N.M. R. Child. Ct. 10-342

As amended through August 23, 2024

Rule 10-342 - Admissions, including no contest pleas, and consent decrees

A.Admissions. The respondent may make an admission by:

(1) admitting sufficient facts to permit a finding that the allegations of the petition are true; or

(2) entering a plea of no contest by declaring the respondent's intention not to contest the allegations in the petition. A no contest plea entered under this rule shall not be construed as or used as an admission for any other civil or criminal purpose.

B.Consent decrees. A consent decree in an abuse or neglect proceeding is an order of the court, after an admission, including the entry of a no contest plea, has been made, that suspends the proceedings on the petition and in which, under terms and conditions negotiated and agreed to by the respondent and the children's court attorney:

(1) the legal custody of the child is transferred to the department for a period not to exceed six (6) months from the date of the consent decree; and

(2) the child is allowed to remain with the respondent or other person and the respondent will be under supervision of the department for a period not to exceed six (6) months.

C.Inquiry of respondent. The court shall not accept an admission, including the entry of a no contest plea, or approve a consent decree without first, by addressing the respondent personally in open court, determining that:

(1) the respondent understands the allegations of the petition;

(2) the respondent understands the dispositions that the court may make if the allegations of the petition are found to be true;

(3) the respondent understands that by making an admission, including entering into a no contest plea, the court will enter a finding that the child is an abused or neglected child as to that respondent and as defined under the Children's Code, and that such a finding can be used against the respondent to establish the fact of abuse and/or neglect in the event the case proceeds to a hearing on a motion to terminate parental rights;

(4) the respondent understands the right to deny the allegations in the petition and to have a trial on the allegations;

(5) the respondent understands that by admitting, including by entering a no contest plea, or agreeing to the entry of the consent decree the respondent is waiving the right to a trial;

(6) the admission, including the entry of a no contest plea, or provisions of the consent decree are voluntary and not the result of force or threats or of promises other than any consent decree agreement reached.

D.Basis for admission, no contest plea, or consent decree. The court shall not enter judgment upon an admission, including the entry of a no contest plea, or approve a consent decree without making such inquiry as shall satisfy the court that there is a factual basis for the admission, including the entry of a no contest plea, or consent decree. If the admission is a no contest plea, the court shall not question the respondent, but, by some other means, shall obtain support for a finding that one or more of the statutory grounds alleged in the petition are true.

E.Disposition. After acceptance of an admission, including a no contest plea, unless made for the purpose of a consent decree, the court shall proceed to make any disposition permitted by law as it deems appropriate under the circumstances.

F.Acceptance of consent decree. If the court accepts a consent decree, the court shall approve the disposition provided for in the consent decree or another disposition more favorable to the respondent than that provided for in the consent decree. If the court rejects the consent decree, the decree shall be null and void.

G.Inadmissibility of discussions. Evidence of an admission, including a no contest plea, or agreement to a consent decree, later withdrawn, or of conduct or statements made during negotiations shall be considered to be "compromise negotiations" under Rule 11-408 NMRA and is not admissible to prove abuse or neglect. This rule does not require the exclusion of any evidence otherwise discoverable merely because it was presented in the course of settlement negotiations.

H.Time limits. If the child is in the custody of the department, the court shall accept or reject the admission, including a no contest plea, or consent decree within five (5) days after the admission, including a no contest plea, is made or within five (5) days after a consent decree has been submitted to the court for its approval.

I.Extension. The department may move the court for an order extending the original consent decree for a period not to exceed six (6) months from the expiration of the original decree. The motion for extension shall be filed prior to the expiration of the original decree. If the respondent objects to the extension, the court shall hold a hearing to determine if the extension is in the best interests of the child.

J.Revocation. If, prior to the expiration of the consent decree, the respondent allegedly fails to fulfill the terms of the decree, the department may file a petition to revoke the consent decree. If the respondent is found to have violated the terms of the consent decree, the court may:

(1) extend the period of the consent decree; or

(2) make any other disposition which would have been appropriate in the original proceedings.

N.M. R. Child. Ct. 10-342

As amended, effective 5/1/1986; Rule 10-307 NMRA, recompiled and amended as Rule 10-342 NMRA by Supreme Court Order No. 08-8300-042, effective 1/15/2009; as amended by Supreme Court Order No. 12-8300-024, effective for all cases filed or pending on or after1/7/2013.

Committee commentary. - The rule institutes consent decree and admissions procedures for abuse and neglect cases. The consent decree in an abuse or neglect case differs from that in a delinquency proceeding in that the parties may agree that the department have legal custody of the child for a period of up to six months or the child may be placed under supervision in his own home or the home of another for the six-month period.

See generally Rules 10-227 and 10-228 NMRA on consent decrees in delinquency cases.

Paragraph D makes a distinction between admissions and no contest pleas. With an admission, the respondent may be asked questions to establish the factual basis for the charges. With a no contest plea, the children's court attorney is required to set forth the factual basis.

[As recompiled and amended by Supreme Court Order No. 08-8300-042, effective January 15, 2009; as amended by Supreme Court Order, No. 12-8300-024, effective for all cases filed or pending on or after January 7, 2013.]

ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-024, effective January 7, 2013, provided for an admission by entry of a no contest plea; in the title of the rule, after "Admission", added "including no contest pleas", in Subparagraph (2) of Paragraph A, at the beginning of the first sentence, added "entering a plea of no contest by" and added the second sentence; in Paragraph B, in the first sentence, after "after an admission", added "including the entry of a no contest plea"; in Paragraph C, in the first sentence, after "accept an admission", added "including the entry of a no contest plea", added Subparagraph (3), relettered former Subparagraph (4) as Subparagraph (5), in Subparagraph (5), after "understands that by admitting", added "including by entering a no contest plea", relettered former Subparagraph (5) as Subparagraph (6), and in Subparagraph (6), after "the admission", added "including the entry of a no contest plea"; in Paragraph D, in the title of the paragraph, after "Basis for admission", added "no contest plea", in the first sentence, after "judgment upon an admission", added "including the entry of a no contest plea" and after "factual basis for the admission", added "including the entry of a no contest plea", and added the second sentence; in Paragraph E, after "acceptance of an admission", added "including a no contest plea"; in Paragraph G, in the first sentence, after "Evidence of an admission", added "including a no contest plea"; and in Paragraph H, after "reject the admission", added "including a no contest plea" and after "five (5) days after the admission", added "including a no contest plea". The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, in Paragraph G, changed "statements made in connection therewith is not admissible in any proceeding against the respondent" to "conduct or statements made during negotiations shall be considered to be 'compromise negotiations' under Rule 11-408 NMRA and is not admissible to prove abuse or neglect" and added last sentence; deleted former Paragraph I which provided that the Rules of Evidence apply to inquiries made to determine whether there is a factual basis for admission or a consent decree; relettered former Paragraphs J and K as Paragraphs I and J; in Paragraph I, deleted the former rule which provided that consent decrees in abuse and neglect proceedings may be extended by the department and may be terminated in accordance with Rule 10-225 NMRA and added the current rule; and in Paragraph J, changed "children's court attorney" to "department". Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-307 NMRA was recompiled as Rule 10-342 NMRA, effective January 15, 2009. Parties' stipulation to custody in department creates consent decree. - A stipulation entered into between the parties, following a hearing in which a physician testified that the child's condition was the result of neglect and in which the natural parents did not contest the neglect allegations and agreed to temporary custody in the department, was in effect a consent decree under this rule, and not a temporary custody order under Rule 10-303 NMRA. State ex rel. Dep't of Human Servs. v. Doe, 1985-NMCA-078, 103 N.M. 260, 705 P.2d 165. Inquiry required before acceptance of admission. - Failure of the children's court to personally address a minor mother in open court concerning her understanding and consent to a stipulated judgment and disposition voided her purported admission that her children were neglected and, in a subsequent proceeding to terminate her parental rights, the court's use of such admission as the basis of its finding that the children were neglected violated the mother's due process rights. State ex rel. Children, Youth & Families Dep't v. Lilli L., 1996-NMCA-014, 121 N.M. 376, 911 P.2d 884. Inquiry into waiver of right to contest termination. - Without any inquiry into whether it was proper to infer from her absence that a mentally-ill mother voluntarily and unequivocally intended to waive her right to contest a termination proceeding, she faced an unacceptably high risk of erroneous deprivation of her fundamental rights. State ex rel. Children, Youth & Families Dep't v. Stella P., 1999-NMCA-100, 127 N.M. 699, 986 P.2d 495. Am. Jur. 2d, A.L.R. and C.J.S. references. - 43 C.J.S. Infants §§ 23, 24, 28 to 30.