15.1 PURPOSE
The adjudicatory hearing is the trial in the abuse or neglect case. It entails a full evidentiary hearing complete with all of the protections of due process. The findings made at this hearing determine whether the state continues to intervene in the life of the family.

15.2 TIMELINE

15.2.1 60 DAY DEADLINE
The adjudicatory hearing must be commenced within 60 days of the latest of the following:

1. the date that the petition is served on the respondent;
2. the date of the termination of any diversion agreement;
3. if a mistrial is declared or a new trial is ordered by the trial court, the date that such order is filed; or
4. in the event of an appeal, the date that the mandate or order is filed in the district court disposing of the appeal.

The statute on adjudicatory hearings, §32A-4-19, lists the first, third and fourth dates identified above but not the second. The reference to diversion agreements was added by amendment to the Children’s Court Rules in 1999. See Rule 10-320(A).

While the term “diversion agreement” is not defined in the statute or rules, it is reasonably clear that a consent decree would be included. Rule 10-307(B) sets out the criteria for use of a consent decree. Rule 10-307(K) allows for the revocation of consent decrees.

15.2.2 EXTENSIONS OF TIME
Extensions may be granted under Rule 10-320(C):

• By the children’s court judge for good cause shown, provided the aggregate of all extensions granted by the judge does not exceed 30 days; or
• By the Supreme Court, a justice of the Supreme Court or a judge designated by the Supreme Court, for good cause shown. The 30 day aggregate limit does not apply.

For an extension by the children's court judge:

• The petition for an extension must be verified and state concisely the facts that the petitioner deems to constitute good cause.
• The petition must be filed within the 60 day period described in §15.2.1 except that a petition can be filed within 10 days of the expiration of that period if based on exceptional circumstances beyond the control of the state or children’s court.

For an extension by the Supreme Court, a justice or a designated judge:

• The two rules just listed apply.
• Within five (5) days of the filing of the petition for an extension, opposing counsel may file an objection to the extension, setting forth the reasons for the objection.
• No hearing is held except upon order of the Supreme Court.
• If the Supreme Court finds that there is good cause for an extension, it will fix the time limit within which the adjudicatory hearing must commence.

15.2.3 REQUIREMENT JURISDICTIONAL
The 60-day deadline, or the deadline as extended, is jurisdictional. The neglect and abuse petition must be dismissed if the hearing is not begun within the 60 day period or within the period of any extension granted. §32A-4-19(D); Rule 10-320.

The statute and rule require that the hearing be “commenced” or “begun” within the allotted time. This approach is very similar to the approach taken in Rule 5-604(B) of the Rules of Criminal Procedure, which requires dismissal with prejudice if trial is not commenced within a specified period. The courts have held that Rule 5-604(B) requires that the defendant’s trial commence within the prescribed period; it does not require that the trial be completed within that period. State v. Rackley, 2000-NMCA-27, ¶4, 128 N.M. 761, citing State v. Higgins, 107 N.M. 617 (Ct. App. 1988). The court in Rackley observed that there is no requirement in the rule that all subsequent stages of the trial be contiguous. However, it also stated that it would scrutinize closely any prolonged, unjustified delay or conduct suggestive of an attempt to circumvent the rule. Id. ¶¶6, 7. What constitutes the commencement of an adjudicatory hearing, which is a bench trial, has not been determined by case law.

Because of the requirements of and shortened time frames under the Adoption and Safe Families Act, it is recommended that any practice of continuing adjudicatory hearings not become commonplace, and that the matter be heard and concluded as expeditiously as possible. See Handbook §38.4 on ASFA. The adjudicatory hearing needs to be concluded early enough to give parents even a minimal amount of time to try to follow the treatment plan.

15.3 INITIATION AND NOTICE
As a matter of practice, the children’s court attorney is responsible for notifying the parties of the hearing and assuring that it is timely held. Similarly, any party who has requested an extension of time is responsible for ensuring that any new date for the hearing falls within the time allowed and that all parties are notified of the change.

15.4 PARTICIPANTS
The participants in the adjudicatory hearing include the parties, their attorneys and the witnesses. The court may exclude a child under 14 from the hearing if it finds that this is in the child’s best interest. The court may also exclude a child who is 14 or older, but only after making a finding that there is a compelling reason to exclude the child and stating the factual basis on the record. §32A-4-20(E), added in 2005.

A transport order may be needed if the respondent is incarcerated; ensuring that parents who are incarcerated can participate meaningfully in the hearing is important. See Handbook §22.5.8. See State ex rel. CYFD v. Maria C., 2004-NMCA-083, 136 N.M. 053 (discussing the importance of respondent’s presence at permanency hearings). If the person is in federal prison, habeas corpus may be a means of bringing the parent into state court for the hearing. If for any reason, through no fault of their own, a parent is unable to attend court, alternative methods of participation in the proceedings should be considered. See, State ex rel. CYFD v. Ruth Anne E., 1999-NMCA-035, 126 N.M. 670.

Although there is no right for foster parents who are not parties to be heard at the adjudicatory hearing, as there is at the judicial review or permanency hearing, foster parents and CASA volunteers may be present as observers, subject to court approval and the confidentiality provisions of §32A-4-20(C). Foster parents could be called as witnesses by one of the parties as well.

Abuse and neglect hearings are closed to the general public. Persons the court finds have “a proper interest in the case or in the work of the court” may be allowed to attend on the condition that they refrain from divulging information that would identify the child or family. Similar rules apply to the news media. Persons granted admission who intentionally divulge protected information are guilty of a petty misdemeanor. §32A-4-20; see also Handbook §13.4.

A common predicament occurs when the respondent is not present, but the attorney for the respondent appears. Technically this is not a situation for a default judgment. State ex rel. CYFD v. Stella P., 1999-NMCA-100, ¶23, 127 N.M. 699. An inquiry on the record should go to the questions of actual notice, whether attempts to provide notice were reasonable under the circumstances of the case, communication with counsel, and the like. State ex rel. CYFD v. Maria C., 2004-NMCA-083, 136 N.M. 053. One approach may then be to postpone the hearing in hopes that the respondent will attend, but this is only an option if time permits. Another approach, suggested obliquely in Stella P., would be to proceed with the trial but to require that the state prove abuse or neglect by clear and convincing evidence, as if the respondent were present and contesting the allegations. Id. ¶¶30, 36.

If a respondent who has not yet testified appears, the court should receive the testimony of that respondent concerning the identity and whereabouts of any other person who may have a custodial or protected interest in the child, and the nature of that relationship.

If not previously resolved, the court should determine whether the child is an Indian child.

15.5 CONDUCT OF HEARING

15.5.1 NO RIGHT TO JURY TRIAL
The parties do not have a right to a jury trial in an abuse or neglect case. State ex rel. CYFD in the Matter of T.J., 1997-NMCA-021, 123 N.M. 99; see Committee Commentary to Rule 10-304.

15.5.2 MAKING A RECORD
The court’s decision at the adjudicatory hearing is an appealable one. State ex rel. CYFD v. Frank G., 2005-NMCA-026, 137 N.M. 137, affirmed on other grounds in Pamela A.G. below. Also, basic due process considerations apply to the hearing. State ex rel. CYFD v. Kathleen D.C., 2007-NMSC-018, 141 N.M. 535; In the Matter of Pamela A.G., 2006-NMSC-019, 139 N.M. 459.

It is very important that the practitioners before the court make a good record, offer the evidence that should be offered, and state objections clearly on the record. Because of the press of business and the general preference for informality in other aspects of an abuse or neglect case, both the court and the attorneys may be inclined to be less formal than in other types of trials. However, since the record made will be critical to any appeal taken, counsel and the court should fully develop the record, as fundamental liberty interests are implicated. See State ex rel. CYFD v. Amanda M., 2006-NMCA-133, ¶¶20-22, 140 N.M. 578, and §32A-4-17 (initial summons in abuse/neglect proceeding must indicate that the proceedings could result in a termination of parental rights).

In a number of Court of Appeals’ decisions, the court has declined to address an issue because it was not preserved below. In State ex rel. CYFD v. Patricia N., 2000-NMCA-035, 128 N.M. 813, appellants criticized the children’s court for not ordering a predisposition report to obtain certain information about the child. The Court of Appeals declined to address the issue, finding no indication that the issue was preserved below, there being no record showing whether a disposition report was ordered or not. Id. ¶11. See also In Re Pamela A. G, 2006-NMSC-019, 139 N.M. 459.

15.5.3 DEFINITIONS OF ABUSE OR NEGLECT
The court must determine whether the allegations of the petition are true, by admission or proof. If the allegations are denied, the court must proceed to hear the evidence and make and record its findings on whether the child is an abused child, a neglected child or both.

The definitions of “abused child” and “neglected child” are critical in determining what must be proven and found. Given their importance, the current definitions are set forth in full:

According to the Court of Appeals, the definition of “physical abuse” in the Abuse and Neglect Act applies to the term when used in the definition of “abused child.” State ex rel. CYFD in the Matter of Vincent L., 1999-NMCA-089, ¶9, 125 N.M. 452. “Physical abuse, as currently defined in the Act, includes but is not limited to any case in which the child exhibits evidence of skin bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling or death and:

1. there is not a justifiable explanation for the condition or death;
2. the explanation given for the condition is at variance with the degree or nature of the condition;
3. the explanation given for the death is at variance with the nature of the death; or
4. circumstances indicate that the condition or death may not be the product of an accidental occurrence. §32A-4-2(F).

Other terms that are used in the definition of “abused child” and that have their own definitions are “sexual abuse” and “sexual exploitation.” “Sexual abuse” includes but is not limited to criminal sexual contact, incest or criminal sexual penetration as those acts are defined by state law. §32A-4-2(G). See §§30-9-11, 30-9-13 and 30-10-3.

“Sexual exploitation” includes but is not limited to:

1. allowing, permitting or encouraging a child to engage in prostitution;
2. allowing, permitting, encouraging or engaging a child in obscene or pornographic photographing; or
3. filming or depicting a child for obscene or pornographic commercial purposes, as those acts are defined by state law.

§32A-4-2(H).

“Abandonment,” a term used in the above definition of “neglected child,” includes instances when the parent, without justifiable cause:

1. left the child without provision for the child’s identification for a period of fourteen days; or
2. left the child with others, including the other parent or an agency, without provision for support and without communication for a period of:
   
   
   • three months if the child was under six years of age at the commencement of the three-month period; or
   • six months if the child was over six years of age at the commencement of the six-month period. §32A-4-2(A).

Leaving an infant at a hospital in accordance with the Safe Haven for Infants Act protects a parent, guardian, or custodian from criminal prosecution for child abandonment, but does not protect against abuse and neglect proceedings under the Children’s Code. §24-22-3 (as amended in 2005). The 2005 amendments to the Children’s Code also deleted the language in §24-22-7 that provided that there would be no presumption of abuse or neglect against a person seeking reunification within 30 days of the infant being left.

Neglect also occurs when a parent fails to provide medical care necessary for the child’s well-being when the parent is able to provide such care. §32A-4-2(E). In State ex rel. CYFD v. Amanda M., 2006-NMCA-133, ¶¶29-30, 140 N.M. 578, the Court of Appeals upheld an adjudication of abuse and neglect when the evidence demonstrated that mother did not recognize and seek treatment for the child’s severe head trauma even though the injury was visible to others who saw the child later and which the testimony established would have been visible to mother.

In State ex rel. CYFD v. Amanda H. (not to be confused with Amanda M.), 2007-NMCA-029, ¶¶ 21-31, 141 N.M. 259, the Court of Appeals reversed an adjudication of neglect because of insufficient evidence. The evidence showed that the baby’s positive toxicology result was likely a false positive, that mother’s admitted use of illegal drugs during the first trimester of her pregnancy did not cause the baby to be born with a drug addiction or any other health problem, and that mother’s history of violence, past drug addiction, and criminality had not rendered her unable to properly care for her child. The court held that the evidence was not clear and convincing that mother either intentionally or negligently disregarded her child’s well-being and needs, as required by §32A-4-2(E)(2), or that she was unable to provide proper parental care of her child because of her history of drug addiction, criminal misconduct, and violence, as required by §32A-4-2(E)(4). On its own, risk of future neglect is not evidence of neglect as defined in these statutes. Id. ¶29.

15.5.4 AGGRAVATED CIRCUMSTANCES
A specific inquiry occurs when CYFD alleges that the respondent has subjected the child to aggravated circumstances, as defined in §32A-4-2 below. When aggravated circumstances are alleged, the court must make and record its findings on whether aggravated circumstances have been proven. The concept of aggravated circumstances is important, not with respect to whether the child is an abused or neglected child, but with respect to whether CYFD must undertake reasonable efforts to preserve or reunify the family. Specifically, when the court finds aggravated circumstances exist, it may decide that CYFD is not required to make reasonable efforts toward preservation or reunification. See §15.5.5 below, as well as §16.11.2. See also State ex rel. CYFD v. Amy B., 2003-NMCA-017, 61 P.3d 845.

Included within the definition of aggravated circumstances is the phrase “great bodily harm,” which is also defined. “Great bodily harm” means an injury to a person that creates a high probability of death, that causes serious disfigurement or that results in permanent or protracted loss or impairment of the function of any member or organ of the body. §32A-4-2(D).

15.5.5 REASONABLE EFFORTS
The court should consider whether reasonable efforts have been made to prevent removal of the child from the home or to make it possible for the child safely to return to the home. ASFA requires that the court make a "reasonable efforts" determination within 60 days of the removal of the child from the home. This determination may be made in the ex parte custody order, at the custody hearing, or at the adjudicatory hearing if the hearing takes place within the 60 day window. (Failure to make this determination within 60 days will result in the child being rendered ineligible for federal foster care payments for the duration of his or her stay in foster care.) See Handbook §38.4 on ASFA.

15.6 ADMISSIONS OR NO CONTEST PLEAS
Most often, if there is going to be an admission or no contest plea, the admission or plea will have resulted from the pre-adjudicatory meeting and be scheduled before the court accordingly. However, a respondent could decide at any time, even in mid-trial, not to contest any further. At that point, counsel for the respondent should inform the court that the respondent is prepared to enter an admission, either by:

• admitting sufficient facts to permit a finding that some or all of the allegations of the petition are true; or
• declaring his intention not to contest some or all of the allegations in the petition. Rule 10-307(A).

The court cannot accept an admission without first addressing the respondent personally, in open court, to ensure that the admission is given freely, knowingly and voluntarily. Rule 10-307(C). The court must determine that the respondent:

• understands the allegations of the petition;
• understands the dispositions that the court may make if the allegations of the petition are found to be true;
• understands that he has a right to deny the allegations in the petition and to have a trial on them; and
• understands that if he makes an admission, he is waiving his right to trial; and that the admission is voluntary and not the result of force or threats or promises other than those in any consent decree agreement. Rule 10-307(C).

Before accepting an admission (or no contest plea), the court must satisfy itself that there is a factual basis for accepting it. The Rules of Evidence do not apply to inquiries made to determine whether there is a factual basis for an admission. Rule 10-307(D), (I).

If the child is in CYFD’s custody, the court must accept or reject the admission within five days after the admission is made. Rule 10-307(H). Once the court accepts an admission, with the exception of an admission accepted for purposes of a consent decree, the court may proceed to make any disposition permitted by law that it deems appropriate under the circumstances. Rule 10-307(E).

15.7 CONSENT DECREES
A consent decree in an abuse or neglect proceeding is an order of the court, after an admission has been made, that suspends the proceedings and in which, under terms and conditions negotiated and agreed to by the respondent and CYFD:

• legal custody of the child is transferred to CYFD for a period not to exceed six months from the date of the decree; and
• the child is allowed to remain with the respondent or other person, and the respondent will be under CYFD supervision for a period not to exceed six months. Rule 10-307(B).

If the court accepts the consent decree, the court may approve the disposition provided for in the decree or another disposition more favorable to the respondent that the one provided. If the court rejects the consent decree, the decree is null and void. Rule 10-307(F).

The procedural rules that apply to admissions, described in §15.6 above, also apply to consent decrees. See Rule 10-307.

15.8 EVIDENCE
The Rules of Evidence apply at the adjudicatory hearing. Rule 10-115; Evidence Rule 11-1101. See State ex rel. CYFD in the Matter of Esperanza M., 1998-NMCA-039, 124 N.M. 735, for a discussion of evidentiary issues arising in an adjudicatory hearing; see also Chapter 27 on evidence. In some cases due process may require that a respondent be able to present expert evidence in response to the evidence presented by CYFD or other parties. See State ex rel. CYFD v Kathleen D.C., 2007-NMSC-081, 141 N.M. 535.

15.9 BURDEN OF PROOF
CYFD bears the burden of proof. It must prove that the child is an abused or neglected child, as the case may be, by clear and convincing evidence that is competent, material and relevant in nature. §32A-4-20(H). The statute does not specify the standard required to prove the existence of aggravated circumstances but the same clear and convincing standard is generally considered to apply. The courts have come close to addressing this issue but have not specifically ruled on it. See State ex rel. CYFD v. Amy B., 2003-NMCA-017, ¶12, 61 P.3d 845. But see Santosky v. Kramer, 455 U.S. 745 (1982) (constitutional requirement of clear and convincing evidence is needed only for permanent termination of parental rights).

15.10 FINDINGS

15.10.1 ABUSE OR NEGLECT; AGGRAVATED CIRCUMSTANCES
The court must make and record any finding that the child is neglected or abused. The order ought to reflect first whether the finding was made pursuant to an admission or after an evidentiary hearing. If the former, the order should state that a sufficient factual basis for the admission was provided, as required by Rule 10-307; if the latter, it should state that proof was by clear and convincing evidence and should be accompanied with appropriate findings of fact.

Any finding as to proof of aggravated circumstances must also be included in the order, including a recitation of the factual basis for the finding.

15.10.2 REASONABLE EFFORTS
The order should address the issue of reasonable efforts to prevent removal or reunify the family. The order should include sufficient findings related to the specific facts and circumstances of the case. These findings could be made by incorporating documentation supplied by CYFD, if all parties are in agreement on the substance of the report or findings. See Handbook §13.7.4, as well as §38.4 on ASFA. 

15.10.3 CUSTODY
The order should provide for custody of the child pending the next proceeding, which would be the dispositional hearing, and include a finding that such custodial arrangement is in the best interest of the child. §32A-4-20(J).

15.11 ORDER
Any order of dismissal should state the grounds (such as a stipulation, lack of timeliness, or failure of proof) and clearly indicate that custody of the child is restored to the respondent. (Under §32A-4-20(H), if the court does not find that the child is abused or neglected, the court must dismiss the petition and may refer the family to CYFD for appropriate services.)

Another possibility is that a parent, guardian or custodian who was not made a party to the petition appears at the hearing. The court may award custody of the child to that person and dismiss the case, depending on the circumstances. See Handbook §12.4 for further discussion.

15.12 MOTION FOR NEW HEARING
A motion for a new adjudicatory hearing may be filed within ten days of entry of judgment. A motion based on newly discovered evidence may be made within 30 days of judgment but, if an appeal is pending, the court may grant the motion only on remand. The motion may be granted if the evidence will probably change the result, was discovered after the original hearing and could not have been discovered before with due diligence, is material to the issue, is not merely cumulative, and is not merely impeaching or contradictory. Rule 10-120(A). These motions are also subject to being denied automatically, if they are not granted within certain time frames. Rule 10-120(B).

The court may relieve a party from a final judgment after 30 days for a number of reasons, including mistake or excusable neglect, newly discovered evidence which could not have been discovered in time to move for a new trial earlier, or misrepresentation. This motion must be made within a reasonable time and, in some cases, no more than one year after the judgment. Rule 10-120(C).

15.13 CHECKLIST
To view an adjudicatory hearing checklist, click here: PDF.

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