N.M. R. Child. Ct. 10-312

As amended through November 1, 2024

Rule 10-312 - Filing of petition; amendment of petition; appointment of guardian ad litem or attorney

A.Form and contents. Petitions or amended petitions alleging abuse or neglect shall be in a form approved by the Supreme Court.

B.Time limits. If a child is taken into custody, a petition alleging abuse or neglect shall be filed by the department within two (2) days from the date that the child is taken into emergency custody by the department. If a petition is not filed within the time set forth in this paragraph, the child shall be released to the child's parents, guardian or custodian.

C.Service. A petition alleging abuse or neglect shall be served as provided by Rule 10-103 NMRA of these rules. A copy of the petition shall also be served on a parent who has not been made a party with a notice that the parent may intervene and request custody of the child.

D.Appointment of guardian ad litem or attorney. Upon the filing of a petition in an abuse or neglect proceeding, a guardian ad litem shall be appointed by the court to represent the best interest of any child under the age of fourteen (14). The court shall appoint an attorney to represent any child who is fourteen (14) years of age or older.

E.Notice to Indian tribes. If the alleged abused or neglected child is enrolled or eligible for enrollment in an Indian tribe, the Children, Youth and Families Department shall give notice of the filing of the petition to the child's Indian tribe. The form and manner of the notice shall comply with the provisions of the federal Indian Child Welfare Act of 1978.

F.Amended petitions. The department may file an amended petition alleging abuse or neglect:

(1) once as a matter of course at any time within twenty (20) days after it is served; or

(2) upon leave of court.

N.M. R. Child. Ct. 10-312

Approved April 1, 1976, Children's Court Rule 42 NMSA 1953; recompiled and amended as Children's Court Rule 57 NMSA 1978; as amended effective 2/1/1982; Rule 10-305 SCRA 1986; as amended effective 5/1/1986; Rule 10-305 NMRA, as amended, effective 8/1/1999; as amended by Supreme Court Order 06-8300-04, effective 3/15/2006; Rule 10-305 NMRA, recompiled as Rule 10-312 NMRA by Supreme Court Order No. 08-8300-42, effective 1/15/2009; as amended by Supreme Court Order No. 10-8300-041, effective 1/31/2011.

Committee commentary. - Rule 10-312 NMRA sets the general procedure and time limits for filing of petitions alleging abuse or neglect.

The approved form of summons in abuse or neglect actions provides notice that the respondent's parental rights may be terminated. See Rule 10-122 NMRA and Section 32A-4-27 NMSA 1978 for rights of non-custodial parents to intervene. See also Section 32A-4-29 NMSA 1978. The committee views the right to intervene as procedural.

ANNOTATIONS The 2010 amendment, approved by Supreme Court Order No. 10-8300-041, effective January 31, 2011, in Paragraph C, in the first sentence, after "Rule", deleted "10-104" and added "10-103". The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, in the committee commentary, changed "Rule 10-305 NMRA" to "Rule 10-312 NMRA", changed "petition" to "summons" and changed "Rule 10-108 NMRA" to "Rule 10-122 NMRA". The 2006 amendment, approved by Supreme Court Order No. 06-8300-004 effective March 15, 2006, inserted "or attorney" in the catchline and revised Paragraph D to provide that the guardian ad litem represents the best interest of a child under 14 years of age and an attorney is appointed to represent a child who is 14 years of age or older. The 1999 amendment, effective August 1, 1999, inserted "amendment of petition" in the section heading; deleted former Paragraph A relating to procedure, and redesignated subsequent paragraphs accordingly; in Paragraph A, inserted "or amended petitions" and deleted a list of information which the petition should set forth; in Paragraph B, deleted former Subparagraph (1) which stated that petitions shall be filed within ninety days from the date that the complaint is referred to the department if the child is not in custody of the department, deleted the former Paragraph (2) designation, added the language ending "filed by the department", and substituted "emergency custody by the department" for "custody" in the first sentence; added Paragraphs C, E, and F; and rewrote Paragraph D, which formerly read "The court shall appoint a guardian ad litem to represent the child alleged to be abused or neglected no later than the filing of the petition alleging abuse or neglect". Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-305 NMRA was recompiled as Rule 10-312 NMRA, effective January 15, 2009.

Cross references. - For Children's Code provisions relating to petitions, see Sections 32A-1-10, 32A-1-11 and 32A-2-8 NMSA 1978. For the filing of a petition in an abuse or neglect proceeding, see Section 32A-4-4 NMSA 1978. For appointment of a guardian ad litem, see Section 32A-1-7 NMSA 1978. For appointment of an attorney to represent a child in an abuse or neglect proceeding, see Section 32A-4-10 NMSA 1978. For the Indian Child Welfare Act, see 25 U.S.C. §§ 1901- 1963. Law reviews. - For article, "The New Mexico Children's Code: Some Remaining Problems," see 10 N.M.L. Rev. 341 (1980). For note, "Children's Code - Neglect - State ex rel. Health & Social Services Department v. Natural Father," see 12 N.M.L. Rev. 505 (1982).