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

 2 Opinion Number: ________________

     Filing Date: September 26, 2018

 3 No. A-1-CA-36241

 4 STATE OF NEW MEXICO,

 5         Plaintiff-Appellee,

 6 v.

 7 ANTHONY L.,

 8         Child-Appellant.

 9 APPEAL FROM THE DISTRICT OF BERNALILLO COUNTY
10 William E. Parnall, District Judge

11 Hector H. Balderas, Attorney General
12 Maha Khoury, Assistant Attorney General
13 Santa Fe, NM

14 for Appellee

15 Bennett J. Baur, Chief Public Defender
16 J.K. Theodosia Johnson, Assistant Appellate Defender
17 Santa Fe, NM

18 for Appellant
 1                                      OPINION

 2 ZAMORA, Judge.

 3   {1}   Child appeals the district court’s order granting the State’s motion for

 4 extension to commence Child’s adjudication and his commission of the delinquent

 5 act of driving without a valid driver’s license. Child contends that: (1) the district

 6 court erred by extending the time to commence Child’s adjudication; and (2) there

 7 was insufficient evidence to support the jury’s verdict that he committed the

 8 delinquent act of driving without a valid driver’s license. We affirm.

 9 BACKGROUND

10   {2}   On September 6, 2016, a delinquency petition was filed alleging that on

11 September 3, 2016, Child had committed the delinquent acts of: (1) leaving the

12 scene of an accident (property damage), contrary to NMSA 1978, Section 66-7-202

13 (1978); (2) driving without a valid driver’s license, contrary to NMSA 1978,

14 Section 66-5-2 (2013); and (3) tampering with evidence (third or fourth degree

15 felony), contrary to NMSA 1978, Section 30-22-5 (2003). Child was arrested and

16 held in detention until September 7, 2016, when he was conditionally released to

17 New Day Shelter. Child was arrested on October 7, 2016, for violating his

18 conditions of release and held in detention. On October 12, 2016, a notice was

19 issued setting a pretrial conference for October 31, 2016.
 1   {3}   On the day of the pretrial conference, the State filed a motion to extend the

 2 time limit for the adjudicatory hearing in which it noted that: the matter had been

 3 set for an adjudicatory hearing on October 31, 2016; the time limit to commence

 4 the adjudicatory hearing was November 7, 2016; and a continuance was necessary

 5 in anticipation of a pending community service agency (CSA) assessment and

 6 identification of a possible out-of-home placement for Child. At the hearing,

 7 Child’s attorney opposed the motion, although the district court had stated at the

 8 last hearing it would grant an extension and set the adjudication for December. The

 9 State noted that the motion was opposed, but left the certification date for

10 providing opposing counsel with a copy of the motion blank. Also on the same

11 date, the district court’s order of continuance of the pretrial conference was filed

12 and reset for November 21, 2016. Opposition to the motion by Child’s attorney

13 was noted on that order. The district court order granted the State’s motion for

14 extension extending the date to commence the adjudication to December 13, 2016,

15 and a notice of jury trial was issued.

16   {4}   On November 3, 2016, a hearing was held before a special master to address

17 conditions of release and placement options for Child. Child’s counsel informed

18 the special master that Open Skies, a CSA, had assessed Child on October 26,

19 2016, and Amistad Shelter had informed her the day before that they had an




                                             2
 1 opening. Child’s counsel also suggested that Child did not need to stay in detention

 2 waiting for the Open Skies assessment; however, the Child remained in detention.

 3   {5}   On November 21, 2016, Child was conditionally released to Amistad

 4 Shelter. On November 23, 2016, Child filed an objection to the extension and

 5 request for reconsideration, reversal and dismissal. At a hearing on December 12,

 6 2016, the district court stated that the good cause for extending the time line was

 7 because of the district court’s busy docket.

 8   {6}   After a jury trial, Child was found to have committed the delinquent acts of

 9 leaving the scene of an accident and driving without a valid driver’s license. A

10 mistrial was declared on the delinquent act of tampering with evidence. The

11 judgment and disposition, for an extended consent decree, was filed on January 23,

12 2017. Child was placed on probation, under an extended consent decree, for a

13 period not to exceed one year, or through January 22, 2018.1

14 District Court Did Not Abuse Its Discretion in Granting an Extension to
15 Commence Child’s Adjudication.

16   {7}   The granting of a continuance rests within the sound discretion of the district

17 court. In re Doe, 1975-NMCA-108, ¶ 8, 88 N.M. 347, 540 P.2d 827. The standard

18 of review for a motion to continue is abuse of discretion. Id. An abuse of discretion

19 occurs when the ruling is “clearly untenable or not justified by reason.” State v.

           1
             In the meantime, Child violated his probation agreement and has since
     entered into another probation agreement for a period of up to one year, which will
     expire on April 29, 2019.
                                             3
 1 Candelaria, 2008-NMCA-120, ¶ 12, 144 N.M. 797, 192 P.3d 792 (internal

 2 quotation marks and citation omitted). There is no abuse of discretion when there

 3 are reasons that both support and detract from a trial court’s decision. State v.

 4 Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185 P.3d 363. Our review looks

 5 at the evidence and its inference in the light most favorable to the district court’s

 6 decision. Candelaria, 2008-NMCA-120, ¶ 12.

 7   {8}   Appellate courts review interpretations of our Supreme Court rules de novo,

 8 State v. Stephen F., 2006-NMSC-030, ¶ 7, 140 N.M. 24, 139 P.3d 184, as well as

 9 “the district court’s application of the law to the facts of [the] case.” State v.

10 Foster, 2003-NMCA-099, ¶ 6, 134 N.M. 224, 75 P.3d 824. Appellate courts apply

11 the same rules of construction to procedural rules adopted by our Supreme Court as

12 it does to statutes. Walker v. Walton, 2003-NMSC-014, ¶ 8, 133 N.M. 766, 70 P.3d

13 756. We therefore “look first to the plain meaning of the rule” and “refrain from

14 further interpretation when the language is clear and unambiguous.” State v.

15 Gutierrez, 2006-NMCA-090, ¶ 7, 140 N.M. 157, 140 P.3d 1106 (alteration,

16 internal quotation marks, and citation omitted). Neither party argues that Rule 10-

17 243 NMRA is ambiguous in the context of the timeliness of the commencement of

18 Child’s adjudication, we therefore apply its plain meaning.

19   {9}   Child argues there was no good cause to extend the adjudicatory time limits,

20 where the State did not explain why it could not try Child within the requisite thirty

                                             4
 1 days. Rather, the State relied on the Child’s placement in detention as a basis for

 2 the extension request by depending on an outstanding CSA assessment in

 3 anticipation of identifying an out-of-home placement for Child in order to be

 4 conditionally released from detention. The State contends that because Child’s

 5 parents did not want him in their home, Child’s placement fell to the district court,

 6 therefore there was good cause to extend the time limits in order to determine an

 7 appropriate placement for Child, based on the CSA’s assessment and

 8 recommendations.

 9   {10}   The Children’s Code explicitly mandates that Rule 10-243 governs the time

10 limits for the commencement of an adjudicatory hearing. See NMSA, § 32A-2-15

11 (1993) (“The adjudicatory hearing in a delinquency proceeding shall be held in

12 accordance with the time limits set forth in the Children’s Court Rules[.]”). Rule

13 10-243 sets forth the time limits for the commencement of an adjudicatory hearing

14 for both children in detention and those children not in detention.

15          Rule 10-243(A) states, in pertinent part:

16                A.    If the child is in detention, the adjudicatory hearing shall
17          be commenced within thirty (30) days from whichever of the
18          following events occurs latest:

19                       (1)   the date the petition is served on the child;

20                       (2)   the date the child is placed in detention[.]

21                ....

                                               5
 1                 B.     If the child is not in detention, or has been released from
 2          detention prior to the expiration of the time limits set forth in this rule
 3          for a child in detention, the adjudicatory hearing shall be commenced
 4          within one-hundred twenty (120) days from . . . :

 5                       (1)    the date the petition is served on the child[.]

 6 For purposes of calculating the time limits for a child in detention, Child and the

 7 State are both relying on the date Child was placed in detention, the second time,

 8 October 7, 2016. Thus, the time limit for the commencement of the adjudicatory

 9 hearing was November 7, 2016.

10   {11}   Rule 10-243(D) states: “For good cause shown, the time for commencement

11 of an adjudicatory hearing may be extended by the [district] court, provided that

12 the aggregate of all extensions granted by the [district] court shall not exceed

13 ninety . . . days[.]” (Emphasis added.) The procedure for extensions of time is set

14 out in Rule 10-243(E):

15                The party seeking an extension of time shall file . . . a motion
16          for extension concisely stating the facts that support an extension of
17          time to commence the adjudicatory hearing. The motion shall be filed
18          within the applicable time limit prescribed by this rule[.] A party
19          seeking an extension of time shall forthwith serve a copy thereof on
20          opposing counsel. Within five . . . days after service of the motion,
21          opposing counsel may file an objection to the extension setting forth
22          the reasons for such objection. . . . If the [district] court grants an
23          extension beyond the applicable time limit, it shall set the date upon
24          which the adjudicatory hearing must commence.

25   {12}   Two purposes of the Children’s Code, NMSA 1978, §§ 32A-1-1 to -25-5

26 (1993, as amended through 2018), are pertinent to this case: (1) “to provide for the

                                                6
 1 care, protection and wholesome mental and physical development of children . . .

 2 [and a] child’s health and safety shall be the paramount concern[]”; and, (2) “to

 3 provide judicial and other procedures through which the provisions of the

 4 Children’s Code are executed and enforced and in which the parties are assured a

 5 fair hearing and their constitutional and other legal rights are recognized and

 6 enforced[.]” Section 32A-1-3(A), (B). One of the purposes of the Delinquency Act,

 7 Sections 32A-2-1 to -33, contained within the Children’s Code, is to “encourage

 8 efficient processing of cases[.]” § 32A-2-2(G).

 9   {13}   This Court has also recognized a constitutional policy reason for the shorter

10 time limits where a child is in detention–—the shorter time limit for a juvenile in

11 detention protects the child’s liberty interest. State v. Anthony M., 1998-NMCA-

12 065, ¶ 9, 125 N.M. 149, 958 P.2d 107. The policy behind this protection is because

13 the state has yet to prove the allegations against the child. Id.; see In re Dominick

14 Q., 1992-NMCA-002, ¶ 8, 113 N.M. 353, 826 P.2d 574 (noting that required

15 expedited proceedings for a child in detention “demonstrate[s] a concern by the

16 rulemakers that a child should not be held in detention for a prolonged period at the

17 pre-adjudicatory . . . stage[] of the proceedings”). If the adjudicatory hearing is not

18 timely, Rule 10-243(F)(2) mandates the dismissal of the case, with prejudice,

19 where the adjudication has not commenced within the requisite time limits.




                                              7
 1   {14}   This case involves a very delicate balancing act in adhering to the purposes

 2 behind the Children’s Code and recognizing Child’s right to a timely adjudication.

 3 On one hand, it was Child’s unsuccessful discharge from New Day Shelter that

 4 resulted in the need for Child’s second detention, resulting in a shorter time limit in

 5 which to begin the adjudication. The unsuccessful discharge created an out-of-

 6 detention placement problem. It was not until the day of the pre-trial conference, or

 7 seven days before the expiration of the time limit that the State requested an

 8 extension. The State noted on its motion that the extension was necessary because

 9 “[C]hild is held in detention pending CSA assessment and possible placement out

10 of home.” The district court’s order of continuance for the pretrial conference

11 identified the CSA assessment and possible pending placement as grounds for the

12 continuance. The order extending the time limit did not identify any grounds for

13 the extension much less any good cause basis, but it did identify the trial date of

14 December 13, 2016. So although Child was in detention and time was running,

15 there was still work being done to find him a placement and get him out of

16 detention. Eventually, Child was released to Amistad Shelter on November 21,

17 2016. As a result, the new time limit to commence his adjudication was one

18 hundred twenty days from September 6, 2016 (the date the delinquency petition

19 was filed), or January 4, 2017. See Rule 10-243(B)(1). Two days after Child was




                                              8
 1 released to Amistad Shelter, on November 23, 2016, Child’s attorney filed an

 2 objection to the State’s October 31, 2016 motion for extension.

 3   {15}   Child also argues that the district court’s crowded docket was not good

 4 cause to grant the time limit extension. The State argues that the district court

 5 judge’s verbal comments during the October 31, 2016 hearing, cannot supersede

 6 the formal written order and therefore cannot be the basis for a reversal. During the

 7 pretrial conference and again during the December 12, 2016 hearing, the district

 8 court noted that the trial date was the earliest available date on its docket. We agree

 9 that a court’s busy docket cannot take precedence over a child’s liberty interests.

10 See Anthony M., 1998-NMCA-065, ¶ 9 (noting shorter time limits for a juvenile in

11 detention protects the child’s liberty interest); In Re Doe, 1975-NMCA-108, ¶ 11

12 (stating that the Children’s Code intended that there be prompt adjudication of

13 juvenile delinquency cases); see also State v. Doe, 1977-NMCA-065, ¶¶ 9-11, 90

14 N.M. 568, 566 P.2d 117 (holding that a continuance of sixteen days was properly

15 granted for good cause where the district court was in the middle of a jury trial and

16 did not expect to finish in time for the hearing).

17   {16}   Because there was good cause in the record, although not memorialized in

18 the district court’s order granting the extension of time limits, we hold that the

19 district court did not abuse its discretion in granting the State’s motion for

20 extension of time in which to commence Child’s adjudication.

                                              9
 1 There is Insufficient Evidence to Support Child’s Commission of the
 2 Delinquent Act of Driving a Motor Vehicle without a Valid Driver’s License

 3   {17}   Child was charged with driving without having a valid driver’s license under

 4 Section 66-5-2. Child argues that there is insufficient evidence to prove that he was

 5 driving without a valid driver’s license on September 3, 2016. Child contends that

 6 the State did not prove that he did not hold a valid driver’s license at the time;

 7 instead, they proved that he did not have a driver’s license in his possession at the

 8 time. The State agrees. While we are not bound to accept the State’s concession,

 9 see State v. Tapia, 2015-NMCA-048, ¶ 31, 347 P.3d 738 (stating that appellate

10 courts are not bound by the state’s concession), we agree that the jury’s verdict

11 finding that Child committed the delinquent act of driving without a valid driver’s

12 license should be reversed.

13   {18}   The testimony at trial established that Child did not have a license in his

14 possession on September 3, 2016. It is NMSA 1978, Section 66-5-16 (1985,

15 amended 2018) that requires that a licensee have a driver’s license in their

16 immediate possession. The jury instruction was also misleading, as it required the

17 jury to find, in part, that Child was not in possession of a valid driver’s license, in

18 order to find that he committed the delinquent act of driving a motor vehicle

19 without a valid driver’s license. We conclude that there was insufficient evidence

20 to support the jury’s verdict finding that Child committed the delinquent act of

21 driving a motor vehicle without a valid driver’s license.
                                             10
 1 CONCLUSION

 2   {19}   For the foregoing reasons, we affirm Child’s commission of the delinquent

 3 act of leaving the scene of an accident, and reverse Child’s commission of the

 4 delinquent act of driving a motor vehicle without a valid driver’s license.

 5   {20}   IT IS SO ORDERED.



 6                                               _____________________________
 7                                               M. MONICA ZAMORA, Judge



 8 WE CONCUR:


 9 ___________________________________
10 STEPHEN G. FRENCH, Judge


11 ___________________________________
12 HENRY M. BOHNOFF, Judge




                                            11
