A. At any stage of a proceeding under the Abuse and Neglect Act, the court shall have the power and authority to issue orders to compel the appearance of witnesses, the giving of testimony and production of evidence by witnesses, including any party. Production of evidence includes an order to a respondent to undergo a psychological diagnostic evaluation and treatment.

B. Failure or refusal to obey the court's order may be punished by the court as contempt. A claim that giving testimony or producing evidence might tend to incriminate the person who is the subject of the order shall not excuse the person from complying with the court's order.

C. The children's court attorney shall make application to the court to compel compliance with the orders of the court.

History: 1978 Comp., § 32A-4-13, enacted by Laws 1993, ch. 77, § 107.

Contempt power in New Mexico. — Courts have inherent power and statutory authority to impose remedial or punitive sanctions for contempt of court. Contempts of court can be civil or criminal, and the major factor in determining how to classify a particular contempt is the purpose for which the power is exercised. Criminal contempt proceedings are instituted to punish completed acts of disobedience that have threatened the authority and dignity of the court. Civil contempt is remedial in nature and serves to preserve and enforce the rights of private parties to suits and to compel obedience to the orders of the court. State v. ex rel. CYFD v. Mercer-Smith, 2019-NMSC-005, rev'g 2015-NMCA-093, 356 P.3d 26.

Courts must exercise contempt power consistent with the purposes of civil or criminal contempt. — Consistent with the various purposes for which a court may exercise its contempt power, a court may impose punitive sanctions for criminal contempt, remedial sanctions for civil contempt, or both. The court may not, however, impose penalties on a person who has not been afforded the protections of the criminal law. State v. ex rel. CYFD v. Mercer-Smith, 2019-NMSC-005, rev'g 2015-NMCA-093, 356 P.3d 26.

District court did not exercise its contempt power consistent with purpose of civil contempt. — In a civil contempt proceeding, where the district court found the children, youth and families department (CYFD) in contempt of court for attempting to circumvent the court's order in placing two children that had been adjudicated to be abused, the acts of which effectively eliminated the likelihood of reconciliation between the children and their parents, the district court's order holding CYFD in contempt for violating the placement decision and imposing compensatory damages and costs was an abuse of discretion, because the district court had previously found that CYFD had no duty to support reconciliation and the court had refused the parents' proposed finding that the placements might undermine future prospects for reconciliation between the children and their parents. Because efforts toward reunification and reconciliation were no longer being required by the district court, and were therefore not a goal of any treatment plan, the purpose for which the district court exercised its contempt power was not remedial in nature and therefore cannot be upheld as a valid exercise of civil contempt power. State v. ex rel. CYFD v. Mercer-Smith, 2019-NMSC-005, rev'g 2015-NMCA-093, 356 P.3d 26.

District courts have inherent power to sanction for contempt. — The district court has inherent power to sanction for contempt. The contempt power is necessary to allow courts to regulate their docket, promote judicial efficiency, and deter frivolous filings, and it has long been recognized that a court must be able to command the obedience of litigants and their attorneys if it is to perform its judicial functions. State ex rel. Children, Youth & Families Dep't. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008.

The district court properly invoked its inherent power to sanction for contempt where the children, youth and families department (CYFD), in an abuse and neglect case involving foster placement of children, engaged in activity and took direct actions that were in contempt of the district court's placement order and where parents suffered injuries caused by CYFD's contemptuous conduct, including past and future emotional distress, loss of enjoyment of life, and psychological expenses. State ex rel. Children, Youth & Families Dep't. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008.

Civil contempt distinguished from criminal contempt. — Contempts procedurally are either civil or criminal in nature. Where the primary purpose is to preserve the court's authority and to punish for disobedience of its orders, the contempt is criminal. Where the primary purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil. The elements necessary for a finding of civil contempt are (1) knowledge of the court's order, and (2) an ability to comply. Intent is not an essential element of contempt, but because knowledge of the district court's order is a prerequisite to contempt, the district court's order must not be ambiguous. State ex rel. Children, Youth & Families Dep't. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008.

Sufficient evidence to support court's finding of contemptuous conduct. — Where the children, youth and families department (CYFD) defied a placement order issued by the district court in an abuse and neglect case involving foster placement of two children (children) in the custody of CYFD, the evidence was sufficient to support the district court's findings that CYFD engaged in activity and took direct actions that were in contempt of the placement order where evidence was presented that the placement order prohibited CYFD from placing children with their former counselors from a group home where the children were receiving treatment, because the district court was concerned that placement of the children with their former counselors created dual relationships that are forbidden by the code of ethics for counselors and therapists due to the risk of the therapists confusing their roles in children's lives, that the limitations in the placement order issued by the district court were understood by CYFD, that CYFD nevertheless arranged for children to spend the majority of their waking hours either in school or with the former counselors, and that the amount of contact between the children and the former counselors was tantamount to placement in the counselors' homes, thus violating the placement order. State ex rel. Children, Youth & Families Dep't. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008.

Damages for civil contempt. — Compensatory damages for civil contempt serve to make reparation to the injured party and restore the parties to the position they would have held had the court's order been obeyed. The district court does not have discretion to deny compensatory damages if established with reasonable certainty. State ex rel. Children, Youth & Families Dep't. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008.

Where district court found that the parents of two children in the custody of the children, youth and families department satisfied their burden of proving a violation of a court order, proximate cause, and damages, the parents were entitled to judgment for recovery of those damages. State ex rel. Children, Youth & Families Dep't. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008.

Sufficient evidence to support district court's award of damages for civil contempt. — Where the children, youth and families department (CYFD) defied a placement order issued by the district court in an abuse and neglect case involving foster placement of two children (children) in the custody of CYFD, the evidence was sufficient to support the district court's award of damages to compensate children's parents for damage done to their chances of reconciliation with their daughters, where the evidence established that reconciliation between the children and parents was a goal and that that there were viable prospects for reconciliation prior to the placement order, that an expert in psychology submitted a letter to the district court prior to the placement hearing, and later admitted at the damages hearing, stating that any possibility of future reconciliation with the children and their parents would be significantly lessened if they were to reside with the children's former counselors, that CYFD nevertheless arranged for children to spend the majority of their waking hours either in school or with the former counselors, an amount of contact that was tantamount to placement in the counselors' homes, and that the parents of children suffered injuries and other harms caused by CYFD's contemptuous conduct, including past and future emotional distress, loss of enjoyment of life and psychological expenses. State ex rel. Children, Youth & Families Dep't. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008.