N.M. R. Child. Ct. 10-343
N.M. R. Child. Ct. 10-343
ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-017, effective December 31, 2015, in Subparagraph E(1), after "untimely", deleted "petition" and added "motion". The second 2014 amendment, approved by Supreme Court Order No. 14-8300-015, effective December 31, 2014, increased the time by which the children's court may extend the time for commencement of an adjudicatory hearing; provided the procedure for extensions of time in children's court; authorized the children's court to deny or grant, with sanctions, an untimely petition for extension of time; in Paragraph C, in the first sentence, after "extensions granted by the children's court", deleted "judge may" and added "shall", after "shall not exceed", changed "thirty (30)" to "sixty (60)", after "sixty (60) days", added the remainder of the sentence, and added the second and third sentences; deleted former language which required a party seeking an extension of time to file a verified petition stating facts that supported an extension of time, provided that the children's court or the Supreme Court could grant an extension of time for good cause if the petition was filed within the applicable time limits or for exceptional circumstances if the petition was filed within ten days after the expiration of the applicable time limits, provided time limits for filing a response to the petition, provided that a hearing would be held only upon order of the Supreme Court, and required the Supreme Court to fix the time limit for commencement of the adjudicatory hearing if the court granted the extension of time; added Paragraph D; in Paragraph E, deleted the former language which provided that if an adjudicatory hearing had not begun within the applicable time limits or an extension of time, then the children's court could dismiss the petition with prejudice or sanctions; and in Paragraph E, added Subparagraphs (1) and (2). The committee commentary was withdrawn as part of the 2014 amendments to Rule 10-343 NMRA. The first 2014 amendment, approved by Supreme Court Order No. 14-8300-004, effective July 1, 2014, clarified the type of judgment involved in an appeal that determines the deadline for the commencement of an adjudicatory hearing and the court in which the mandate or order is filed; excepted appeals from orders issued in custody hearings from the time limits for commencement of adjudicatory hearings; in Subparagraph (4) of Paragraph A, after "in the event of an appeal", added "from a judgment and disposition on a petition alleging abuse or neglect" and after "order is filed in the", deleted "district" and added "children's"; and in Paragraph D, added the second sentence. The second 2008 amendment, approved by Supreme Court Order No. 08-8300-058, effective January 15, 2009, in Paragraph D, after "the petition", replaced "shall" with "may" and added "or the court may consider other sanctions as appropriate" at the end of the sentence. The first 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, replaced the former committee commentary with the current version. The 1999 amendment, effective for cases filed in the Children's Court on and after February 15, 1999 and approved provisionally for six months until July 15, 1999, added "continuances" to the rule heading; in Paragraph A, substituted "sixty (60)" for "ninety (90)"; added new Subparagraph A(2); redesignated Subparagraphs A(2) and A(3) as Subparagraphs A(3) and A(4) respectively; in Paragraph C, deleted "only" following "extended" in the introductory paragraph; added Subparagraph C(1) and numbered the undesignated paragraph as Subparagraph C(2). Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-320 NMRA was recompiled as Rule 10-343 NMRA, effective January 15, 2009. Rule 10-343 NMRA controls dismissal for failure to comply with time limitations. - Rule 10-343 NMRA, which allows the court discretion to dismiss for failure to meet time limit requirements, prevails over Section 32A-4-19 NMSA 1978, which requires dismissal for failure to meet time limit requirements. State ex rel. Children, Youth & Families Dep't v. Arthur C., 2011-NMCA-022, 149 N.M. 472, 251 P.3d 729. Change of rule during pendency of case. - Where Rule 10-343 NMRA replaced Rule 10-320 NMRA, which required dismissal for failure to meet time limit requirements, after the filing of a child abuse and neglect petition but before the adjudication of the petition, the court properly applied Rule 10-343 NMRA to determine whether the case should be dismissed for failure to comply with time limit requirements. State ex rel. Children, Youth & Families Dep't v. Arthur C., 2011-NMCA-022, 149 N.M. 472, 251 P.3d 729. Failure to comply with time limit requirements. - Where the Children, Youth and Families Department failed to comply with the time limits for adjudicating a petition for child abuse and neglect, and the district court refused to dismiss the case based on the court's concern for the child's safety and well being and the need to quickly determine the child's custody status, the court did not abuse its discretion. 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 rule 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; the rule 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. Rule compared regarding noncompliance with time limits. - Despite notable similarities of their provisions, this rule, Rule 5-604 NMRA and Rule 10-226 NMRA, each has an additional provision that Rule 10-229 NMRA does not have. These rules all provide that noncompliance with the time limits of the rules or with the time limits of any extensions granted shall result in dismissal with prejudice of the charges against the accused, and Rule 10-229 NMRA has no such provision. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, cert. granted, 2005-NMCERT-004.