2023 New Mexico Statutes › Chapter 32A - Children's Code › Article 4 - Child Abuse and Neglect › Section 32A-4-10 - Basic rights.

A. A child subject to the provisions of the Children's Code is entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code.
B. At the inception of an abuse or neglect proceeding, counsel shall be appointed for the parent, guardian or custodian of the child. The appointed counsel shall represent the parent, guardian or custodian who is named as a party until an indigency determination is made at the custody hearing. Counsel shall also be appointed if, in the court's discretion, appointment of counsel is required in the interest of justice.
C. At the inception of an abuse and neglect proceeding, the court shall appoint a guardian ad litem for a child under fourteen years of age. If the child is fourteen years of age or older, the court shall appoint an attorney for the child. No officer or employee of an agency that is vested with the legal custody of the child shall be appointed as guardian ad litem of or attorney for the child. Only an attorney with appropriate experience shall be appointed as guardian ad litem of or attorney for the child.
D. When reasonable and appropriate, the court shall appoint a guardian ad litem or attorney who is knowledgeable about the child's particular cultural background.
E. When a child reaches fourteen years of age, the child's guardian ad litem shall continue as the child's attorney; provided that the court shall appoint a different attorney for the child if:
(1) the child requests a different attorney;
(2) the guardian ad litem requests to be removed; or
(3) the court determines that the appointment of a different attorney is appropriate.
F. The court shall assure that the child's guardian ad litem zealously represents the child's best interest and that the child's attorney zealously represents the child.
G. A person afforded rights under the Children's Code shall be advised of those rights at that person's first appearance before the court on a petition under the Children's Code.
History:
1978 Comp., § 32A-4-10, enacted by Laws 1993, ch. 77, § 104; 2005, ch. 189, § 43.
ANNOTATIONS
The 2005 amendment,
effective June 17, 2005, in Subsection B, provided that at the inception of an abuse or neglect proceeding, counsel shall be appointed and that counsel shall represent the parent, guardian or custodian who is named as a party; in Subsection C, provided that at the inception of a proceeding, the court shall appoint a guardian ad litem for a child under fourteen years of age and an attorney for a child who is fourteen year of age or older and that only an attorney with appropriate experience shall be appointed as guardian ad litem of or as attorney for the child; added Subsection E, which provided that when a child reaches the age of fourteen, the child's guardian ad litem shall continue as the child's attorney, unless the court appoints a different attorney for the reasons stated in Paragraphs E(1) through (3); and in Subsection F, provided that the court shall assure that the child's guardian ad litem zealously represents the child's best interests and that the child's attorney zealously represents the child.
Exclusionary rule.
— The purpose of the exclusionary rule is not served in an abuse and neglect proceeding whose focus is the health and safety of innocent children.
State ex rel. Children, Youth & Families Dep't v. Michael T.
, 2007-NMCA-163, 143 N.M. 75, 172 P.3d 1287.
Effective assistance of counsel.
— Where notice of appeal from an adjudication of abuse and neglect is filed late, the court will presume that counsel was ineffective and accept jurisdiction over the appeal.
State ex rel. Children, Youth & Families Dep't v. Amanda M.
, 2006-NMCA-133, 140 N.M. 578, 144 P.3d 137.
Judicial immunity.
— Judicial immunity was developed to preserve the "autonomy and integrity of the judiciary" so that "persons who are integral to the judicial process are able to perform their functions without the intimidating effect of potential lawsuits." The court bears the statutory responsibility in children's court proceedings for appointing counsel, ensuring the competence of counsel, and for permitting counsel to withdraw. As a result, these are judicial and not administrative functions and there is absolute immunity.
Hunnicutt v. Sewell
, 2009-NMCA-121, 147 N.M. 272, 219 P.3d 529.
A parent has standing to assert the child's right to counsel
in a termination of parental rights proceeding.
State ex rel. Children, Youth & Families Dep't v. John R.
, 2009-NMCA-025, 145 N.M. 636, 203 P.3d 167.
Failure to appoint counsel.
— The failure of the court to appoint counsel for a child who has turned fourteen years of age during the pendency of a termination of parental rights proceeding is reversible error if the guardian ad litem appointed for the child requests to be removed.
State ex rel. Children, Youth & Families Dep't v. John R.
, 2009-NMCA-025, 145 N.M. 636, 203 P.3d 167.
The district court violated parent's statutory right to counsel.
— Where the children, youth and families department (CYFD) filed an abuse and neglect petition, alleging that appellant (mother) neglected her two-month old child, and where CYFD moved to terminate mother's parental rights to all four of her children, and where the district court held a termination of parental rights trial, during which mother's court-appointed counsel asked to withdraw from representation, asserting that mother did not want the attorney's representation, and where the district court, without ever asking mother directly whether she intended to waive her right to counsel, proceeded with the trial as if mother waived her right to counsel, mother's statutory right to counsel was violated because the record is devoid of evidence indicating that mother waived her right to counsel, much less that she did so in an intelligent and knowing manner. Moreover, the lack of appointed counsel prejudiced mother because she was unable to effectively contest the allegations levied against her and lacked the ability to challenge the admissibility of evidence that the district court relied on in deciding to terminate mother's parental rights.
State ex rel. CYFD v. Maisie Y.
, 2021-NMCA-023,
overruling in part State ex rel. CYFD v. Yodell B.
, 2016-NMCA-029, 367 P.3d 881.
Children's court's failure to appoint guardian not jurisdictional.
— In a proceeding to terminate a minor mother's parental rights, the failure of the children's court to appoint a guardian ad litem for the mother did not deprive the court of jurisdiction since the court appointed counsel to represent her pursuant to Rule 1-017C NMRA.
State ex rel. Children, Youth & Families Dep't v. Lilli L.
, 1996-NMCA-014, 121 N.M. 376, 911 P.2d 884.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights, 92 A.L.R.5th 379.
Law reviews.
— For note and comment, "Attorneys for Children in Abuse and Neglect Proceedings: Implications for Professional Ethics and Pending Cases", see 36 N.M. L. Rev. 533 (2006).
For comment, "Incorporating the Law of Criminal Procedure in Termination of Parental Rights Cases: Giving Children a Voice through Matthews v. Eldridge", see 32 N.M. L. Rev 143 (2002).