N.M. R. Child. Ct. 10-352

As amended through November 1, 2024

Rule 10-352 - Judgments and appeals

A.Entry of judgment. The judge shall enter a written judgment on petitions alleging abuse or neglect and a written judgment on motions to terminate parental rights. The clerk shall give notice of entry of the judgment and disposition and any judgment on a motion to terminate parental rights.

B.Appeals. Appeals from judgments and dispositions on petitions alleging abuse or neglect and appeals from judgments on motions to terminate parental rights shall be governed by the Rules of Appellate Procedure and the following procedures:

(1) the notice of appeal shall be signed by both the appellant and the appellant's counsel, unless the appellant is a minor child or state agency or unless counsel complies with the requirements of Subparagraph (2) of this paragraph.

(2) A notice of appeal shall not be filed without the appellant's signature unless counsel certifies that the appeal is not frivolous or certifies the following:

(a) the appellant contested the proceedings and expressed an intention to appeal the judgment or disposition; and

(b) the appellant has failed to maintain contact with counsel, and despite diligent efforts counsel has been unable to locate the appellant to sign the notice of appeal. Counsel shall specify the last date on which the appellant contacted counsel and the efforts counsel has made to locate the appellant.

[10-310 NMRA, as amended, effective May 1, 1986; January 1, 1987; recompiled, effective March 1, 2003; Rule 10-350 NMRA, recompiled and amended as Rule 10-352 NMRA by Supreme Court Order No. 08-8300-042, effective January 15, 2009; as amended by Supreme Court Order No. 13-8300-024, effective in all cases pending or filed on or after December 31, 2013.]

N.M. R. Child. Ct. 10-352

As amended by Supreme Court Order No. 13-8300-024, effective in all cases pending or filed on or after12/31/2013.

Committee commentary. - This rule recognizes that there are two types of judgments which are subject to appeal, the adjudication and termination of parental rights. See State ex rel. CYFD v. Frank G., 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, aff'd, 2006-NMSC-019.

The amendments to Paragraph B are intended to clarify the duties of counsel to file a notice of appeal. Failure to file a notice of appeal of the termination of parental rights or an adjudication of abuse or neglect may constitute ineffective assistance of counsel. See State ex rel. Children, Youth & Families Dep't v. Ruth Anne E., 1999-NMCA-035, && 9-10, 126 N.M. 670, 974 P.2d 164 (termination of parental rights); State ex rel. Children, Youth & Families Dep't v. Amanda M., 2006-NMCA-133, & 22, 140 N.M. 578, 144 P.3d 137 (adjudication of abuse or neglect). If counsel has lost contact with the parent during the appeal period, counsel must file a notice of appeal if the parent actively opposed the termination of parental rights or the adjudication of abuse or neglect and has not expressly waived the right to appeal.

ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-024, effective December 31, 2013, required that a notice of appeal be signed by the appellant as well as appellant's counsel; specified the conditions that excuse the appellant from signing the notice of appeal; and in Paragraph B, after "Rules of Appellate Procedure", added "and the following procedures", and added Subparagraphs (1) and (2). The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, in Paragraph A, changed "The judge shall sign a written judgment and disposition in abuse and neglect proceeding. The judgment and disposition shall be filed" to "The judge shall enter a written judgment on petitions alleging abuse or neglect and a written judgment on motions to terminate parental rights" and added "and any judgment on a motion to terminate parental rights"; and in Paragraph B, changed "judgments" to "judgments and dispositions" and added "and appeals from judgments on motions to terminate parental rights". Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-350 NMRA was recompiled as Rule 10-352 NMRA, effective January 15, 2009.

Cross references. - For stay pending appeal, see Rule 12-206 NMRA.