N.M. R. Child. Ct. 10-314

As amended through November 1, 2024

Rule 10-314 - Explanation of respondent's rights at first appearance; ICWA advisement; appointed counsel

A.Explanation of rights at first appearance. At the first appearance of the respondent, the court shall inform the respondent of the following:

(1) the allegations of the abuse or neglect petition or the termination of parental rights motion;

(2) the right to an adjudicatory hearing on the allegations in the petition or the right to a trial on the allegations in the motion;

(3) the right to an attorney and that if the respondent cannot afford an attorney, one will be appointed to represent the respondent free of charge;

(4) the possible consequences if the allegations of the petition or the motion are found to be true; and

(5) the right to have the proceedings interpreted into a language the respondent understands.

B.ICWA advisement. If the child is an Indian child or there is reason to know that the child is an Indian child as defined by the Indian Child Welfare Act, the court shall further inform the respondent of the following:

(1) the parent, Indian custodian, or tribe may request that the case be transferred to tribal court;

(2) either parent may object to the request to transfer;

(3) the department shall place the Indian child in accordance with the placement preferences set forth in ICWA, unless good cause is shown to depart from those preferences;

(4) the department shall make active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family; and

(5) if a motion for termination of parental rights is filed, the department shall prove the allegations beyond a reasonable doubt.

C.Appointed counsel. In any proceeding or case that may result in the termination of parental rights, an attorney may not be appointed to represent more than one respondent.

[Approved, effective November 1, 1978, Rule 55 NMSA 1978; Rule 10-304 SCRA 1986; as amended, effective August 1, 1999; Rule 10-304 NMRA, recompiled and amended as Rule 10-314 NMRA by Supreme Court Order No. 08-8300-042, effective January 15, 2009; as amended by Supreme Court Order No. 19-8300-020, effective for all cases filed, or pending in which respondent has not made a first appearance, on or after December 31, 2019.]

N.M. R. Child. Ct. 10-314

As amended by Supreme Court Order No. 08-8300-042, effective 1/15/2009; as amended by Supreme Court Order No. 19-8300-020, effective for all cases filed, or pending in which respondent has not made a first appearance, on or after12/31/2019.

Committee commentary. - Historically, noncriminal proceedings against parents based on their treatment of their children were equitable in nature and were based on the doctrine of parens patriae. See In re Santillanes, 1943-NMSC-011, 47 N.M. 140, 138 P.2d 503. Modern abuse and neglect and termination of parental rights proceedings are typically statutory proceedings. Absent statutory authorization for a right to a jury trial, it has been held that the parents have no such right. Matter of T.J., 1997-NMCA-021, 123 N.M. 99, 934 P.2d 293 (mother not entitled to jury trial under New Mexico constitution or by statute).

A new Paragraph B was added to encourage full compliance with the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to 1963, and its implementing regulations, 25 C.F.R. Part 23 (effective December 12, 2016). Paragraph B provides the courts with a uniform advisement to alert the parties to the unique protections provided to Indian children, their families, and their tribe(s) in cases subject to the Act, and to highlight some of the Act's procedural requirements. Because of the extensive protections included in the Act, it would be unwieldy to enumerate every provision in this advisement. Practitioners and judges are urged to familiarize themselves with all of the Act's requirements.

ANNOTATIONS The 2019 amendment, approved by Supreme Court Order No. 19-8300-020, effective for all cases filed, or pending in which respondent has not made a first appearance, on or after December 31, 2019, provided a uniform advisement to alert the parties to certain protections for Indian children, their families, and their tribes in cases subject to the Indian Child Welfare Act and its implementing regulations, provided respondents the right to have the proceedings interpreted into a language the respondent understands, made certain stylistic changes, and revised the committee commentary; in the rule heading, added "ICWA advisement"; in Paragraph A, after "first appearance of the respondent", deleted "on an abuse or neglect petition or a termination of parental rights motion, if the respondent is not represented by an attorney", after the next occurrence of "the", added "court shall inform the", after the next occurrence of "respondent", deleted "shall be informed by the court", and after "of" added "the following"; in Subparagraph A(1), after "allegations of the", added "abuse or neglect", and after "petition or the", added "termination of parental rights", and added Subparagraph A(5); added a new Paragraph B, and redesignated former Paragraph B as Paragraph C. The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, added "appointed counsel" to the title; lettered the former prefatory sentence as Paragraph A and added the title; in the prefatory sentence of Paragraph A, changed "abuse or neglect proceeding" to "abuse or neglect petition or a termination of parental rights motion"; relettered former Paragraphs A through D as new Subparagraphs (1) through (4) of Paragraph A, in Subparagraph (1) of Paragraph A, added "or the motion"; in Subparagraph (2) of Paragraph A, added "or the right to a trial on the allegations in the motion"; and added new Paragraph B. The 1999 amendment, effective August 1, 1999, inserted "respondent's" in the section heading, deleted "before the court" following "appearance of the respondent" and added "if the respondent is not represented by an attorney" in the introductory language; substituted "an adjudicatory hearing" for "a trial" in Paragraph B; and made gender neutral changes in Paragraph C. Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-304 NMRA was recompiled as Rule 10-314 NMRA, effective January 15, 2009. Right to attorney denied only where waived intelligently and knowingly. - The waiver of a right created by the constitution, a statute or a court-promulgated rule, such as the right to an attorney, must be done intelligently and knowingly if the right is to be denied the one claiming it. State ex rel. Dep't of Human Servs. v. Perlman, 1981-NMCA-076, 96 N.M. 779, 635 P.2d 588. Law reviews. - For article, "The New Mexico Children's Code: Some Remaining Problems," see 10 N.M.L. Rev. 341 (1980). For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983).