N.M. R. Evid. 11-509

As amended through May 8, 2024

Rule 11-509 - Communications to juvenile probation officers and social services workers

A.Definitions. For purposes of this rule,

(1) "probation officer" means a person employed by the Children, Youth and Families Department or successor entity who conducts preliminary inquiries pursuant to the Children's Code [Chapter 32A NMSA 1978] and Children's Court Rules and Forms;

(2) "social services worker" means a person employed by the Children, Youth and Families Department or successor entity who conducts preliminary inquiries pursuant to the Children's Code and Children's Court Rules and Forms; and

(3) a communication is "confidential" if made privately and not intended for further disclosure except to other persons in furtherance of the purpose of the communication.

B.Scope of the privilege. A child alleged to be delinquent or in need of supervision and a parent, guardian, or custodian who allegedly neglected a child has a privilege to refuse to disclose, or to prevent any other person from disclosing, confidential communications, either oral or written, between the child, parent, guardian, or custodian and a probation officer or a social services worker which are made during the course of a preliminary inquiry.

C.Who may claim the privilege. The privilege provided in Paragraph B of this rule may be claimed by the child in a criminal proceeding or in a children's court proceeding; or by the parent, guardian, or custodian who allegedly abused or neglected a child. The claim of privilege may be asserted by the attorney, the probation officer, or the social services worker on behalf of the child, parent, guardian, or custodian.

N.M. R. Evid. 11-509

As amended, effective 12/1/1993;2/1/2000; as amended by Supreme Court Order No. 13-8300-025, effective for all cases pending or filed on or after12/31/2013.

Committee commentary. - This rule was added in conjunction with the adoption of N.M.R. Child. Ct. This rule is not in the federal rules. The purpose of the rule is to facilitate informal settlement of juvenile matters at the preliminary inquiry stage.

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ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-025, effective December 31, 2013, made stylistic changes; in Paragraph A, at the beginning of the introductory sentence, deleted "As used in" and added "For purposes of"; and in Paragraph B, deleted the former title "General rule of privilege" and added the current title, and after "refuse to disclose", changed "and" to "or". The 1999 amendment, effective February 1, 2000, substituted "Children, Youth and Families Department" for "Social Services Division of Human Services Department" in Subparagraph A(2) and rewrote the first sentence of Paragraph C, which read: "The privilege may be claimed by the child alleged to be delinquent or in need of supervision or by the parent, guardian or custodian who allegedly neglected a child." The 1993 amendment, effective December 1, 1993, substituted "the children, youth and families department or successor entity" for "the probation services of a judicial district" in Subparagraph A(1), inserted "or successor entity" in Subparagraph A(2), substituted "Children's Court Rules and Forms" for "Children's Court Rules of Procedure" in Subparagraphs A(1) and A(2), substituted "the child, parent, guardian or custodian" for "himself" in Paragraph B, substituted "the child" for "said child" in the second sentence of Paragraph C, and made gender neutral changes in Paragraphs B and C.

For Rules of Procedure for the Children's Court, see Rule 10-101 NMRA et seq. For the Children's Code, see Section 32A-1-1 NMSA 1978 et seq. Appeal. - Where defendant argued this rule as the basis for a social worker-client privilege at his trial for criminal sexual contact with a minor, but he did not carry this argument to his brief on appeal, the issue was considered abandoned. State v. Neswood, 2002-NMCA-081, 132 N.M. 505, 51 P.3d 1159, cert. denied, 132 N.M. 551, 52 P.3d 411. 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). Am. Jur. 2d, A.L.R. and C.J.S. references. - 81 Am. Jur. 2d Witnesses §§ 453, 524, 526, 528, 529, 535, 536, 541, 542. Privilege of communication made to public officers, 9 A.L.R. 1099, 59 A.L.R. 1555. Communications to social worker as privileged, 50 A.L.R.3d 563. Confidentiality of records as to recipients of public welfare, 54 A.L.R.3d 768. 97 C.J.S. Witnesses §§ 264, 303.