Rule 10-315. Custody hearing.

A. Time limits. A custody hearing shall be held within ten (10) days from the date a petition is filed alleging abuse or neglect. At the custody hearing the court shall determine if the child should remain or be placed in the custody of the department pending adjudication. Upon written request of the respondent, the hearing may be held sooner, but in no event shall the hearing be held less than two (2) days after the date the petition was filed. B. Notice. The department shall give reasonable notice of the time and place of the custody hearing to the parents, guardian, or custodian of the child alleged to be abused or neglected. C. Audio recording. The court shall make an audio recording of the custody hearing and shall provide a copy of the recording immediately upon request to a party who wishes to file an appeal under Paragraph I of this rule. D. ICWA; Indian child; duty to inquire. At the commencement of the custody hearing, the court shall ask each party and participant, including the guardian ad litem and agency representative, to state on the record under oath whether the party or participant knows or has reason to know that the child is an Indian child under the Indian Child Welfare Act. An Indian child is any unmarried person who is under eighteen (18) years of age at the time the petition is filed and who is either, (1) a member of an Indian Tribe; or (2) eligible for membership in an Indian Tribe and the biological child of a member of an Indian Tribe. E. ICWA; duty to determine; reason to know. On the basis of the information and evidence provided, the court shall determine that the child is or is not an Indian child. If the evidence is insufficient to make such a determination, the court shall determine whether there is reason to know that the child is an Indian child. The court has reason to know that the child is an Indian child upon the occurrence of any of the following: (1) any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child; (2) any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child; (3) the child who is the subject of the proceeding gives the court reason to know he or she is an Indian child; (4) the court is informed that the domicile or residence of the child, the child’s parent, or the child’s Indian custodian is on a pueblo, reservation, or in an Alaska Native village; (5) the court is informed that the child is or has been a ward of a Tribal court; or (6) the court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe. F. Indian child; effect on proceedings. If the court determines that the child is an Indian child, or determines that there is reason to know the child is an Indian child but insufficient evidence to determine that the child is or is not an Indian child, the court shall do the following: (1) confirm, by way of a report, declaration, or testimony included in the record that the department or other party used due diligence to identify and work with all Tribes of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership); (2) ensure that the department promptly sends notice of the proceeding as required by the Indian Child Welfare Act and its regulations and substantially in the form approved by the Supreme Court; and (3) treat the child as an Indian child subject to the Indian Child Welfare Act unless and until it is determined on the record that the child does not meet the definition of an Indian child under applicable law. Treating the child as an Indian child includes, but is not limited to, the following: (a) permitting the temporary or emergency foster care placement to continue only if the court finds that it is necessary to prevent imminent physical damage or harm to the child; and (b) terminating the temporary or emergency foster care placement as soon as the court or agency possesses sufficient evidence to determine that the emergency removal is no longer necessary to prevent imminent physical damage or harm to the child, unless the court orders a foster care placement in accordance with the standard of proof and time limits mandated by the Indian Child Welfare Act and its regulations. G. Not an Indian child; effect on proceedings; continuing duty to disclose. If the court determines that the child is not an Indian child, or that there is no reason to know that the child is an Indian child, the court shall do the following: (1) proceed as though the child is not subject to the Indian Child Welfare Act; and (2) order the parties and participants at the hearing to inform the court if they subsequently receive information that provides reason to know that the child is an Indian child. If the court finds, on the basis of information or evidence presented at a later hearing, that there is reason to know the child is an Indian child, the court shall proceed as required under Paragraph E of this rule. H. Form of order. The decision of the court shall be made by a written order that shall be filed with the clerk of the court at the earliest practicable time. I. Appeal. An order filed under this rule that grants legal custody of a child to, or withholds legal custody from, one or more parties may be appealed as provided by Section 32A-4-18 NMSA 1978. An appeal from such an order shall proceed as an expedited appeal under Rule 12-206A NMRA of the Rules of Appellate Procedure.