.R. and C.J.S. references. - 43 C.J.S. Infants §§ 23, 24, 28 to 30.