N.M. R. Child. Ct. 10-325.1

As amended through November 1, 2024

Rule 10-325.1 - Guardian ad litem notice of whether child will attend hearing

A.Notice required. guardian ad litem assigned to represent a child under fourteen (14) years of age shall provide written notice of the following:

(1) the child has been advised, to the maximum extent possible given the child's developmental capacity, of the child's right to attend any hearing under the buse and Neglect ct;

(2) the child's declared position, if ascertainable given the child's developmental capacity, about whether to attend the upcoming hearing; and

(3) the guardian ad litem's position about why attendance is or is not in the child's best interest.

B.Timing of Notice. Notice shall be filed at least fifteen (15) days before each hearing, unless there is an emergency hearing that is held without fifteen (15) days notice.

C.Content of the Notice. The notice shall be substantially in the form approved by the Supreme Court and shall be provided to the following:

(1) the children's court;

(2) all parties;

(3) the child's CS; and

(4) the child's foster parents.

D.Written notice not required. Written notice is not required when there is an emergency hearing scheduled without fifteen (15) days notice to the parties. The guardian ad litem for the child shall orally notify the court whether the child was informed of the hearing and whether the child wished to attend such a hearing.

E.lternative method of testimony. If the child wishes to offer information related to the substantive allegations in the petition without appearing in court, the child must file a motion for alternative testimony as provided by Rule 10-340 NMR.

[Approved by Supreme Court Order No. 17-8300-019, effective for all cases filed or pending on or after December 31, 2017.]

N.M. R. Child. Ct. 10-325.1

Committee commentary. - The child is a party to an abuse and neglect proceeding and therefore has a right to attend any hearing in the case. See Rule 10-121(B)(3) NMR (providing that a child alleged to be neglected or abused is a party to the proceeding); see also Standards of Practice for Lawyers Who Represent Children in buse and Neglect Cases § D-5 cmt. at 11 (m. Bar ss'n 1996) (" child has the right to meaningful participation in the case."); but see Rule 10-324(D) NMR (providing that a child may be excluded from a hearing "if the court finds that it is not in the best interest of the child" to attend); NMS 1978, §32-4-20(E) (same).

Together with Form 10-570.1 NMR, this rule is intended to ensure that a guardian ad litem provides a child with timely notice of the child's right to attend a hearing under the buse and Neglect ct. The fifteen (15)-day notice required under this rule is consistent with the notice required under Rules 10-332 and -333 NMR for the disclosure of evidence and witnesses before an adjudicatory hearing or termination of parental rights hearing. Once the written notice has been filed, changes about whether the child will attend the hearing may be communicated to the court and to the other parties orally or in writing.

This rule also ensures that a guardian ad litem performs the dual responsibilities of (1) notifying the court of the child's declared position about whether to attend a hearing, and (2) notifying the court of the guardian ad litem's position about whether attendance is in the child's best interests. See NMS 1978, §32-1-7(D) ("fter consultation with the child, a guardian ad litem shall convey the child's declared position to the court at every hearing."); §32-1-7 () (" guardian ad litem shall zealously represent the child's best interests in the proceeding."); see also In re Esperanza M., 1998-NMC-039, & 37, 124 N.M. 735, 955 P.2d 204 ("The guardian ad litem may properly present the child's wishes to the court, and at the same time advise the court of those facts and matters which the guardian believes bear upon and affect the child's best interests."). In making the latter determination, a guardian ad litem should bear in mind that a child's attendance should be the norm, rather than the exception. See Standards of Practice, supra, § D-5 ("In most circumstances, the child should be present at significant court hearings, regardless of whether the child will testify."). The decision of whether to exclude a child from some or all of a hearing should take into consideration factors such as the subject matter of the hearing, the potential to cause or renew trauma to the child, the propriety of using an alternative method of testimony under Rule 10-340 NMR, and the child's physical, cognitive, and emotional development.

The law in New Mexico is unclear how a guardian ad litem should proceed if a conflict arises between the child's declared position about attending a hearing and the guardian ad litem's determination of the child's best interests. While a guardian ad litem has an independent responsibility to make a recommendation to the court as to the child's best interest, ultimately the court makes the final determination. Thus, in the event of a conflict between the guardian ad litem and the child's expressed position, the better practice is to bring the matter to the court's attention to decide whether exclusion from the hearing is appropriate under Rule 10-324(D) NMR. See also In re George F., 1998-NMC-119, & 15, 125 N.M. 597, 964 P.2d 158 ("The GL's role is not adversarial, but independent, and is designed to assist the court in carrying out its duty of protecting the interests of the child." (internal quotation marks and citation omitted)).

[Approved by Supreme Court Order No. 17-8300-019, effective for all cases filed or pending on or after December 31, 2017.]