New Mexico Administrative Code
Title 8 - SOCIAL SERVICES
Chapter 14 - JUVENILE JUSTICE
Part 15 - NEW MEXICO JUVENILE DETENTION REQUIREMENTS
Section 8.14.15.15 - HEARING PROCESS AND PROCEDURE
Current through Register Vol. 35, No. 6, March 26, 2024
A. Right to a hearing: in the event a sanction is imposed, the children, youth and families department provides the detention facility with a written notice of the intent to impose a sanction. The notice of sanction is provided as soon as possible after the discovery of the violation, but in no event later than thirty (30) days from the date of the last inspection conducted. A request for a hearing does not act as a stay of any sanction imposed, unless agreed to by all the parties and such an agreement is reduced to writing.
B. If a review of a sanction is requested, the detention facility shall send written notice within ten (10) working days to: Director, Juvenile Justice Division, P.O. Drawer 5160, Santa Fe, New Mexico 87502-5160. The children, youth and families department appoints a hearing officer to conduct an evidentiary hearing within thirty (30) days. The hearing officer issues a written decision to the secretary of the children, youth and families department within fifteen (15) days of the date of the hearing. The secretary of the children, youth and families department issues a formal acceptance or rejection of the hearing officer's decision within ten (10) days. In the event the secretary rejects the finding of the hearing officer, the secretary provides notice of the specific findings or conclusions rejected and the facts from the record supporting such rejection. Any appeal form this administrative determination if filed in accordance with NMSA 1978 39-3-1.1(1999). Any deadline in this hearing process may be extended by agreement of the parties and noted in writing.
C. Initiation of hearing process: the hearing process is begun upon receipt by the department of a timely request for hearing, or, in the case of a pre-hearing suspension of certification, by service upon the facility of an emergency suspension order and notice of hearing.
D. Request for hearing:
E. Hearing officer: all administrative hearings are conducted by a hearing officer appointed by the secretary or his/her designee.
F. Qualifications of the hearing officer: the hearing officer may be an employee of the children, youth and families department but may not have been involved, directly or indirectly, with the administrative decision at issue. The hearing officer need not be a licensed attorney.
G. Disqualification of the hearing officer: A hearing officer does not participate in any proceeding if, for any reason, the hearing officer cannot afford a fair and impartial hearing to either party. The hearing officer can only be removed for good cause. Any party seeking to recuse the hearing officer must file a motion with the officer within seven (7) days of receipt of the initial communication from the hearing officer, setting forth the grounds for disqualification and accompanied by all supporting reasons, affidavits, and authorities. The hearing officer rules on the request to disqualify, and an appeal of the ruling may be made to the secretary within seven days of the ruling. The secretary promptly determines the validity of the grounds alleged and takes any appropriate action. A written request to disqualify and an appeal of the hearing officer's ruling on the matter tolls any applicable timetable for completion of the proceedings.
H. Duties of the hearing officer: upon appointment, the hearing officer establishes an official file which contain all the filed notices, pleadings, briefs, recommendations, correspondence and decisions. It shall also contain the department's initial action, as well as the request for hearing. Upon conclusion of the proceeding and following issuance of the final decision, the hearing officer shall turn over to the department this official file for future custody.
I. The hearing officer shall preside over the hearing, administer oaths, take evidence and rule on matters that arise prior to and at the hearing.
J. Appearances and filing:
K. Filing: any party filing documents in the appeal shall sign the original and hand deliver or mail it to the hearing officer, and shall hand deliver or mail copies to all other parties.
L. Pre-hearing conference: Purpose: a pre-hearing conference is scheduled at a time reasonably convenient to all parties, in order to:
M. Costs: each party shall bear its own costs, including transportation costs, and attorney fees.
N. Informal: either party may request an informal resolution conference to try to establish a corrective action plan addressing the areas of non-compliance identified in its notice of sanction. The informal conference does not stay any hearing, unless the parties agree to a stay and so notify the hearing officer, in writing of this agreement. No offer of settlement made at the conference shall be admissible evidence at a later hearing. No record shall be made of informal conference.
O. Settlement: any settlement reached between the parties is written, signed by the hearing officer and the parties or their attorneys, and submitted to the secretary. The secretary approves the settlement agreement.
P. Postponement or continuance: the hearing officer may postpone or continue a hearing upon his own motion or upon motion of a party, for good cause shown.
Q. Conduct of the hearing: Public: all hearings are open to the public. If it is necessary to use the names of children or employees of the detention facility, the hearing officer directs the parties to develop a process to prevent the disclosure of the full identity of the child or employee.
R. Authority and responsibility of hearing officer. The hearing officer has all the powers necessary to conduct a hearing and to take all necessary action to avoid delay, maintain order, and assure development of a clear and complete record, including but not limited to:
S. Order of presentation should be the same for all adverse actions:
T. Hearing decision must be in writing.
U. Burden of proof. The department must prove that the action proposed in the notice of sanction is supported by a preponderance of evidence.
V. Evidence: the hearing is conducted in an orderly and informal manner without strict adherence to the rules of evidence that govern proceedings in the courts of the state of New Mexico. However, in order to support the secretary's decisions, there must be a residuum of legally competent evidence.
W. Record: Content: the record of a proceeding under these regulations includes tape recording of proceedings, all documents the hearing officer marks into evidence during the hearing, including orders the hearing officer issues, the notice of department sanctions, findings of fact and conclusions of law, recommendations of the hearing officer, and the final decision of the secretary. Any records produced during the hearing are public records provided that all identifying information concerning children is redacted.
X. Report and recommendation of hearing officer: hearing officer's report contains:
Y. Review by department: