N.M. R. Child. Ct. 10-246

As amended through November 1, 2024

Rule 10-246 - Dispositional proceedings

A.Access to reports. At least five (5) days before a hearing, copies of any social, diagnostic or other predisposition reports ordered by or submitted to the court shall be provided to the parties.

B.Time limits. When the respondent child is in detention, dispositional proceedings shall begin within thirty (30) days from the date the court concludes the adjudicatory hearing in a delinquency proceeding or trial in a youthful offender proceeding or accepts an admission of the factual allegations of the petition. The dispositional proceedings shall be concluded as soon as practical. If the hearing is not begun within the time specified in this paragraph, unless the respondent child has agreed to the delay or has been responsible for the failure to comply with the time limits, the respondent child shall be released from detention on such conditions as appropriate until the dispositional hearing can be commenced.

C.Commitment for diagnosis. The court may order a respondent child adjudicated as a delinquent child or convicted in a youthful offender proceeding to be committed to a facility for purposes of diagnosis and recommendations to the court as to what disposition is in the best interests of the child and the public. If the court enters an order transferring the child for a diagnostic commitment pursuant to the Children's Code [32A-1-1 NMSA 1978], the dispositional proceedings shall be recommenced within forty-five (45) days after the filing of the court's order. If the hearing is not recommenced within the time specified in this paragraph, unless the respondent child has agreed to the delay or has been responsible for the failure to comply with the time limits, the respondent child shall be released from detention on such conditions as appropriate until the dispositional hearing can be commenced.

D.Extension of time. For good cause shown the time for commencing a disposition hearing may be extended by the Supreme Court, a justice thereof, or a judge designated by the Supreme Court. The party seeking an extension of time shall file with the clerk of the Supreme Court a verified petition for extension concisely stating the facts petitioner deems to constitute good cause for an extension of time to commence the dispositional hearing. The petition shall be filed within the applicable time limits prescribed by this rule, except that it may be filed within ten (10) days after the expiration of the applicable time limits if it is based on exceptional circumstances beyond the control of the state or children's court which justify the failure to file the petition within the applicable time limit. A party seeking an extension of time shall forthwith serve a copy thereof on opposing counsel. Within five (5) days after service of the motion, opposing counsel may file an objection to the extension setting forth the reasons for such objection. No hearing shall be held except upon order of the Supreme Court. If the Supreme Court finds that there is good cause for the granting of an extension beyond the applicable time limit, it shall fix the time limit within which the dispositional hearing must be commenced.

N.M. R. Child. Ct. 10-246

As amended, effective 4/1/1997; as amended by Supreme Court Order No. 06-8300-004, effective 3/15/2006; Rule 10-229 NMRA, recompiled and amended as Rule 10-246 NMRA by Supreme Court Order No. 08-8300-042, effective 1/15/2009.

Committee commentary. - The purpose of the five day notice requirement is to assure that the respondent and the state have a reasonable opportunity to test the accuracy of any social, medical, psychological and psychiatric reports before they are considered by the court at disposition.

There is no time limit for the dispositional hearing of a child who is not in detention or undergoing diagnosis, but the time limits imposed by this rule and the procedures that must be followed for an extension when the child is in detention or committed for diagnosis are mandatory. The remedy when the hearing is not begun or recommenced as provided in the rule is release from detention, not dismissal of the case.

[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 A, B, and D, changed "child" to "respondent child". The 2006 amendment, approved by Supreme Court Order No. 06-8300-004 effective March 15, 2006, adds youthful offenders to the first sentence of Paragragh C and adds the last sentence of Paragraph C providing for the release of a child if the dispositional proceedings are not commenced within the time prescribed. The 1997 amendment, effective April 1, 1997, substituted "proceedings" for "hearing" in the rule heading, rewrote Paragraphs A and B, and added Paragraphs C and D. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-229 NMRA was recompiled as Rule 10-246 NMRA, effective January 15, 2009.

Cross references. - For hearing regarding disposition of child, see Section 32A-2-13 NMSA 1978. For predisposition studies, reports and examinations, see Section 32A-2-17 NMSA 1978. For disposition of youthful offender, see Section 32A-2-20 NMSA 1978. Effect of 1997 amendment. - The 1997 amendment to this rule considerably shortened the time permitted for diagnostic commitment. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, cert. granted, 2005-NMCERT-004. The 1997 amendment's reduction of the time limit to 45 days brought the rule into compliance with the Children's Code. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, cert. granted, 2005-NMCERT-004. Remedy for failure to comply with time limits. - The remedy for failure of the court to comply with the time limit to recommence dispositional proceedings of a child, adjudicated as a youthful offender, who is committed for diagnosis prior to disposition is the release of the child from custody until the hearing can proceed, not the dismissal of charges or the vacation of a judgment. State v. Stephen F., 2006-NMSC-030, 140 N.M. 24, 139 P.3d 184. Committee commentary to rule was not changed in any way after the 1997 amendment significantly changed the rule. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, cert. granted, 2005-NMCERT-004. When court filed written order directing that child be committed for diagnostic evaluation, the time limit for recommencement of the dispositional hearing was triggered. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, cert. granted, 2005-NMCERT-004. Time limit in Paragraph C is mandatory. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, aff'd, 2006-NMSC-030, 140 N.M. 24, 139 P.3d 184. Trial court violated Paragraph C of this rule where it did not recommence child's dispositional hearing within 45 days of an order committing child for diagnostic evaluation. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, aff'd, 2006-NMSC-030, 140 N.M. 24, 139 P.3d 184. Diagnostic evaluation. - The 45-day time limit in Rule 10-229 NMRA, rather than the 90-day time limit in Rule 5-701 NMRA, applies to a child, adjudicated as a youthful offender, who is committed for diagnosis prior to disposition. State v. Stephen F., 2006-NMSC-030, 140 N.M. 24, 139 P.3d 184. Addition of Paragraph D by 1997 amendment manifests a heightened emphasis on the importance of the time limits, as compared to the pre-1997 version. State v. Stephen F., 2005-NMCA-048, 137 N.M. 409, 112 P.3d 270, cert. granted, 2005-NMCERT-004. Purpose of time requirements is to ensure prompt handling of children's court matters. State v. Doe, 1979-NMCA-063, 93 N.M. 31, 595 P.2d 1221. Court's discretion does not permit it to delay a hearing. - There is no conflict between the time limit within which a dispositional hearing must be held under Paragraph B of this rule and Subsection H of 32-1-31 NMSA 1978 granting discretion to the children's court in a wide variety of circumstances; the rule simply states that in one specific circumstance that discretion should not be exercised to delay a hearing. In re Paul T., 1994-NMCA-123, 118 N.M. 538, 882 P.2d 1051. If Paragraph B violated, judgment void. - Judgment entered by the children's court revoking probation and committing a juvenile to the custody of the Children, Youth and Families Department was void because the dispositional hearing following the conclusion of the adjudicatory hearing was not held within the time period mandated by Paragraph B. In re Paul T., 1994-NMCA-123, 118 N.M. 538, 882 P.2d 1051. Where a defendant agrees to be sentenced as an adult by entering into a plea and disposition agreement in which the defendant also waives any motions, defenses, objections, or requests, either made or that could thereafter be made, the defendant has waived the time limit on dispositional hearings under this rule. State v. Timothy T., 1998-NMCA-053, 125 N.M. 96, 957 P.2d 525, cert. denied, 125 N.M. 147, 958 P.2d 105. When time limit not waived. - A child does not waive the time limit of this rule either by requesting a delay in transportation to the Youth Diagnostic Center or by requesting a continuance of a dispositional hearing which itself would have been untimely. State v. Doe, 1980-NMCA-046, 94 N.M. 282, 609 P.2d 729. Time limit in Paragraph B is not suspended by special master's proceedings. - The running of the time limit in Paragraph B, within which a dispositional hearing must be held, is not suspended until exceptions are filed under Paragraph E of Rule 10-111, and the children's court judge acts on the report of the special master. In re Paul T., 1994-NMCA-123, 118 N.M. 538, 882 P.2d 1051. 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).