N.M. R. Child. Ct. 10-211

As amended through August 23, 2024

Rule 10-211 - Preliminary inquiry; filing of petition

A.Preliminary inquiry. Prior to the filing of a petition alleging delinquency, probation services shall complete a preliminary inquiry in accordance with the Children's Code [32A-1-1 NMSA 1978].

B.Petition; form. The petition shall be substantially in the form approved by the Supreme Court. The petition shall be signed by the children's court attorney or a staff attorney as permitted by the Children's Code.

C.Time limit. If the respondent child is in detention a petition shall be filed within two (2) days from the date of detention.

D.Notice of filing of the petition. If the parents, guardians or custodians of a respondent child alleged to be a delinquent child are not joined as parties in the delinquency proceeding, they shall be given notice of the filing of the petition in the manner provided by Rule 10-104 NMRA of these rules.

E.Amendment of offense. At any time prior to commencement of the adjudicatory hearing and subject to the provisions of Rule 10-212 NMRA, the court may allow the petition to be amended to charge the respondent child with an additional or different offense. Upon allowing such an amendment and upon the request of the respondent child, the court shall grant a continuance to allow further time for preparation.

N.M. R. Child. Ct. 10-211

As amended, effective 10/1/1996; Rule 10-204 NMRA, recompiled and amended as Rule 10-211 NMRA by Supreme Court Order No. 08-8300-042, effective 1/15/2009.

Committee commentary. - Under Paragraph A of Rule 10-211 NMRA the filing of a petition is a two-step process: (1) probation services conducts a preliminary inquiry and either recommends or refuses to recommend the filing of a petition; and (2) the children's court attorney reviews the matter to determine if there are legally sufficient grounds to proceed to court with the case. The children's court attorney makes the final determination whether or not to prosecute the child. The children's court attorney may do so even if probation services has not recommended a petition and may refuse to do so even if probation services has recommended the filing of the petition. However, probation services must have completed a preliminary inquiry before the petition can be filed.

The committee recognizes that the time limit in the rule differs from the time limit in the statute. The difference is intentional and the rule applies because the time limit is procedural. See Rule 10-107 NMRA for computation of time.

[As amended by Supreme Court Order No. 08-8300-042, effective January 15, 2009.]

ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, in Paragraphs C and D, changed "child" to "respondent child"; in Paragraph D, changed "petitions in delinquency proceedings" to "the petition", and changed the reference from Rule 10-105 NMRA to Rule 10-104N MRA; and added new Paragraph E. The 1996 amendment, effective October 1, 1996, added "Preliminary inquiry" to the rule heading, rewrote Paragraphs A, B and C, and added Paragraph D. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-204 NMRA was recompiled as Rule 10-211 NMRA, effective January 15, 2009.

Cross references. - For signing of petition, see Section 32A-1-10 NMSA 1978. For form and content of petition, see Section 32A-1-11 NMSA 1978. For time limit for filing of petition when child is detained, see Section 32A-2-13 NMSA 1978. Determination whether to file delinquency petition deemed social, not legal. - The "best interests" determination as to the filing of a delinquency petition is a social determination, not a legal determination. State v. Doe, 1982-NMCA-065, 97 N.M. 792, 643 P.2d 1244. And involves exercise of discretion. - A best interest determination, whether by probation services, the children's court attorney or both, involves the exercise of discretion. State v. Doe, 1982-NMCA-065, 97 N.M. 792, 643 P.2d 1244. Although determination by children's court attorney subject to judicial review. - The best interests determination of the children's court attorney is subject to judicial review by the children's court and by the New Mexico Court of Appeals. State v. Doe, 1982-NMCA-065, 97 N.M. 792, 643 P.2d 1244. Children's court attorney authorized to execute affidavit of disqualification of judge. - The power and duty of the children's court attorney to represent the state necessarily includes the authority to execute an affidavit of disqualification of a judge when the disqualification is done on behalf of the state. Smith v. Martinez, 1981-NMSC-066, 96 N.M. 440, 631 P.2d 1308. Rule does not apply to a petition to revoke probation; such petitions are governed by Rule 10-232. State v. Doe, 1978-NMCA-001, 91 N.M. 364, 574 P.2d 288. Dismissal of petition inappropriate where procedural violation tangential to remedy. - The normal remedy for a violation of the children's court time limits, dismissal of the petition, would be inappropriate where the procedural violation is only tangentially related to the asserted remedy. State v. Doe, 1980-NMCA-070, 94 N.M. 446, 612 P.2d 238. Delinquency petition based on alleged burglary not insufficient. - A best interests determination that a delinquency petition be filed, based on the fact that the child allegedly committed a burglary, is not insufficient as a matter of law. State v. Doe, 1982-NMCA-065, 97 N.M. 792, 643 P.2d 1244. Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For article, "The New Mexico Children's Code: Some Remaining Problems," see 10 N.M.L. Rev. 341 (1980).