N.M. R. Child. Ct. 10-169
N.M. R. Child. Ct. 10-169
Committee commentary. - Judicial powers of contempt provide courts with authority to enforce orders and protect the dignity of the court. New Mexico law classifies contempts of court as either civil or criminal. See Concha v. Sanchez, 2011-NMSC-031, & 24, 150 N.M. 268, 258 P.3d 1060. Civil contempt sanctions are remedial and may be imposed as coercive measures to compel a person to comply with an order of the court or to enforce the rights of a private party to a lawsuit. Id. & 25; State ex rel. Bliss v. Greenwood, 1957-NMSC-071, & 6, 63 N.M. 156, 315 P.2d 223. person held in civil contempt "carries the keys to his prison" and can end continuing contempt sanctions by complying with the court's orders. Concha, 2011-NMSC-031, & 25 (internal quotation marks and citation omitted). Criminal contempt sanctions are imposed to punish the contempt defendant for a completed act of contempt and to preserve the dignity and authority of the court. See Concha, 2011-NMSC-031, & 26; Greenwood, 1957-NMSC-071, & 6.
Many judges in New Mexico regularly address children who are unable to properly regulate their conduct inside or outside the courtroom. Indeed, courts can anticipate that children will behave improperly at times, and they can anticipate that children will not always follow directives.
The imposition of criminal contempt towards children, however, is unnecessary and is not in keeping with the purposes of the Children's Code. Historically, New Mexico has recognized that children need to be treated as children, even by courts. Since 1917, when the state established its first juvenile court, New Mexico courts have adopted special procedures governing treatment of children accused of criminal offenses. See Peyton v. Nord, 1968-NMSC-027, & 11, 78 N.M. 717, 437 P.2d 716. New Mexico's juvenile court aligned with the national juvenile court movement, which rejected the historic common law approach towards children, under which all children over seven years of age accused of criminal offenses were treated the same as adults. See In re Gault, 387 U.S. 1, 16-17 (1967). The juvenile justice system in New Mexico presumes that while children must be held accountable for criminal acts, their conduct "is not to be measured by the same standard as that of a matured person." State v. dam J., 2003-NMC-080, & 18, 133 N.M. 815, 70 P.3d 805 (larid, J., specially concurring) (citations and internal quotation marks omitted).
Similarly, the legislature has declared that the purpose of the Children's Code is "first to provide for the care, protection and wholesome mental and physical development of children." NMS 1978, § 32-1-3 (). The Code also seeks to reduce overrepresentation of minority children in the juvenile justice system. NMS 1978, § 32-1-3(E). The Delinquency ct, NMS 1978, §§ 32-2-1 to -33, for example, articulates legislative intent regarding treatment of juveniles accused of committing delinquent acts as follows:
A. Consistent with the protection of the public interest, to remove from children committing delinquent acts the adult consequences of criminal behavior, but to still hold children committing delinquent acts accountable for their actions to the extent of the child's age, education, mental and physical condition, background and all other relevant factors, and to provide a program of supervision, care and rehabilitation, including rehabilitative restitution by the child to the victims of the child's delinquent act to the extent that the child is reasonably able to do so;
B. To provide effective deterrents to acts of juvenile delinquency, including an emphasis on community-based alternatives;
E. To develop juvenile justice policies and procedures that are supported by data;
H. To develop community-based alternatives to detention;
I. To eliminate or reduce disparities based upon race or gender;
NMS 1978, § 32-2-2 (emphasis added).
The Delinquency ct reflects "an evolving concern that children be treated as children so long as they can benefit from the treatment and rehabilitation provided for in the Delinquency ct." State v. Jones, 2010-NMSC-012, & 32, 148 N.M. 1, 229 P.3d 474. Unlike the adult criminal justice system, which places emphasis on punishment and deterrence, the juvenile justice system "'favor[s] the rehabilitation and treatment of children.'" Id. & 35 (citing State v. Jose S., 2007-NMC-146, & 16, 142 N.M. 829, 171 P.3d 768). The New Mexico legislature and courts have uniformly emphasized that children's lack of maturity must be taken into account in decisions involving the justice system and children. See, e.g., State v. Jonathan M., 1990-NMSC-046, & 8, 109 N.M. 789, 791 P.2d 64. Importantly, New Mexico has chosen not to criminalize status offenses, activities that are unlawful due to a child's age and that would not be criminal if engaged in by an adult. See CLU v. City of lbuquerque, 1999-NMSC-044, & 25, 128 N.M. 315, 992 P.2d 866 (holding that the Children's Code preempts city ordinance providing criminal sanctions for violations of curfew). These principles strongly suggest that children are not proper subjects of the criminal contempt power and its focus on punishment.
In addition, the children who appear in court, especially those in abuse and neglect, mental health, and juvenile delinquency proceedings, often have experienced adverse childhood events and trauma. See the National Child Traumatic Stress Network "NCTSN Bench Card for the Trauma-Informed Judge," which is distributed through the National Council of Juvenile and Family Court Judges and is available at: https://swrtc.nmsu.edu/ files/2013/10/ Letter-and-judge_bench_cards_final.pdf (last visited ugust 28, 2016). The children in abuse and neglect proceedings, in particular, are parties to the proceeding because they are allegedly or have been adjudicated as abused or neglected children. See NMS 1978, § 32-4-10. The buse and Neglect ct requires that courts order "the department to implement and the child's parent, guardian or custodian to cooperate with any treatment plan approved by the court." See NMS § 32-4-22(C). The buse and Neglect ct thus contemplates that the adults - not the children - bear the responsibility for complying with the court's directives. Under these circumstances, holding a child in criminal contempt of court for misbehaving in the court room risks further traumatizing a child who already has been the subject of abuse or neglect.
By favoring the use of civil contempt powers as to children and prohibiting criminal contempt as to children, this rule balances the court's inherent authority with the larger purposes of the Children's Code. ccord NMS 1978, § 32-1-5(B) ("The supreme court shall adopt rules of procedure not in conflict with the children's code governing proceedings in the children's court, including rules and procedures for juries."); § 32-1-18(C) (providing that the court may "punish a person for contempt of court for disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders").
Judges, however, are not without tools to maintain the authority and integrity of the court. New Mexico law provides multiple alternatives to address misbehavior by children. The delinquency act provides courts with the authority and procedures to address delinquency. The mental health code provides courts with the authority and procedures to address circumstances when children require treatment. nd civil contempt provides courts with the authority to compel compliance with judicial orders. Thus, despite the rule's focus on helping the child achieve appropriate behavior, rather than on punishment, the judiciary remains well-equipped to respond to contemptuous conduct without resorting to use of the criminal contempt power.
[Approved by Supreme Court Order No. 17-8300-019, effective for all cases filed or pending on or after December 31, 2017; suspended by Supreme Court Order No. 21-8300-032, effective November 22, 2021, until further order of the Court.]