N.M. R. Child. Ct. 10-243
N.M. R. Child. Ct. 10-243
Committee commentary. - The adjudicatory hearing is sometimes described in the Children's Code as the "hearing on the petition" and is the equivalent to a trial in the adult criminal system.
[As amended by Supreme Court Order No. 08-8300-042, effective January 15, 2009; as amended by Supreme Court Order No. 14-8300-015, effective December 31, 2014; as amended by Supreme Court Order No. 15-8300-017, effective December 31, 2015.]
ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-017, effective December 31, 2015, in Paragraph F, after "untimely", deleted "petition" and added "motion"; and in the committee commentary, after "system.", deleted "The time limits in this rule for commencing an adjudicatory hearing are jurisdictional." The 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; deleted the former title "Adjudicatory hearing" and added the current title; in Paragraph D, in the title, after "time", deleted "by children's court", in the first sentence, after "extensions granted by the children's court", deleted "judge may" and added "shall", after "shall not exceed", changed "sixty (60)" to "ninety (90)", after "ninety (90) days", added the remainder of the sentence, and added the second and third sentences; deleted former Paragraph E which permitted the Supreme Court or a judge of the Supreme Court to extend the time for commencement of an adjudicatory hearing, required that a petition be filed stating the extraordinary circumstances justifying an extension of time, provided time limitations for filing a petition and 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 current Paragraph E; in Paragraph F, deleted the former language of the paragraph 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 F, added Subparagraphs (1) and (2). The 2009 amendment, approved by Supreme Court Order No. 09-8300-003, effective April 6, 2009, in Paragraph F, after "the petition", replaced "shall" with "may" and added "or the court may consider other sanctions as appropriate". The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, in Subparagraph (4) of Paragraph A, changed the reference from Rule 10-221 NMRA to Rule 10-242 NMRA; in Subparagraph (7) of Paragraph A, changed "taken into custody" to "taken into custody in this state" and added the last sentence; in Subparagraph (6) of Paragraph B, changed "taken into custody" to "taken into custody in this state" and added the last sentence; and added new Paragraph G. The 2000 amendment, effective for cases filed in the Children's Court on and after May 15, 2000, substituted "Child" for "Respondent" in the bold heading of Paragraph A, added the last two sentences in Subparagraph A(3), inserted "pursuant to Rule 10-221 NMRA" in Subparagraph A(4), added Subparagraph A(8) and redesignated former Subparagraph A(8) as A(9), added Subparagraph B(7) and redesignated former Subparagraph B(7) as B(8), added Paragraph C and redesignated the remaining paragraphs accordingly. The 1997 amendment, effective February 1, 1997, substituted "child" for "respondent" and "defendant" throughout the rule; added Subparagraphs A(2), A(3), and B(2) and redesignated the remaining subparagraphs accordingly; added "or the date an order is entered quashing the warrant for failure to appear" in Subparagraphs A(7) and B(6); rewrote Subparagraphs A(8) and B(7), which formerly read: "in the event a motion for transfer is filed by the children's court attorney, the date an order is filed denying the motion"; substituted "time limits set forth in this rule for a child in detention" for "time limits set forth in Paragraph A of this rule" and substituted "one-hundred twenty (120) days" for "ninety (90) days" in Paragraph B; rewrote Paragraph C which formerly related to failure to appear; and in Paragraph D, added "by Supreme Court" to the paragraph heading, and in the first sentence, added "For good cause shown" at the beginning, deleted "only" following "extended", and deleted "for good cause shown" at the end. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-226 NMRA was recompiled as Rule 10-243 NMRA, effective January 15, 2009.
Cross references. - For time limitations on adjudicatory hearings, see Sections 32A-2-15, 32A-4-18 and 32A-4-19 NMSA 1978. Untimely trial. - Where the child was arrested on February 7, 2010 for aggravated battery on a police officer; the state filed notice of intent to charge the child as a youthful offender on February 15, 2010 and filed a criminal information on March 16, 2010; the child was arraigned on March 14, 2010; and the child was held in detention since the child was arrested; and the court granted a sixty-day extension of time to commence trial until May 9, 2010, the child's exclusive remedy for the delay in commencing trial lay in the speedy trial protections of the Sixth Amendment and Article II, Section 14 of the New Mexico Constitution. State v. Leticia T., 2012-NMCA-050, 278 P.3d 553, cert. granted, 2012-NMCERT-005. Effect of grand jury return of a no bill within the thirty-day deadline. - Where the State filed a delinquency petition against the child alleging that the child committed nine delinquent acts which included two youthful offender offenses and seven delinquent offender offenses; the petition was served on the child on March 16, 2009; the State presented all of the delinquent acts listed in the petition to a grand jury; on April 3, 2009, the grand jury found no probable cause and returned a no-bill on all of the delinquent acts; on April 13, 2009, the State filed a motion for an extension of time for trial; and on April 17, 2009, the court held a hearing on pending motions and dismissed the petition with prejudice based on timeliness grounds, the court lacked any procedural authority to dismiss the petition with prejudice on the ground that the thirty-day deadline had been violated because the grand jury no-bill constituted a dismissal of the petition without prejudice within the thirty-day deadline and no charges were pending against the child at the time of the April 17, 2009 hearing. State v. Oscar Castro H., 2012-NMCA-047, 277 P.3d 467, cert. denied, 2012-NMCERT-004. Rule compared regarding noncompliance with time limits. - Despite notable similarities of their provisions, this rule, Rule 5-604 NMRA and Rule 10-320 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. Parole revocation. - The children's court procedure for an original petition alleging delinquency applies to petitions for revocation of parole. State v. Doe, 1977-NMCA-065, 90 N.M. 568, 566 P.2d 117. Time limits jurisdictional. - Time limits set forth in this rule are jurisdictional; thus, an issue involving the improper extension of time for conducting a trial on the merits did not require preservation for appellate review. In re Ruben O., 1995-NMCA-051, 120 N.M. 160, 899 P.2d 603. Application to detained child. - The 30-day time limit specified in this rule applies to a detained child pending an adjudicatory hearing because the state has not proven any allegations against the child and such limit protects the child's liberty interests. State v. Anthony M., 1998-NMCA-065, 125 N.M. 149, 958 P.2d 107, cert. denied, 125 N.M. 145, 958 P.2d 103. The 30-day time limit does not apply to youthful offender proceedings in which probable cause is found; such proceedings are subject to the six-month time limit set forth in the Rules of Criminal Procedure. State v. Michael S., 1998-NMCA-041, 124 N.M. 732, 955 P.2d 201. "Detention" ends upon being committed. - A child who, while being detained on a second delinquency petition, is adjudicated delinquent and committed to a boys' school on the first delinquency petition is no longer in detention following such commitment and the 30-day time limit for commencing an adjudicatory hearing is, therefore, inapplicable. State v. Anthony M., 1998-NMCA-065, 125 N.M. 149, 958 P.2d 107, cert. denied, 125 N.M. 145, 958 P.2d 103. Child who was already in detention because of a prior delinquency adjudication was not considered to be in detention for purposes of this rule; therefore, the 120-day time limitation of Paragraph B applied to the second adjudication, following a mistrial. State v. Augustine R., 1998-NMCA-139, 126 N.M. 122, 967 P.2d 462. Calculation of time period. - The time period for holding a hearing becomes fixed by presence or absence of the detention of the child after the detention hearing. State v. Doe, 1977-NMCA-065, 90 N.M. 568, 566 P.2d 117. Effect of subsequent detention. - A revocation of a child's release for a violation of the conditions thereof did not change the applicable time period for holding the hearing. State v. Doe, 1977-NMCA-065, 90 N.M. 568, 566 P.2d 117. Child held on two separate detentions. - Where a child was the subject of two separate delinquency petitions at the time he was detained, the period for commencement of the adjudicatory hearing started when the children's court determined that the child would continue to be detained on one of the petitions, not when he was arrested on a bench warrant issued for the other petition. State v. Isaiah A., 1997-NMCA-116, 124 N.M. 237, 947 P.2d 1057. Good cause for continuance. - The absence of witnesses and the fact that the judge was occupied with a jury trial constituted good cause for continuances. State v. Doe, 1977-NMCA-065, 90 N.M. 568, 566 P.2d 117. No abuse of discretion in granting continuance.- Where child appealed the district court's order granting the state's motion for extension to commence child's adjudication, the district court did not abuse its discretion in granting the state's motion, because the record established that child remained in detention because child's parents did not want him in their home and the extension was necessary in order to determine an appropriate placement for child, based on a pending community service agency assessment and identification of a possible out-of-home placement for child. State v. Anthony L., 2019-NMCA-003, cert. denied. "Appeal". - The term "appeal" in Subparagraph A(6) includes a request for review over which the appellate court lacks jurisdiction. State v. Michael C., 1987-NMCA-118, 106 N.M. 440, 744 P.2d 913. "Appeal", for purposes of Paragraph B(5), should be defined as a seeking of review by a higher court, including seeking supreme court review under a peremptory writ. State v. Felipe V., 1986-NMCA-117, 105 N.M. 192, 730 P.2d 495. Rule 10-226 [10-243] NMRA governs the time limits within which the children's court must hear a petition to revoke probation. State v. Katrina G., 2007-NMCA-048, 141 N.M. 501, 157 P.3d 66. Child in detention for a separate offense. - Where the child was in detention for a separate offense, but was not in detention for the original offense for which revocation of probation was sought, the 120 day time limit applied to the hearing on the petition to revoke probation. State v. Katrina G., 2007-NMCA-048, 141 N.M. 501, 157 P.3d 66. 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).