A. The proceedings shall be recorded by stenographic notes or by electronic, mechanical or other appropriate means. B. All abuse and neglect hearings shall be closed to the general public. C. Only the parties, their counsel, witnesses and other persons approved by the court may be present at a closed hearing. The foster parent, preadoptive parent or relative providing care for the child shall be given notice and an opportunity to be heard at the dispositional phase. Those other persons the court finds to have a proper interest in the case or in the work of the court may be admitted by the court to closed hearings on the condition that they refrain from divulging any information that would identify the child or family involved in the proceedings. D. Accredited representatives of the news media shall be allowed to be present at closed hearings, subject to the condition that they refrain from divulging information that would identify any child involved in the proceedings or the parent, guardian or custodian of that child and subject to enabling regulations as the court finds necessary for the maintenance of order and decorum and for the furtherance of the purposes of the Children's Code. A child who is the subject of an abuse and neglect proceeding and is present at a hearing may object to the presence of the media. The court may exclude the media if it finds that the presence of the media is contrary to the best interests of the child. E. If the court finds that it is in the best interest of a child under fourteen years of age, the child may be excluded from a hearing under the Abuse and Neglect Act. A child fourteen years of age or older may be excluded from a hearing only if the court makes a finding that there is a compelling reason to exclude the child and states the factual basis for the finding. F. Those persons or parties granted admission to a closed hearing who intentionally divulge information in violation of this section are guilty of a petty misdemeanor. G. The court shall determine if the allegations of the petition are admitted or denied. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court, after hearing all of the evidence bearing on the allegations of neglect or abuse, shall make and record its findings on whether the child is a neglected child, an abused child or both. If the petition alleges that the parent, guardian or custodian has subjected the child to aggravated circumstances, then the court shall also make and record its findings on whether the aggravated circumstances have been proven. H. If the court finds on the basis of a valid admission of the allegations of the petition or on the basis of clear and convincing evidence, competent, material and relevant in nature, that the child is neglected or abused, the court shall enter an order finding that the child is neglected or abused and may proceed immediately or at a postponed hearing to make disposition of the case. If the court does not find that the child is neglected or abused, the court shall dismiss the petition and may refer the family to the department for appropriate services. I. A party aggrieved by an order entered pursuant to Subsection H of this section may file an immediate appeal to the court of appeals. J. In that part of the hearings held under the Children's Code on dispositional issues, all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value even though not competent had it been offered during the part of the hearings on adjudicatory issues. K. On the court's motion or that of a party, the court may continue the hearing on the petition for a period not to exceed thirty days to receive reports and other evidence in connection with disposition. The court shall continue the hearing pending the receipt of the predisposition study and report if that document has not been prepared and received. During any continuances under this subsection, the court shall make an appropriate order for legal custody. History: 1978 Comp., § 32A-4-20, enacted by Laws 1993, ch. 77, § 114; 1997, ch. 34, § 4; 1999, ch. 77, § 6; 2005, ch. 189, § 46; 2009, ch. 239, § 40; 2014, ch. 69, § 2. The 2014 amendment, effective July 1, 2014, provided for immediate appeals as of right from an order of neglect or abuse; in Subsection H, in the first sentence, after "neglected or abused, the court", added "shall enter an order finding that the child is neglected or abused and"; and added Subsection I. The 2009 amendment, effective July 1, 2009, in Subsection D, added the last sentence. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, in Subsection E, provided that a child under fourteen years of age may be excluded from a hearing and that a child fourteen years of age or older may be excluded from a hearing only if there is a compelling reason. The 1999 amendment, effective July 1, 1999, added the second sentence in Subsection C and the last sentence in Subsection G. The 1997 amendment, effective July 1, 1997, substituted "period not to exceed thirty days" for "reasonable time" in the first sentence in Subsection J. Standing to contest dismissal of petition against co-respondent. — A co-respondent does not have standing to contest the dismissal of an abuse and neglect petition against the other co-respondent. State ex rel. Children, Youth & Families Dep't v. Jeremy N. , 2008-NMCA-145, 145 N.M. 198, 195 P.3d 365, cert. denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488. Where the main issue at the adjudicatory proceeding is the cause of the child's injuries and where there is an increased risk of an erroneous deprivation of the parent's interest without the appointment of an expert to determine if there is an alternative cause of the child's injuries, an indigent parent is entitled to the appointment of an expert witness at the state's expense. State ex. rel., Children, Youth & Families Dep't v. Kathleen D.C. , 2007-NMSC-018, 141 N.M. 535, 157 P.3d 714. Qualified expert witness testimony under the federal Indian Child Welfare Act. — The federal Indian Child Welfare Act (ICWA) requires, as a procedural safeguard for removal of an Indian child from an Indian family, qualified expert witness (QEW) testimony covering two areas: (1) the likelihood of continued custody by the parent or Indian custodian resulting in serious emotional or physical damage to the child (serious damage) and (2) the prevailing social and cultural standards of the Indian child's tribe (cultural standards). Courts must independently analyze qualification in the two categories of required QEW testimony under the ICWA, and the testimony can come from one or multiple experts. State ex rel. CYFD v. Douglas B. , 2023-NMSC-028, aff'g 2022-NMCA-028, 511 P.3d 357. The district court did not lay the proper foundation to qualify witness as an expert to testify regarding serious damage to Indian child in abuse and neglect proceedings. — In an abuse and neglect case where the Children, Youth and Families Department (CYFD) received a referral after a Indian child revealed to a source that she was self-harming and wanted to kill herself, and where CYFD took custody of the child and placed her with her paternal aunt, and where, in an adjudicatory hearing to determine whether the child was abused or neglected and whether to keep the child in CYFD custody under the child's aunt's care, the district court qualified CYFD's witness as a qualified expert witness (QEW) pursuant to the federal Indian Child Welfare Act, but did not clearly distinguish the witness's qualifications to testify about each of the two categories of QEW testimony required by the ICWA, and where the district court ordered continuing custody by CYFD and that the return of the child to her parents was likely to result in serious harm to the child and was not in the child's best interest, finding that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that such efforts had been unsuccessful, the district court erred in its abuse and neglect adjudication, because serious damage to the child and cultural standards of the Indian child's tribe are subjects requiring QEW testimony, and qualifications of an expert on these subjects must be analyzed independently, and in this case, the district court did not lay the proper foundation required by Rule 11-702 NMRA to qualify CYFD's witness to testify about serious damage to the child and therefore the court abused its discretion in allowing the witnesses to testify on this subject. State ex rel. CYFD v. Douglas B. , 2023-NMSC-028, aff'g 2022-NMCA-028, 511 P.3d 357. Witnesses qualified as experts for purposes of the federal Indian Child Welfare Act. — A qualified expert witness for Indian Child Welfare Act purposes must be qualified to testify regarding serious damage to the child, but need not necessarily be qualified to testify about cultural standards of the particular tribe if such expertise is irrelevant to the particular circumstances at issue in the proceeding. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E ., 2022-NMCA-028, cert. granted. Standard of review to be applied to a district court's decision to qualify an expert for Indian Child Welfare Act purposes. — The appropriate standard of review to be applied to a district court's decision to qualify and admit the testimony of a qualified expert witness within the meaning of the federal Indian Child Welfare Act (ICWA) is an abuse of discretion standard. ICWA experts are to be evaluated in the same manner as other experts under a given jurisdiction's evidentiary rules. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E ., 2022-NMCA-028, cert. granted. The district court abused its discretion in qualifying Indian Child Welfare Act expert witness. — In an abuse and neglect case, where the district court adjudicated child as abused and neglected and ordered that child remain in the custody of the children, youth and families department (CYFD) under the care of child's aunt, and where parents claimed that CYFD failed to present a qualified expert witness during the adjudicatory hearing and that the district court committed reversible error by allowing CYFD's proffered expert on the federal Indian Child Welfare Act to testify without the necessary foundation, the district court abused its discretion in qualifying CYFD's witness as an expert for purposes of the ICWA, because although the witness was qualified to testify with respect to the prevailing social and cultural standards of child's tribe, the witness was not qualified to opine as to whether child's continued custody by parents was likely to result in serious emotional or physical damage to the child. The federal guidelines require ICWA experts to have expertise beyond the normal social worker qualifications and the record does not contain a sufficient foundation establishing that CYFD's witness had the requisite expertise in the areas of substance abuse, domestic violence, self-harm, suicidal ideation, and household hazards, which were the allegations in this case, to opine as to a causal relationship between these particular conditions and the likelihood that continued custody of child will result in serious emotional or physical damage to child. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E ., 2022-NMCA-028, cert. granted. Adjudication of abuse and neglect was error. — In an abuse and neglect case, where the district court adjudicated child as abused and neglected and ordered that child remain in the custody of the children, youth and families department (CYFD) under the care of child's aunt, and where parents claimed that CYFD failed to present a qualified expert witness during the adjudicatory hearing and that the district court committed reversible error by allowing CYFD's proffered expert on the federal Indian Child Welfare Act to testify without the necessary foundation, the district court erred in adjudicating child as abused and neglected where the court applied the wrong legal standard in qualifying CYFD's expert witness and where there was insufficient foundational evidence in the record to uphold the district court's acceptance of CYFD's proffered expert as qualified to issue an opinion as to whether child's continued custody by parents was likely to result in serious emotional or physical damage. State ex rel. CYFD v. Douglas B. and State ex rel. CYFD v. Sara E ., 2022-NMCA-028, cert. granted. Departmental custody continued until final determination made. — In a proceeding on an abuse and neglect petition filed by the children, youth and families department, the trial court had authority to continue custody of the children in the Department until determination of proper placement, and the Children's Court had authority under Subsection J to make necessary findings and conclusions with regard to the father's fitness to be a legal custodian. State ex rel. Children, Youth & Families Dep't v. A.H. , 1997-NMCA-118, 124 N.M. 244, 947 P.2d 1064. Authority of court to exclude media. — Even though the conditioning of media access on a requirement that the press refrain from divulging information that would identify a child, parent, guardian, or custodian, could not be met in a highly publicized child abuse and neglect case, the children's court was within its discretion under Subsection D to decide whether to allow the media to attend the proceedings. Albuquerque Journal v. Jewell , 2001-NMSC-005, 130 N.M. 64, 17 P.3d 437. Hearsay statements. — Admission of child's hearsay statements did not violate parents' constitutional rights to due process at the adjudicatory hearing where parents received proper notice of department's intent to use the child's statements, they were each represented by able attorneys who argued vigorously on their behalf and carefully cross-examined department's witnesses about the reliability and credibility of the child's statements, and a guardian ad litem had been appointed for the child. State ex rel. Children, Youth & Families Dept. v. Frank G. , 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, aff'd , 2006-NMSC-019, 139 N.M. 459, 134 P.3d 746. Final appealable order. — Abuse and neglect adjudication is a final, appealable order. State ex rel. Children, Youth & Families Dept. v. Frank G. , 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, aff'd , 2006-NMSC-019, 139 N.M. 459, 134 P.3d 746. Jurisdiction pending appeal. — While appeal of abuse and neglect adjudication is pending, the children's court has jurisdiction to take further action in the case. State ex rel. Children, Youth & Families Dept. v. Frank G. , 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, aff'd , 2006-NMSC-019, 139 N.M. 459, 134 P.3d 746. Doctrine of claim preclusion inapplicable to non-adversarial administrative child abuse investigation. — Where plaintiff challenged, on res judicata grounds, the children, youth and families department's (CYFD) authority to conduct a child protective services investigation and to issue investigative decisions against him after agreeing to dismiss plaintiff from abuse and neglect proceedings with prejudice, the doctrine of claim preclusion did not apply to the substantiation investigation, which is a non-adversarial administrative investigation conducted by a CYFD employee, because it would have been contrary to law for CYFD to carry out its non-adversarial substantiation investigation and documentation requirements during an adversarial proceeding in children's court. State ex rel. CYFD v. Scott C. , 2016-NMCA-012, cert. denied, 2016-NMCERT-001.
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