28.1 INTRODUCTION
Situations that give rise to allegations of child abuse or neglect, the family circumstances involved in those cases, and the needs of the children over time all increase the odds of problems arising in a case “in between” hearings. Problems may also arise for which the Children’s Code provides no ready solution. This chapter is an effort to compile in one place some of the statutory tools available to the court and also to describe its equitable powers.

28.2 EX PARTE CUSTODY ORDERS
While most motions for an ex parte custody order will be filed at the same time as the petition alleging abuse or neglect and commencing the proceeding, the Children’s Code allows an ex parte custody order to be issued at any time during the proceeding. §32A-4-16. Such an order could be used, for example, where a child needed to be retaken into the legal custody of CYFD due to an emergency situation, after the parent/respondent had been granted legal custody of the child at some stage of the proceedings. An order may be issued upon the same type of sworn statement of facts required for an ex parte order at the beginning of the proceeding. See Handbook §§12.4 and 12.5.

28.3 TEMPORARY RESTRAINING ORDERS
Either on the court’s own motion or the motion of a party, the court may make an order restraining the conduct of any party over whom the court has obtained jurisdiction if:

• the court finds that the person’s conduct is or may be detrimental or harmful to the child and will tend to defeat the execution of any order of the court; and
• due notice of the motion and the grounds for the motion and an opportunity to be heard on the motion have been given to the person against whom the order is directed. §32A-1-18(D).

28.4 CHANGE OF PLACEMENT
Under §32A-4-14, the court may be asked to consider whether CYFD has abused its discretion in changing a child’s placement during the course of the abuse or neglect proceeding. Under the statute, if CYFD decides to change a placement, it must send notice to the child’s GAL, all parties (which includes the child but, as with other parties, notice is sent to the child’s attorney), the child’s CASA, the child’s foster parents and the court ten days prior to the placement change, although in an emergency CYFD can move the child and send notice within three days of the move. When the child’s GAL requests a court hearing to contest the proposed change, the department may not change the placement pending the results of the court hearing, unless an emergency requires changing the placement prior to the hearing. While the statute is silent, this last provision arguably applies when the attorney for an older child contests a proposed change as well.

28.5 FINDINGS AND REMEDIES BEYOND THOSE REQUESTED
The Children’s Code provides in §32A-1-18(A) for the court to make findings or afford remedies as appropriate:

When it appears from the facts during the course of any proceeding under the Children’s Code that some finding or remedy other than or in addition to those indicated by the petition or motion are appropriate, the court may, either on motion by the children’s court attorney or that of counsel for the child, amend the petition or the motion and proceed to hear and determine the additional or other issues, findings or remedies as though originally properly sought.

The Code allows for flexibility in reaching solutions for children, and essentially allows the Court to conform the proceedings to the facts that are established during the course of the proceeding.

28.6 CONTEMPT OF COURT
The Children’s Court may punish a person for contempt of court for disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders. §32A-1-18(C).

The court has the power and authority to issue orders at any stage of the proceeding to compel the appearance of witnesses, the giving of testimony and the production of evidence by witnesses, including any party. (Production of evidence includes an order to the respondent to undergo a psychological diagnostic evaluation and treatment.) Failure or refusal to obey the court’s order may be punished as contempt. A claim of self-incrimination does not excuse the person from complying with the court’s order, as in the case of a court-ordered psychological evaluation. §32A-4-13; see Handbook §27.4.2 on immunity.

28.7 EQUITABLE POWERS OF THE COURT
The New Mexico Supreme Court has discussed the “tradition of protecting a child’s best interests in a variety of circumstances” and observed that it is “well-settled law” that when the case involves children, the trial court has broad authority to fashion its rulings in “best interests of children.” The court’s authority under the “best interest of the children” rule is essentially equitable. Sanders v. Rosenberg, 1997-NMSC-002, ¶10, 122 N.M. 692 (decided in 1996). Sanders was a case involving a custody dispute after a divorce, but it was cited approvingly in State ex rel. CYFD in the Matter of A.H., 1997-NMCA-118, 124 N.M. 244, which continued to note that a court of equity has the power of devising a remedy to fit the circumstances of the situation. Id. ¶8.

This power to devise remedies is subject to legislative direction, and nothing in the appellate courts’ discussions suggests that a children’s court’s equitable powers override the dictates of the Children’s Code. What these discussions suggest is that the court may, and should, exercise its equitable powers as appropriate to address the best interests of a child, within the broad scope of the Children’s Code.

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