{
  "id": 1598999,
  "name": "In the Matter of MELISSA H., a Child. STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, Petitioner-Appellant, v. JUDY H., Respondent-Appellee",
  "name_abbreviation": "State ex rel. Human Services Department v. Judy H.",
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    "judges": [
      "ALARID and GARCIA, JJ., concur."
    ],
    "parties": [
      "In the Matter of MELISSA H., a Child. STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, Petitioner-Appellant, v. JUDY H., Respondent-Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nBIVINS, Judge.\nThe New Mexico Human Services Department (HSD) appeals from a children\u2019s court order assessing costs against it in a child abuse and neglect proceeding. The sole issue on appeal is whether the children\u2019s court can assess costs against HSD in an abuse and neglect proceeding brought by HSD under the Children's Code, NMSA 1978, Sections 32-1-1 to -45 (Repl.1986). We hold it cannot and reverse.\nFollowing the entry of a consent decree, legal custody of the child was placed with HSD and physical custody with the child\u2019s maternal grandmother. HSD later moved to revoke the consent decree, alleging, among other things, that respondent had maintained only minimal visitation with the child and that her home environment was unstable. Respondent resisted this motion and sought permission to depose the social workers and foster parents assigned to the case. See SCRA 1986, R. 10-306. The children\u2019s court entered an order authorizing the depositions. Following a hearing, the children\u2019s court denied HSD\u2019s motion to revoke the consent decree and ordered that the child be returned to respondent at the expiration of the consent decree. Respondent filed a cost bill seeking $660.86 for the costs of the depositions and moved the children\u2019s court, pursuant to NMSA 1978, Civ.P. Rule 54 (Cum.Supp.1985) (now SCRA 1986, Rule 1-054), for a judgment awarding her those costs. Over HSD\u2019s objection, the children\u2019s court entered an order taxing costs against HSD. From that order HSD appeals. Although it is not clear from the record, we assume the cost bill was for a court reporter\u2019s appearance and transcription of the depositions.\nIt is well established that the right to recover costs exists only by virtue of statutory authority or court rule. New Mexico Bureau of Revenue v. Western Elec. Co., 89 N.M. 468, 553 P.2d 1275 (1976); Gurule v. Ault, 103 N.M. 17, 702 P.2d 7 (Ct.App. 1985). Rule 1-054(E) provides, in pertinent part:\nExcept when express provision therefor is made either in a statute or in these rules, costs shall be allowed as a matter of course to the prevailing party unless the court otherwise directs; but costs against the state, its officers and agencies shall be imposed only to the extent permitted by law.\nAs argued by HSD, Rule 1-054(E) contains two critical limitations under the facts of this case: the rule has no application where an express provision for costs is made elsewhere, and costs against the state can be imposed only if permitted by law.\nWith regard to these limitations, HSD argues that the Children\u2019s Code contains its own statutory provision for costs, and that this provision does not permit taxation of costs against HSD. Section 32-1-41, entitled \u201cCourt costs and expenses,\u201d provides, in pertinent part:\nA. The following expenses shall be a charge upon the funds of the court upon their certification by the court:\n(1) the costs of medical and other examinations and treatment of a child ordered by the court;\n(2) reasonable compensation for services and related expenses for counsel appointed by the court for a party;\n(3) the expenses of service of summons, notices, subpoenas, traveling expenses of witnesses and other like expenses incurred in any proceeding under the Children\u2019s Code; and\n(4)reasonable compensation of a guardian ad litem appointed by the court. [Emphasis added.]\nRespondent\u2019s only argument against the application of Section 32-1-41 is that Subsection A(3) does not specifically include the expense of depositions. Consequently, respondent contends that authority for deposition costs is found under a general statute. She relies on Kirby v. New Mexico State Highway Department, 97 N.M. 692, 643 P.2d 256 (Ct.App.1982), a case in which this court ruled that costs could be assessed against the state under NMSA 1978, Section 39-3-30 in damage actions under the New Mexico Tort Claims Act. Respondent\u2019s reliance on Kirby v. New Mexico State Highway Department is misplaced.\nOur resolution against the application of Section 39-3-30 is required by the rule that specific statutes control over general statutes. In re Rehabilitation of Western Investors Life Ins. Co., 100 N.M. 370, 671 P.2d 31 (1983). The Children\u2019s Code contains its own statutory provision for costs. See \u00a7 32-1-41.\nWe now examine that statute to determine if deposition costs are included. The parties agree that if deposition costs are allowed, it must be found under Section 32-l-41(A)(3), which provides: \u201cthe expenses of service of summons, notices, subpoenas, traveling expenses of witnesses and other like expenses incurred in any proceeding under the Children\u2019s Code[.]\u201d (Emphasis added.) We do not believe the phrase \u201cother like expenses\u201d includes depositions. Under the rule ejusdem generis,\ngeneral words in a statute, which follow a designation or enumeration of particular subjects, objects, things, or classes of persons, will ordinarily be presumed to be restricted so as to embrace only subjects, objects, things, or classes of the same general character, sort or kind, to the exclusion of all others.\nGrafe v. Delgado, 30 N.M. 150, 153, 228 P. 601, 602 (1924). Deposition costs do not appear to be of the same character, sort or kind as expenses for service of process and traveling expenses of witnesses.\nThis result is consistent with the supreme court rule governing depositions in children\u2019s court cases. SCRA 1986, Rule 22-301(A) provides, in part: \u201cDepositions in criminal, children\u2019s court and termination of parental rights cases shall be taken on an audio recording device approved by the administrative office of the courts. The tape recording shall serve as the record on appeal and shall not be typed.\u201d\nFrom an examination of Section 32-1-41, as relates to this case, two things are clear. One, either the court fund or the parents or other persons legally obligated for the care and support of the child, not HSD, is responsible for court costs and expenses. Two, reading Section 32-1-41 in conjunction with Rule 22-301(A), the costs of depositions are not allowable costs. Therefore, the court fund is not responsible for the costs of the depositions taken in this proceeding. Consequently, respondent must bear those costs.\nWe reverse the order assessing costs against HSD.\nIT IS SO ORDERED.\nALARID and GARCIA, JJ., concur.",
        "type": "majority",
        "author": "BIVINS, Judge."
      }
    ],
    "attorneys": [
      "Angela L. Adams, Acting Gen. Counsel, Susan K. Rehr and John Petoskey, Assts. Gen. Counsel, Human Services Dept., Santa Fe, for petitioner-appellant.",
      "Ralph E. Ellinwood, John F. Schaber, P.A., Deming, for respondent-appellee.",
      "M. Lea Brownfield, Jeffreys, Cooper & Associates, Deming, guardian ad litem."
    ],
    "corrections": "",
    "head_matter": "735 P.2d 1184\nIn the Matter of MELISSA H., a Child. STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, Petitioner-Appellant, v. JUDY H., Respondent-Appellee.\nNo. 9563.\nCourt of Appeals of New Mexico.\nMarch 19, 1987.\nCertiorari Denied April 21, 1987.\nAngela L. Adams, Acting Gen. Counsel, Susan K. Rehr and John Petoskey, Assts. Gen. Counsel, Human Services Dept., Santa Fe, for petitioner-appellant.\nRalph E. Ellinwood, John F. Schaber, P.A., Deming, for respondent-appellee.\nM. Lea Brownfield, Jeffreys, Cooper & Associates, Deming, guardian ad litem."
  },
  "file_name": "0678-01",
  "first_page_order": 718,
  "last_page_order": 720
}