Rule 10-262. Sealing of records under Section 32A-2-26 NMSA 1978.

A. Scope. This rule governs the sealing of records and files as authorized by Section 32A-2-26 NMSA 1978. B. Definitions. For purposes of this rule the following definitions apply: (1) “files and records” includes but is not limited to legal and social files and records of the court as well as the files and records of probation services and any other agency including law enforcement agencies unless otherwise ordered by the court; (2) “public” means any person or entity, except the parties to the proceeding, counsel of record and their employees, and court personnel; (3) “public access” means the inspection and copying by the public of records and files in the possession of the court or other government entities; and (4) “seal,” “seals,” “sealed,” or “sealing” means prohibiting public access to files and records concerning a person who is the subject of a delinquency proceeding as required by this rule. C. Sealing upon motion. Upon motion, the court may seal the files and records concerning a person who is the subject of the delinquency proceeding if the court finds the following: (1) the person is eighteen (18) years of age or older, has been released from court-ordered supervision, or custody of the Children, Youth and Families Department (the department), and is no longer subject to any pending delinquency proceeding or any other order not involving legal custody and supervision; or (2) the person is under eighteen (18) years of age and the following conditions are established: (a) good cause exists to seal the files and records before the person is eighteen (18) years of age; (b) two (2) years or more have elapsed since (i) the final release of the person from legal custody and supervision; or (ii) the entry of any other judgment not involving legal custody and supervision; and (c) for the two (2) years immediately before the filing of the motion the person does not have, and is not subject to a court proceeding seeking, (i) a conviction for a felony (ii) a conviction for a misdemeanor involving moral turpitude; or (iii) a finding of delinquency. D. No adjudication of delinquency; sealing requirements. (1) Before an adjudicatory hearing in a delinquency proceeding, remote electronic access to the files and records concerning a person who is the subject of the delinquency proceeding shall be limited to the judge and court personnel, provided that access to such records and files is provided at the courthouse to the parties to the proceeding and to the public unless the court orders otherwise. (2) When a petition for delinquency has been filed that does not result in an adjudication of delinquency, the children’s court attorney shall, upon conclusion of the case, present the court with a proposed order sealing the files and records in the case, in a form prescribed by the Supreme Court. Upon entry of the order by the court, all court files and records shall be sealed in the delinquency proceeding and the order shall direct the department and all other agencies to seal all files and records related to the delinquency proceeding in their possession. E. Sealing requirements for persons eighteen (18) years of age or older. (1) When a person has been released from the court ordered supervision or custody of the Children, Youth and Families Department (the department), is no longer subject to any pending delinquency proceeding or any other order not involving legal custody and supervision, and has reached the age of eighteen (18), the department shall seal the person’s delinquency files and records in its possession. The department also shall notify the Administrative Office of the Courts by including a list of the agencies, including law enforcement agencies, contacted and shall provide the complete children’s court docket number used for the delinquency proceeding. (2) Upon receipt of the department’s notification of sealing, the Administrative Office of the Courts shall notify the children’s court that it will seal the person’s electronic court files and records for the delinquency proceeding unless the children’s court orders otherwise in writing within thirty (30) days of receiving the notice. The court shall provide a copy of the order to the parties and the department. (3) Upon receipt of notice from the Administrative Office of the Courts, unless the children’s court determines that the notice was in error and orders otherwise, the children’s court shall seal all paper court files and records from the delinquency proceeding that are in its possession and shall issue an order directing any other agencies who were involved in the delinquency proceeding to seal all files and records in their possession concerning the person who was the subject of the delinquency proceeding. (4) The children’s court shall provide the department’s public records custodian with a copy of the sealing order, who shall be responsible for serving a copy of the order on all of the persons and entities listed in Paragraph F of this rule. F. Copies of order to seal. The clerk of the court shall deliver or mail copies of any sealing order to the department’s public records custodian, who shall then serve copies to the following: (1) the children’s court attorney; (2) the law enforcement agency and central depository having custody of the law enforcement files and records related to the delinquency proceeding; (3) any other agency having custody of records or files related to the delinquency proceeding subject to the sealing order; (4) counsel of record at the time of disposition; and (5) the person who is the subject of the sealing order, at that person’s last known mailing address. G. Effect of sealing order. (1) Upon receipt of a sealing order, the recipient shall immediately seal all files and records in the possession of the person or agency related to any delinquency proceedings referenced in the order. (2) To effectuate the requirements of Subsection C of Section 32A-2-26 NMSA 1978 that all sealed delinquency proceedings be treated as if they never occurred, (a) the court’s sealing order shall have the effect of vacating the findings, orders, and judgments and deleting all index references in the delinquency proceeding; (b) the court, the department, and other persons and agencies to whom the order is delivered shall reply to any inquiry that no record of any delinquency proceeding exists with respect to the person who is the subject of the sealing order; and (c) the person who is the subject of a sealing order in a delinquency proceeding may reply to any inquiry that no record exists. (3) A sealing order entered under this rule does not prohibit the department from storing and using a person’s delinquency records and files for research and reporting purposes as permitted, subject to the confidentiality provisions of Section 32A- 2-32 NMSA 1978 and any other applicable state or federal laws. No other use of delinquency records and files sealed under this rule is permitted unless unsealed by order of the court in accordance with Section 32A-2-26 NMSA or other applicable state or federal laws. Committee commentary on 2011 rule. — The Committee recognizes an apparent conflict within the statute. While Subsection 32A-2-26(C) NMSA 1978 mandates that all index references to the delinquency matter be deleted, Subsection 32A-2-26(I) NMSA 1978 provides for limited access to the files. Section 32A-2-26 NMSA 1978 authorizes the Children’s Court to enter an order sealing the legal and social files and records of the court as well as the files and records of probation services and any other agency including law enforcement agencies. This rule addresses the procedure for sealing the court files and records. The Children, Youth and Families Department, law enforcement agencies, and other agencies that deal with children in delinquency cases must adopt their own regulations, policies and procedures for complying with sealing orders issued pursuant to Section 32A-2-26 NMSA 1978. The committee strongly encourages them to do so. The procedures to be followed by an executive department or agency are beyond the scope of a children’s court rule of procedure. The revisions to Paragraph E of the rule are based on the 2009 amendment to Subsection G of Section 32A-2-26 NMSA 1978, Sealing of Records, which changed the requirements for automatic sealing of delinquency records. Automatic sealing of records for a child adjudicated delinquent now occurs only after the child reaches the age of eighteen, has been released from the court ordered supervision or custody of the Children, Youth and Families Department, and is no longer subject to any pending delinquency proceeding or any other order not involving legal custody and supervision. The former sealing statute allowed for sealing of records before a child turned eighteen; however, the former statute also required a two-year “waiting period,” wherein the child had not received new allegations of delinquency. There is no longer a two-year waiting period for automatic sealing. Paragraph E requires that in order to seal an individual’s case file, the court must have access to the complete court case number. Without the complete case number, the court cannot be sure that it is in fact sealing the correct case file. A complete court case number includes five distinct identifiers. First, every district court case number begins with the letter “D.” Second, the letter “D” is followed by the specific court location number. The district court location number is not the same as the judicial district number. For example, although Roswell and Carlsbad district courts are both in the Fifth Judicial District, Roswell’s location number is 504 and Carlsbad’s location number is 503. Third, a complete case number includes the case type. The case type for delinquency cases is “JR.” The fourth identifier is the year. Finally, the year is followed by a series of numbers that are sequentially generated from the Judiciary’s case management system when a case file is opened. An example of a complete children’s court case number is D-504-JR-2009-273. Committee commentary on 2007 rule. — This rule is based on the 2003 statutory amendments to Section 32A-2-26 NMSA 1978, Subsections G and H. These subsections provide for automatic sealing of court records for a person who is not the subject of a delinquency petition; for a person who is determined by the court not to be a delinquent offender; or for a person who has been released from legal custody and supervision and for whom no new allegations of delinquency have been received in the past two years. This rule is intended to specify the mechanism for automatic sealing, as the statute does not state how it is to be accomplished, and to provide guidance to the Children, Youth and Families Department (department) and the courts in its implementation. The rule is not intended to govern or comment on sealing by motion under Subsection A of Section 32A-2-26 NMSA 1978. Note that the rule does not address the first part of Subsection G of Section 32A-2-26 NMSA 1978, which provides that a person who is not the subject of a delinquency petition shall have his or her files automatically sealed. The fact that a delinquency petition was not filed means that the matter was handled informally by probation services. The committee believes this is a matter best left to the department, which administers probation services. The committee strongly encourages the department to develop a mechanism for sealing under these circumstances, as these children’s records otherwise will remain unsealed while children for whom a petition has been filed are protected by the rule. With regard to Paragraph A of the rule, there are a variety of circumstances under which a petition for delinquency is filed but does not result in an adjudication of delinquency. Such circumstances may include, but are not limited to, dismissal by the state, a satisfaction of time waiver, completion of the terms of a consent decree, an acquittal or other form of dismissal, or a ruling on appeal that concludes the case without an adjudication of delinquency. Not all courts enter formal orders of dismissal or make formal determinations that the child is not delinquent; the rule is broadly stated to accommodate different practices around the state. This approach is consistent with Rule 10-145 NMRA, which provides, with limited exceptions, that a dismissal “operates as an adjudication upon the merits.” With regard to Paragraph B of the rule, the committee recommended use of the phrase “court-ordered supervision of the department” instead of the statutory phrase “custody and supervision of the department” to make it clear that a child given probation alone is as entitled to sealing as a child placed in the department’s custody. Comments received during the public comment period suggested that this required clarification. It is the committee’s intent that the term “files and records” include all forms of such documents, including but not limited to electronic and paper versions. Finally, the committee encourages all recipients of any sealing order under this rule to ensure that the order is given to the proper person responsible for sealing within the recipient’s agency. The rule attempts to delineate the responsible persons to the degree possible, but ultimately implementation of this rule and its underlying statute rests with the recipient individuals and agencies. Because this rule does not change current law, which has been in effect since July 1, 2003, this rule applies to all cases either pending or filed on or after the effective date of the statute and to those cases that were closed but not yet eligible for sealing before that date. Those persons who were eligible to move for sealing of their records before the amended statute became effective are not covered by this rule, but they may still file a motion to have their records sealed.