A. When a child of an alleged family in need of court-ordered services is taken into protective custody by the department or the department petitions the court for protective custody of the child, a custody hearing shall be held within ten days from the date the petition is filed to determine if the child should remain with the family or be placed in the custody of the department pending adjudication. Upon written request of the respondent, the hearing may be held earlier, but in no event shall the hearing be held sooner than two days after the date the petition was filed.

B. The parent, guardian or custodian of the child shall be given reasonable notice of the time and place of the hearing.

C. When the custody hearing is conducted, the court shall release the child to his parent, guardian or custodian unless probable cause exists to believe that:

(1) the child is in immediate danger from his surroundings and the child's removal from those surroundings is necessary for his safety or well-being;

(2) the child will be subject to injury by others if not placed in the protective custody of the department; or

(3) a parent, guardian or custodian of the child or any other person is unable or unwilling to provide adequate supervision and care for the child.

D. At the conclusion of the protective custody hearing, if the court determines that protective custody pending adjudication is appropriate, the court may:

(1) award custody of the child to the department; or

(2) return the child to the child's parent, guardian or custodian, subject to conditions that will reasonably assure the safety and well-being of the child.

E. In addition to any disposition made by the court pursuant to the provisions of Subsection D of this section, the court may order the child and family to participate in an assessment and referral process. Copies of any diagnostic or evaluation reports ordered by the court shall be provided to the parties at least five days before the adjudicatory hearing is scheduled. The diagnostic and evaluation reports shall not be sent to the court.

F. The Rules of Evidence shall not apply to protective custody hearings conducted pursuant to the provisions of this section.

History: 1978 Comp., § 32A-3B-7, enacted by Laws 1993, ch. 77, § 79.

Cross references. — For the applicability of the Rules of Evidence, see Rule 11-1101 NMRA.