26.1 NEW RULES ADOPTED
The rules for discovery in abuse or neglect proceedings have been completely revised since this Handbook was first published. Children’s Court Rule 10-306 has been withdrawn and a series of discovery rules applicable to both abuse and neglect cases and delinquency proceedings has been adopted. See Rules 10-132 through 10-138. For abuse and neglect cases, the Supreme Court has also adopted requirements for the disclosure of certain information irrespective of any requests for discovery. These disclosure rules are similar but not the same as the disclosure rules in Article 2 for delinquency cases. See Rules 10-308 through 10-310, described in §26.3 below.

26.2 DISCOVERY RULES

26.2.1 SCOPE OF DISCOVERY
Rule 10-133 of the Children’s Court Rules describes the scope of discovery as follows:

Unless limited by court order, parties may obtain discovery regarding any matter, not privileged, which is relevant to the act charged or alleged or the defense of the accused person, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter.

The rule provides for two forms of discovery, “statements” and depositions.

26.2.2. FORMS OF DISCOVERY; PROCEDURES
Statements: Any person, other than the respondent, with information subject to discovery must give a statement if requested by a party. If the person refuses, the party may obtain the statement by serving a “notice of statement” upon the person to be examined and upon other parties at least 5 days before the date scheduled for the statement. A subpoena may be served to secure the presence of the person to be examined or the materials to be examined during the statement. Rule 10-133(A).

Depositions: Depositions may be taken upon:

• agreement of the parties; or
• order of the court at any time after the petition is filed, upon a showing that it is necessary to take the person’s deposition to prevent injustice.

Attendance of witnesses can be compelled by subpoena. If a subpoena duces tecum for the production of documents or things is to be served, the designation of materials to be produced must be attached to or included with the notice of deposition. Rule 10-133(B), (D) and (E).

Rule 10-133 describes in extensive detail the procedures to be followed for depositions, which are similar but by no means identical to the procedures outlined in the Rules of Civil Procedures. Rule 10-134 provides very specific practices and procedures to be followed when a deposition is to be recorded by audiotape or videotape. Rule 10-132 allows the parties to vary procedures by written stipulation. Rule 10-136 allows for motions for orders compelling discovery in depositions, and sanctions for failure to comply. All of these rules should be reviewed in their entirety when depositions are under consideration.

Rule 10-135 allows for the use of depositions in court proceedings for any purpose permitted by the Rules of Evidence. It also addresses the effect of errors and irregularities in a deposition to be used in court.

26.2.3 PROTECTIVE ORDERS
Either a party or the person from whom discovery is sought may move for a protective order for good cause shown, and the order may be issued by the court in which the action is pending or the court in the district where the deposition or statement is to be taken. Rule 10-138. The court may make any order which justice requires in order to protect a party or person from annoyance, embarrassment, oppression, undue burden or expense, the risk of physical harm, intimidation, bribery or economic reprisals. Rule 10-138 lists a number of restrictions that may be included in the order, including that the deposition or statement be conducted with no one present but the persons designated by the court.

If the moving party is concerned that a showing of good cause requires the disclosure of information that should not be disclosed, the party may make the showing of good cause in the form of a written statement for inspection by the court in camera. If the court does not permit the in camera showing, the statement will be returned to the movant upon request or sealed. Rule 10-138(B).

26.3 RULES ON DISCLOSURE

26.3.1 DISCLOSURE BY PARTIES REQUIRED
Rules 10-308, Rule 309, and 10-310 provide specifically for the disclosure of certain information by CYFD, the respondent, and the child’s guardian ad litem, respectively. These rules are similar but not identical to the rules that apply in delinquency proceedings (Rules 10-213 and 10-214).

26.3.2 DISCLOSURE BY CYFD UNDER RULE 10-308
CYFD must disclose certain information and make it available to the respondent and GAL at least 15 days before the adjudicatory hearing or termination of parental rights hearing, although the court may shorten the time. CYFD must disclose and make available:

• statements made by the respondent or a co-respondent, or copies thereof, which are within the possession, custody or control of CYFD and the existence of which is known, or by the exercise of due diligence may become known, to the children’s court attorney;
• books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are in CYFD’s possession, custody or control and which are intended as evidence at the hearing, or were obtained from or belong to the respondent;
• results or reports of physical or mental exams, and of scientific tests and experiments made in connection with the case, which are within CYFD’s possession, custody or control and the existence of which is know, or by the exercise of due diligence, may become known to the children’s court attorney; and
• results written list of the names and addresses of all witnesses the children’s court attorney intends to call, together with any recorded or written statement made by the witness. Rule 10-308(A).

The respondent may examine, photograph or copy material so disclosed. Rule 10-308(C).

The court may order any other discovery permitted by the Rules of Civil Procedure and may order or limit the production of books, documents, photographs, tangible objects, reports or other information as may be necessary to ensure a fair consideration of the allegations while considering the best interests of the child. Rule 10-308(B).

Unless otherwise ordered, the children’s court attorney is not required to disclose material if:

• the disclosure will expose a confidential informer; or
• there is substantial risk to some person of physical harm, intimidation, bribery, economic reprisals or unnecessary annoyance or embarrassment which outweighs any usefulness of the disclosure to defense counsel. Rule 10-308(E).

At least 10 days before the hearing, the children’s court attorney must file a certificate stating that all information required to be produced has been produced, except as specified. If information specifically excepted is later furnished, a supplemental certificate must be filed specifying the material furnished. Copies of the certificate and any supplemental certificate must be served on the respondent. Rule 10-308(D).

Rule 10-308(D) requires that certificates filed by the children’s court attorney acknowledge the continuing duty to disclose additional information obtained prior to the adjudicatory hearing or TPR hearing. See §26.3.5 below.

26.3.3 DISCLOSURE BY RESPONDENT UNDER RULE 10-309
The requirements for disclosure by the respondent are similar but not the same as for CYFD. The respondent must disclose the following information and make it available to CYFD and the GAL at least 15 days before the adjudicatory hearing or TPR hearing, unless the court orders a shorter time:

• books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody or control of the respondent and which the respondent intends to introduce in evidence or which were prepared by a witness whom the respondent intends to call;
• results of reports of physical or mental exams and of scientific tests or experiments made, or copies thereof, within the possession or control of the respondent, which the respondent intends to introduce or which were prepared by a witness the respondent intends to call; and
• a list of the names and addresses of the witnesses the respondent intends to call, together with any recorded or written statement made by the witness. Rule 10-309(A).

CYFD and the GAL may examine, photograph or copy any material so disclosed. Rule 10-309(B).

Except as to scientific or medical reports, the rule does not authorize the discovery or inspection of:

• reports, memoranda or other internal defense documents made by the respondent or respondent’s attorneys in connection with the investigation or defense of the case, or
• statements made by the respondent to respondent’s agents or attorneys. Rule 10-309(C).

Like the children’s court attorney, the respondent must file a certificate stating that all required information has been produced, except as specified. This certificate must be filed at least 10 days before the hearing in question. If information specifically excepted is later furnished, a supplemental certificate must be filed specifying the material furnished. Copies of the certificate and any supplemental certificate must be served on the department and the GAL. Rule 10-309(D).

Rule 10-309(D) requires that certificates filed by the respondent acknowledge the continuing duty to disclose additional information obtained prior to the adjudicatory hearing or TPR hearing. See §26.3.5 below.

26.3.4 DISCLOSURE BY GUARDIAN AD LITEM UNDER RULE 10-310
The new requirements for disclosure by the GAL for the child are similar but not the same as the requirements for disclosure by CYFD and the respondent under Rules 10-308 and 10-309 respectively. Unless the court orders a shorter time, the GAL must disclose certain information and make it available to CYFD and the respondent at least 15 days before the adjudicatory hearing or TPR hearing. The GAL must disclose and make available:

• a statement of the child’s declared position;
• a statement of the GAL’s position;
• any books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody or control of the GAL and which the GAL intends to introduce in evidence or which were prepared by a witness whom the GAL intends to call;
• results or reports of physical or mental exams and of scientific tests or experiments made, or copies thereof, within the possession or control of the GAL, which the GAL intends to introduce or which were prepared by a witness the GAL intends to call; and
• a list of the names and addresses of the witnesses the GAL intends to call, together with any recorded or written statement made by the witness. Rule 10-310(A).

CYFD and the respondent may examine, photograph or copy any material disclosed. Rule 10-310(B).

Except for scientific or medical reports, the rule does not authorize discovery or inspection of:

• reports, memoranda or other internal defense documents made by the GAL in connection with the investigation or defense of the case; or
• statements made by the child to the GAL unless such statements contradict prior statements made by the child in connection with any allegation of abuse or neglect. Rule 10.310(C).

Like the children’s court attorney and the respondent, the GAL must file a certificate stating that all required information has been produced, except as specified. This certificate must be filed at least 10 days before the hearing in question. If information specifically excepted is later furnished, a supplemental certificate must be filed specifying the material furnished. Copies of the certificate and any supplemental certificate must be served on the department and the GAL. Rule 10-310(D).

Rule 10-310(D) also requires that certificates filed by the GAL acknowledge the continuing duty to disclose additional information obtained prior to the adjudicatory hearing or TPR hearing. See §26.3.5 below.

26.3.5 CONTINUING DUTY TO DISCLOSE
All three of the disclosure rules require that the parties acknowledge in their certifications the continuing duty to disclose additional information. Under Rule 10-137, the parties have a continuing duty to disclose information that would have been subject to disclosure if known at the time:

If, subsequent to compliance with Rule 10-213, 10-214, 10-308, 10-309 or 10-350 (see note below) NMRA and prior to or during the adjudicatory hearing or termination of parental rights hearing, a party discovers additional material or witnesses which the party would have been under a duty to produce or disclose at the time of such previous compliance, the party shall promptly give written notice to the other party of the existence of the additional material or witnesses.

26.3.6 SANCTIONS FOR FAILURE TO DISCLOSE
All three of the disclosure rules close with the statement: “If [CYFD, the respondent or the GAL] fails to comply with any provision of this rule the court may enter an order pursuant to Rule 10-113 NMRA or Rule 10-137 NMRA.” Under Rule 10-113, an attorney who willfully fails to observe requirements of the rule may be held in contempt of court and subject to disciplinary action. Under Rule 10-137, the court may order discovery or inspection of the materials not previously disclosed, grant a continuance, prohibit the non-disclosing party from calling the witness or introducing into evidence the material not disclosed, or make other orders appropriate under the circumstances.

26.4 COURT-ORDERED DIAGNOSTIC EXAMINATIONS AND EVALUATIONS
At the conclusion of the custody hearing, the court may order the respondent or the child alleged to be neglected or abused, or both, to undergo appropriate diagnostic examinations or evaluations. Copies of the reports must be provided to the parties at least five days before the adjudicatory hearing, but not to the court. §32A-4-18(E).Rule 10-306.1, added to the Children’s Court Rules in 1999, also provides for court-ordered diagnostic examinations and evaluations:

At any time after the commencement of an abuse or neglect proceeding, upon motion of a party or upon the court’s own motion, the court may order a respondent or any child alleged to be neglected or abused to undergo a diagnostic examination or evaluation. Copies of any diagnostic examination or evaluation report shall be provided to the parties. If the examination is ordered prior to the adjudicatory hearing, copies of the diagnostic or evaluation report shall be provided to the parties at least five (5) days prior to the adjudicatory hearing. Diagnostic or evaluation reports shall not be provided to the court prior to the adjudicatory hearing.

26.5 DISCOVERY IN PRACTICE
Traditional discovery as practiced in other types of civil litigation has not played a large role in civil abuse and neglect proceedings to date. One of the reasons for the limited use of discovery is the short timeline. The custody hearing is held within 10 days of the filing of the petition alleging abuse or neglect and the adjudicatory hearing takes place within 60 days of service of the petition. Another reason is that informal discovery does take place. Affidavits filed early in the case provide information, the social worker submits a written or verbal report at the custody hearing, CYFD usually makes its files available to the guardian ad litem and the respondent’s attorney, and the pre-adjudicatory and pre-permanency meetings all provide further opportunity for information-sharing.

Return to Top