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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO

 3          Plaintiff-Appellee,

 4 v.                                                                                     NO. 32,768

 5 ERIC G.,

 6          Child-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
 8 Drew D. Tatum, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Acting Chief Public Defender
13 Allison H. Jaramillo, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 WECHSLER, Judge.
 1   {1}   Child appeals from the district court’s order extending Child’s commitment to

 2 the Youth Diagnostic and Development Center (YDDC) by four months. We issued

 3 a notice of proposed summary disposition, proposing to affirm. Child has responded

 4 to our notice with a memorandum in opposition. We affirm the district court’s order.

 5   {2}   On appeal, Child argues that the district court erred by (1) denying his motion

 6 in limine and thereby admitting hearsay and second-hand testimony about the

 7 disciplinary incident reports, and (2) improperly ruling that Child’s confrontation

 8 rights do not apply at the hearing on the petition to extend commitment. [DS 4; MIO

 9 4-11] As we stated in our notice, at the heart of Child’s first argument is the premise

10 that the Rules of Evidence apply to the hearing on the petition to extend commitment.

11 We are not persuaded that the Rules of Evidence apply to such hearings. Nor are we

12 persuaded that Child’s due process and confrontation rights were violated.

13 Rules of Evidence

14   {3}   The statute governing the commitment extension in the current case is found in

15 NMSA 1978, Section 32A-2-23(D) (2009), which states that “[p]rior to the expiration

16 of a short-term commitment of one year, as provided for in NMSA 1978, Section

17 32A-2-19 (2009), the court may extend the judgment for up to one six-month period

18 if the court finds that the extension is necessary to safeguard the welfare of the child

19 or the public safety.” Section 32A-2-23(D) and Section 32A-2-19 are dispositional

                                              2
 1 provisions for adjudicated delinquent offenders, and the dispositional hearings held

 2 thereunder are “what, in adult court, would be the sentencing phase.” State v. Erickson

 3 K., 2002-NMCA-058, ¶ 14, 132 N.M. 258, 46 P.3d 1258; see also State v. Sergio B.,

 4 2002-NMCA-070, ¶ 19, 132 N.M. 375, 48 P.3d 764 (“Recommitment hearings are

 5 essentially dispositional.”).

 6   {4}   Child acknowledges that former Rule 11-1101(D)(2) NMRA 2009 specifically

 7 stated that the Rules of Evidence do not apply to “dispositional hearings in children’s

 8 court proceedings.” Child further acknowledges that the committee commentary to

 9 Rule 11-1101 NMRA 2013 states that the rule was amended in 2012 for clarity and

10 made only stylistic changes in order to be more consistent with the federal rule and

11 the other evidence rules. See Committee Commentary to Rule 11-1101 (stating that

12 with the amendment “[t]here is no intent to change any result in any ruling on

13 admissibility”). Despite these acknowledgments, Child nevertheless argues that the

14 2012 changes to the rule are significant because they removed the language indicating

15 that the Rules of Evidence do not apply to “dispositional hearings in children’s court

16 cases” and replaced it with language indicating that the Rules of Evidence do not

17 apply to “dispositional hearings . . . in abuse and neglect proceedings.” [MIO 5] The

18 committee commentary to the rule declares that the changes are not significant. We

19 therefore do not believe that our Supreme Court intended for changes to require that


                                              3
 1 the Rules of Evidence apply to the dispositional hearing in this children’s court case.

 2 See Erickson K., 2002-NMCA-058, ¶¶ 14-15 (distinguishing between juvenile

 3 probation revocation proceedings in which the Rules of Evidence apply and

 4 dispositional hearings in children’s court, for which the Rules of Evidence do not

 5 apply).

 6   {5}   Child also argues that recommitment hearings are more than simply

 7 dispositional, and therefore, our holding in Sergio B., 2002-NMCA-070, is erroneous.

 8 Child contends that because the children’s court can only extend a child’s

 9 commitment based on a review of new evidence in the record of the child’s progress

10 during the term of commitment, the recommitment hearing is more akin to a probation

11 violation hearing than a dispositional hearing. [MIO 7] We are not persuaded. In

12 Sergio B., this Court rejected the contention that standards used for adjudications of

13 delinquency should apply to recommitment proceedings, noting that we also rejected

14 this argument in the context of similar proceedings to determine whether a child is

15 amenable to treatment within the juvenile system. See id. ¶ 19.            This Court

16 emphasized that “the findings necessary to determine whether a recommitment is

17 necessary to protect the child or public welfare requires consideration of the child’s

18 environment, age, maturity, past behavior, and predictions of future behavior,”

19 determinations that do not lend themselves to adjudication standards such as proof


                                              4
 1 beyond a reasonable doubt. Id. (internal quotation marks and citation omitted). Based

 2 on the same rationale, we are not persuaded that the Rules of Evidence should apply

 3 to the information that is relevant to, and necessary for, a recommitment

 4 determination. Also, determining whether recommitment is appropriate for the

 5 protection of the child or public welfare based on the “child’s environment, age,

 6 maturity, past behavior, and predictions of future behavior” is less like assessing the

 7 truth of a violation of law and more like the sentencing process of assessing

 8 rehabilitation needs.      See Erickson K., 2002-NMCA-058, ¶ 14 (describing

 9 “dispositional hearings in children’s court proceedings, . . . [as] what, in adult court,

10 would be the sentencing phase”); State v. Gonzales, (listing the same considerations

11 for a child’s amenability to treatment within the juvenile system, rejecting an

12 argument under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.

13 2d 435 (2000), and holding that “[u]nlike the finding that a child has committed a

14 criminal offense, the finding that a child is not amenable to treatment as a child within

15 the juvenile system requires a predictive, more than historical, analysis”).

16   {6}   Additionally, the governing statutory provision entitled “Limitations on

17 dispositional judgments; modification; termination or extension of court orders,”

18 indicates that an extension of either a long- or short-term commitment is contemplated

19 as part of a child’s dispositional judgment, but is not mandatory like the ninety-day


                                               5
 1 supervised release. See Section 32A-2-23(D), (E), and (F). For these reasons, we hold

 2 that the recommitment hearing is dispositional and that the Rules of Evidence do not

 3 apply.

 4 Due Process and Confrontation

 5   {7}    Child argues that the district court violated his right to due process and

 6 confrontation by relying on disciplinary reports admitted through the testimony of

 7 YDDC workers who did not witness the conduct that was reflected in the report for

 8 the recommitment hearing. [MIO 8-11] As explained above and in our notice, the

 9 extended commitment hearings are not adjudicatory; they track a child’s progress and

10 possible need for further rehabilitation “to safeguard the welfare of the child or the

11 public safety.” Section 32A-2-23(D). Only “[n]otice and hearing are required for any

12 extension of a juvenile’s commitment.” Id.

13   {8}    Our notice proposed to hold that, contrary to Child’s assertion, there is no

14 indication that confrontation rights exist at recommitment hearings and that we would

15 assume that due process rights apply, like to those afforded at adult probation

16 violation hearings. “[D]ue process is flexible and calls for such procedural protections

17 as the particular situation demands and not all situations calling for procedural

18 safeguards call for the same kind of procedure.” State v. Guthrie, 2011-NMSC-014,

19 ¶ 11, 150 N.M. 84, 257 P.3d 904 (internal quotation marks, citation, and emphasis


                                              6
 1 omitted). In determining whether the right to due process should include the right to

 2 confrontation, “[t]he trial court should focus its analysis on the relative need for

 3 confrontation to protect the truth-finding process and the substantial reliability of the

 4 evidence.” Id. ¶ 43.

 5   {9}    Our notice observed that Child did not describe the offending testimony or why

 6 it might have violated his constitutional rights. Child has the obligation on appeal to

 7 set forth all the facts necessary to decide an appellate issue. See Rule 12-208(D)(3)

 8 NMRA; Thornton v. Gamble, 1984-NMCA-093, ¶ 18, 101 N.M. 764, 688 P.2d 1268

 9 (construing the then-applicable appellate rule to include the evidence that “supports

10 the trial court’s findings” and warning that the failure to comply with rules may result

11 in sanctions). We further observed that the individuals employed by YDDC who

12 testified at the hearing had personal knowledge of Child’s progress and testified about

13 their knowledge in addition to the incident reports. [RP 53-58] Further, we noted that

14 the record indicated that Child admitted to the facts in all fourteen incident reports.

15 [RP 55] We stated that the record does not show, and Child does not demonstrate,

16 what would be gained for purposes of truth-finding and reliability from the testimony

17 of other employees from YDDC. See Guthrie, 2011-NMSC-014, ¶¶ 45-47.

18   {10}   In his response to our notice, Child states that, even if the Rules of Evidence do

19 not apply to a recommitment hearing, Child is entitled to the protections of minimal


                                                7
 1 due process and confrontation, which were rights violated by the district court’s

 2 consideration of the fourteen disciplinary reports in the absence of testimony from

 3 YDDC employees present during the incidents. [MIO 8-10] Child explains that the

 4 three YDDC employees who testified witnessed only a few of the incidents for which

 5 there were disciplinary reports, but that Ms. Caldwell testified that Child received

 6 fourteen disciplinary reports and created an additional report using such information

 7 concerning Child’s progress. [MIO 2-3] Ms. Caldwell further stated that Child

 8 “agreed” to all fourteen of the incident reports. [MIO 2] All three YDDC witnesses

 9 testified that Child was demonstrating improvement in the month prior to the

10 recommitment hearing. [MIO 2-3] Two YDDC witnesses testified that they had direct

11 contact with Child, one of whom stated that he interacted with Child five days of the

12 week. [MIO 3] It appears that the witnesses agreed that Child needed an extension to

13 build on the skills he was developing during that past month. [MIO 2-3]

14   {11}   Child argues that he should have been entitled to confront all the YDDC

15 employees who were present at the other events that resulted disciplinary reports,

16 because it would help the district court decide whether a violation was technical or

17 something more serious. [MIO 10] Child does not explain the content of the

18 disciplinary reports or demonstrate that confronting the other YDDC employees

19 would have resulted in a different, more preferable result. As we indicated above,


                                             8
 1 recommitment proceedings involve inquiries about the protection of the child or

 2 public welfare based on the “child’s environment, age, maturity, past behavior, and

 3 predictions of future behavior.” Sergio B., 2002-NMCA-070, ¶ 19 (internal quotation

 4 marks and citation omitted). As this Court has indicated, these are considerations

 5 beyond the truth of an alleged infraction. Id. Given the first-hand knowledge of

 6 Child’s progress exhibited by the testifying YDDC witnesses, the consistency and

 7 subject matter of their testimony, and the purpose of the hearing, Child has not

 8 demonstrated that there was a violation of his due process and confrontation rights.

 9   {12}   For the reasons stated in this opinion and in our notice, we affirm the district

10 court’s order extending Child’s commitment by four months.

11   {13}   IT IS SO ORDERED.


12                                                  ________________________________
13                                                  JAMES J. WECHSLER, Judge


14 WE CONCUR:


15 ________________________________
16 MICHAEL D. BUSTAMANTE, Judge


17 ________________________________
18 LINDA M. VANZI, Judge



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