Legal Memorandum: Exceptions allow an unavailable declarant’s statements into evidence

Issue: Under the New Mexico Rules of Evidence, what exceptions to the hearsay rule will allow the introduction of evidence otherwise characterized as hearsay, if the declarant is not available to testify?

Area of Law: Litigation & Procedure, Uncategorized
Keywords: ; Evidence; Hearsay; Declarant; Unavailable; Exception; Criminal
Jurisdiction: New Mexico
Cited Cases: 129 P.2d 640; 445 P.2d 393; 233 P. 49; 546 P.2d 863; 30 N.M. 309; 89 N.M. 15; 704 P.2d 443; 5 N.M. 365; 38 N.M. 550; 23 P. 175; 37 P.2d 802
Cited Statutes: None
Date: 11/01/2015

A proceeding to terminate a party’s parental rights under the Juvenile Court Act of 1987 ([statref]705 ILCS 405/1-1 et seq. (West 2014)[/statref]) occurs in two stages. First, the State must establish that the parent is "unfit to have a child" under one or more of the grounds in the Adoption Act. In re D.T., 212 Ill.2d 347, 352 (2004); see [statref]750 ILCS 50/1(D) (West 2014)[statref] (setting out bases for finding of unfitness). At the unfitness hearing, the State bears the burden of proving, by clear and convincing evidence, that the parent is unfit to have a child. See In re D.W., 214 Ill.2d 289, 315 (2005); In re D.T., 212 Ill.2d at 352-53. The reason for this heightened burden of proof is rooted in the notion that "the right of parents to control the upbringing of their children is a fundamental constitutional right." D.W., 214 Ill.2d at 310; see also In re Shauntae P., 2012 IL App (1st) 112280, ¶ 88 ("Because the termination of parental rights constitutes a complete severance of the relationship between the parent and child, proof of parental unfitness must be clear and convincing.").

A finding of unfitness must be supported by clear and convincing evidence. [statref]705 ILCS 405/2-29(2) (West 2014)[/statref]; In re J.L., 236 Ill.2d 329, 337 (2010). We must defer to the trial court’s finding of unfitness, because that finding involves factual findings and credibility assessments that the trial court is better-equipped to make. In re Richard H., 376 Ill.App.3d […]

Subscribe to Litigation Pathfinder

To get the full-text of this Legal Memorandum ... and more!

(Month-to-month and annual subscriptions available)