A. The "office of children's court attorney" is established in each judicial district. Except as provided by Subsection C, D or E of this section, each district attorney is the ex-officio children's court attorney for the judicial district of the district attorney.

B. Except as provided by Subsection C, D or E of this section, the children's court attorney may represent the state in any matter arising under the Children's Code when the state is the petitioner or complainant. The children's court attorney shall represent the petitioner in matters arising under the Children's Code when, in the discretion of the judge, the matter presents legal complexities requiring representation by the children's court attorney, whether or not the state is petitioner or complainant, but not in those matters when there is a conflict of interest between the petitioner or complainant and the state. A petitioner or complainant may be represented by counsel in any matter arising under the Children's Code.

C. In cases involving civil abuse or civil neglect and the periodic review of their dispositions, the attorney selected by and representing the department is the children's court attorney. The attorney selected by and representing the department shall provide the district attorney of the appropriate judicial district with a copy of any abuse or neglect petition filed in that judicial district. Upon the request of the district attorney, the attorney selected by and representing the department shall provide the district attorney with reports, investigations and pleadings relating to any abuse or neglect petition.

D. In cases involving families in need of court-ordered services, the periodic review of their dispositions and voluntary placements, the attorney selected by and representing the department is the children's court attorney. The attorney selected by and representing the department shall provide the district attorney of the appropriate judicial district with a copy of any family in need of court-ordered services petition filed in that judicial district. Upon the request of the district attorney, the attorney selected by and representing the department shall provide the district attorney with reports, investigations and pleadings relating to any family in need of court-ordered services petition.

E. In cases involving a child subject to the provisions of the Children's Mental Health and Developmental Disabilities Act [32A-6A-1 to 32A-6A-30 NMSA 1978] that also involves civil abuse, civil neglect or a family in need of court-ordered services, the attorney selected by and representing the department is the children's court attorney. In cases involving a child subject to the provisions of the Children's Mental Health and Developmental Disabilities Act that does not also involve civil abuse, civil neglect or a family in need of court-ordered services, the district attorney is the ex-officio children's court attorney.

F. In those counties where the children's court attorney has sufficient staff and the workload requires it, the children's court attorney may delegate children's court functions to a staff attorney.

History: 1978 Comp., § 32A-1-6, enacted by Laws 1993, ch. 77, § 15; 1995, ch. 206, § 3; 2005, ch. 189, § 2.

The 2005 amendment, effective June 17, 2005, added the phrase "court-ordered" in Subsection D.

The 1995 amendment, effective July 1, 1995, added "or E" following "D" and made minor stylistic changes in Subsections A and B; in Subsection C, substituted "with a copy of any abuse or neglect petition" for "reports, investigations and pleadings related to charges of abuse and neglect" and added the last sentence; in Subsection D, substituted the language at the end beginning "with a copy" for "reports, investigations and pleadings related to charges of abuse and neglect filed in that judicial district"; added Subsection E; and redesignated former Subsection E as Subsection F.

Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-5 NMSA 1978 have been included in the annotations to this section.

Judge's interference with children's court attorney not permitted. — A judge is without authority to direct the juvenile probation office to refrain from referring juvenile cases to the district attorney without the judge's prior written consent, or to relieve the district attorney as children's court attorney and to appoint private attorneys to act and to be compensated out of the district attorney's budget, and to do so constitutes bad faith, malicious abuse of judicial power and willful misconduct in office. In re Martinez, 1982-NMSC-115, 99 N.M. 198, 656 P.2d 861.

Attorney has authority to execute affidavit of disqualification of judge. — The power and duty of the children's court attorney to represent the state necessarily includes the authority to execute an affidavit of disqualification of a judge when the disqualification is done on behalf of the state. Smith v. Martinez, 1981-NMSC-066, 96 N.M. 440, 631 P.2d 1308.

District attorneys' pay. — The legal basis for continuing to pay district attorneys at their pre-Children's Code rate is found in N.M. Const., art. IV, § 27. 1972 Op. Att'y Gen. No. 72-45.