March 31, 2026- State of New Mexico v. Nicholas Schmidt, No. A-1-CA-41744

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: March 31, 2026	3
No. A-1-CA-41744	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellant,	6
v.	7
NICHOLAS SCHMIDT a/k/a	8
NICHOLAS ANDREW SCHMIDT,	9
Defendant-Appellee.	10
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	11
Stan Whitaker, District Court Judge	12
Raúl Torrez, Attorney General	13
Santa Fe, NM	14
Meryl E. Francolini, Assistant Solicitor General	15
Albuquerque, NM	16
for Appellant	17
Bennett Baur, Chief Public Defender	18
Santa Fe, NM	19
Steven J. Forsberg, Assistant Appellate Defender	20
Albuquerque, NM	21
for Appellee	22
Court of Appeals of New Mexico
Filed 3/31/2026 8:19 AM

OPINION	1
WRAY, Judge.	2
{1} 	In this appeal, we consider whether the spousal privilege applies to protect	3
communications between spouses regarding the abuse of a foster child. Rule 11-	4
505(B) NMRA affords spouses “a privilege to refuse to disclose, or to prevent	5
another from disclosing, a confidential communication by the person to that person’s	6
spouse while they were married.” The privilege does not apply in “proceedings in	7
which one spouse is charged with a crime against . . . a child of either.” Rule 11-	8
505(D)(1)(a). In the present case, the district court did not apply the Rule 11-	9
505(D)(1)(a) exception and excluded statements made between Defendant and his	10
spouse regarding the abuse of a foster child in their care. Because we conclude that	11
a child who is entrusted by the state to the care of foster parents is “a child of either”	12
spouse, we reverse.	13
BACKGROUND	14
{2} 	Defendant and his spouse were licensed foster parents to B.B., who was two	15
years old when he came into their care. Extensive, “head to toe” injuries were	16
discovered during a medical exam of B.B., and he was removed from the couple’s	17
care. The investigation that followed revealed text messages between Defendant and	18
his spouse that discussed the abuse of B.B.	19

2
{3} 	Defendant and his spouse were charged with child abuse and failure to report	1
child abuse or neglect. The State filed a motion that sought a ruling from the district	2
court about whether the spousal privilege would apply to the text messages or if the	3
Rule 11-505(D)(1)(a) exception would permit the admission of the evidence. After	4
a hearing, the district court ruled that the spousal privilege applied, because the State	5
had not demonstrated a “significant indicia of a—parental kind of relationship	6
status.” The State appeals.	7
DISUSSION	8
{4} 	We generally “review a district court’s evidentiary rulings for an abuse of	9
discretion.” State v. Duran, 2015-NMCA-015, ¶ 11, 343 P.3d 207. The State argues	10
that our review should be de novo, because the district court misinterpreted Rule 11-	11
505(D)(1)(a) and the spousal privilege does not shield communications between	12
foster parents about the abuse of a foster child. Defendant maintains that the district	13
court did not categorically reject the application of Rule 11-505(D)(1)(a), but instead	14
determined that the State did not prove “the requisite parental relationship” in the	15
present case. For this reason, Defendant contends that we need not construe the	16
language of the privilege but only the district court’s “specific application of the rule	17
in this instance.” In order to consider the State’s arguments on appeal, we must	18
evaluate the application of the law to the facts and “give effect to the purpose and	19
intent of our Supreme Court” in promulgating Rule 11-505(D)(1)(a). See State v.	20

3
Lucero, 2023-NMCA-035, ¶ 18, 528 P.3d 762. Our review is therefore de novo. See	1
Allen v. LeMaster, 2012-NMSC-001, ¶ 11, 267 P.3d 806 (reviewing de novo	2
decisions involving the “construction of the law of privileges” (internal quotation	3
marks and citation omitted)); State v. Oppenheimer & Co., 2019-NMCA-045, ¶ 6,	4
447 P.3d 1159 (“Even when we review for an abuse of discretion, our review of the	5
application of the law to the facts is conducted de novo.” (alteration, internal	6
quotation marks, and citation omitted)).	7
{5} 	When reviewing a rule, we apply “the same rules of construction applicable	8
to the interpretation of statutes.” State v. Lopez, 2023-NMSC-011, ¶ 10, 529 P.3d	9
893 (internal quotation marks and citation omitted). To interpret a statute, we look	10
to the language of the statute, “its history and background and how the specific	11
statute fits within the broader statutory scheme.” Chaterjee v. King, 2012-NMSC-	12
019, ¶ 12, 280 P.3d 283. Applying these principles to our review of Rule 11-	13
505(D)(1)(a), we consider the language of the spousal privilege exception according	14
to its history and background as well as how the exception fits within the rules of	15
privilege. See State v. Evans, 2023-NMCA-004, ¶ 7, 521 P.3d 1257 (considering the	16
language of the rule, and if the rule is ambiguous, “its purpose in conjunction with	17
other rules” in order to “seek guidance from the rule’s language, history, and	18
background.”); State v. Tarver, 2005-NMCA-030, ¶ 9, 137 N.M. 115, 108 P.3d 1	19

4
(“When statutes are related by subject matter, we read them together and construe	1
them as a harmonious whole.”).	2
{6} 	Considering first the language of Rule 11-505(D)(1)(a), we conclude that the	3
phrase “a child of either” is ambiguous. A rule is ambiguous “when it can be	4
understood by reasonably well-informed persons in two or more different senses.”	5
In re Gabriel M., 2002-NMCA-047, ¶ 12, 132 N.M. 124, 45 P.3d 64 (internal	6
quotation marks and citation omitted). Rule 11-505(D)(1)(a) refers to “a child of	7
either” spouse who would claim the privilege, which could reasonably be understood	8
narrowly to refer only to a biological child or more broadly to encompass at least	9
some or all of the following: an adopted child, a stepchild, a child over whom the	10
spouse has some other legal authority, a child whose care has been entrusted to the	11
spouse, and a child who is simply viewed or treated as a child of either. See State v.	12
Howell, 1979-NMCA-069, ¶¶ 4, 7, 93 N.M. 64, 596 P.2d 277 (considering but not	13
deciding whether the spousal privilege applied if the child was an adopted child or a	14
stepchild of the spouse or where the spouse “intended to assume the status of parent	15
to the child”); State v. Michels, 414 N.W.2d 311, 315 (Wis. Ct. App. 1987)	16
(concluding that a similar statute was ambiguous because “reasonable persons could	17
construe the ‘child of either’ exception [to the spousal privilege], to mean a child	18
with a biological or legal relationship to the parent on the one hand, or any child	19
living in a family-type setting on the other”). Given these reasonable, differing	20

5
understandings of the language “a child of either,” we turn to the history and	1
background of the spousal privilege exception for guidance in resolving the	2
ambiguity. See Evans, 2023-NMCA-004, ¶ 7.	3
{7} 	New Mexico law reveals little by way of history and background for Rule 11-	4
505(D)(1)(a), but other jurisdictions with similar rules have shed some light on the	5
purpose of this particular exception to the spousal privilege. Some jurisdictions	6
indicate that the exception was enacted for the broad purpose of preventing “child	7
abuse.” See Daniels v. State, 681 P.2d 341, 345 (Alaska Ct. App. 1984); see also	8
State v. Sewell, 205 A.3d 966, 979-80 (Md. 2019) (concluding that mandatory	9
reporting 	requirements 	eliminated 	a 	spouse’s 	expectation 	of 	privacy 	in	10
communications regarding child abuse); United States v. Bahe, 128 F.3d 1440, 1446	11
(10th Cir. 1997) (recognizing a common law exception to the federal spousal	12
privilege for “testimony relating to the abuse of a minor child within the household”	13
because “[c]hild abuse is a horrendous crime”). Other jurisdictions have more	14
narrowly determined that the exception is intended “to protect society from crimes	15
against family members.” Dunn v. Superior Court, 21 Cal.App.4th 721, 724 (Ct.	16
App. 1993); Michels, 414 N.W.2d at 316 (“The ‘child of either’ exception was	17
created to permit prosecution for crimes committed within the family unit.”). In any	18
event, courts often evaluate whether the purpose of the underlying spousal privilege	19
is served in the context of allegations of child abuse by a spouse. See Commonwealth	20

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v. Hunter, 60 A.3d 156, 159 (Pa. Super. Ct. 2013) (“Practically, it is important that	1
courts recognize that excluding information may not always further the intended	2
goal of a privilege and may, in fact, hinder the prosecution of legal proceedings	3
intended to protect fragile members of society.”); Dunn, 21 Cal.App.4th at 723-24	4
(“The exemption is grounded on the self-evident premise that marital harmony	5
would be nonexistent in criminal actions where a child of either spouse is the victim	6
of a crime committed by one of the spouses.” (alteration, internal quotation marks,	7
and citation omitted)); Daniels, 681 P.2d at 345 (explaining that the spousal-	8
privilege policy to further martial harmony “must yield to the policy of preventing	9
child abuse”); Merritt v. State, 339 So. 2d 1366, 1370 (Miss. 1976) (“A crime of	10
personal violence against the child is a crime that destroys the conjugal relation and	11
in essence is a controversy between husband and wife within the meaning of our	12
statute.”). In these jurisdictions, the goal of the spousal privilege is generally not	13
served by excluding testimony related to child abuse.	14
{8} 	We take our cue from these jurisdictions. The spousal privilege in New	15
Mexico has been described in many ways, but the privilege essentially protects the	16
marital relationship and prevents unwarranted invasions of privacy. See State v.	17
Gutierrez, 2021-NMSC-008, ¶¶ 15-20, 482 P.3d 700.1 Importantly, our Supreme	18
1 In Gutierrez, our Supreme Court examined the continued viability of the
spousal privilege, id. ¶¶ 21-37, and requested that the relevant Supreme Court rules
committee consider “whether Rule 11-505 should be amended or abolished or

7
Court has also observed that privileges interfere “with the truth-seeking process of	1
litigation” and that “‘exceptions to the demand for every [person’s] evidence are not	2
lightly created nor expansively construed.’” Albuquerque Rape Crisis Cntr. v.	3
Blackmer, 2005-NMSC-032, ¶¶ 18-19, 138 N.M. 398, 120 P.3d 820 (quoting United	4
States v. Nixon, 418 U.S. 683, 710 (1974)). Based on these principles, we conclude	5
that our Supreme Court intended for the exception as set forth Rule 11-505(D)(1)(a)	6
to elevate the “truth-seeking process” during certain child-abuse prosecutions over	7
protecting the personal relationships and the privacy rights of married adults. See	8
Blackmer, 2005-NMSC-032, ¶ 18. With some understanding of intent and purpose	9
in hand, we return to the original question: To which children does the language of	10
Rule 11-505(D)(1)(a) apply?	11
{9} 	We conclude that Rule 11-505(D)(1)(a) does not limit its reach to only	12
biological children. In many contexts, New Mexico law permits the full legal	13
extension of the parent-child relationship to nonbiological children. See, e.g., NMSA	14
1978, § 32A-5-2(A) (1993) (providing that the purpose of the adoption statutes is to	15
“establish procedures to effect a legal relationship between a parent and adopted	16
child that is identical to that of a parent and biological child”); NMSA 1978, § 40-	17
11A-201 (2009) (providing for multiple ways to establish a parental relationship).	18
should remain unchanged.” Gutierrez, 2021-NMSC-008, ¶ 111. The relevant rules
committee has not yet addressed the issue. See Rule 11-505 comm. cmt.

8
In other contexts, a nonbiological parent-child relationship may be partial or	1
temporary. See, e.g., NMSA 1978, § 32A-4-31(A) (2005) (defining the rights of a	2
permanent guardian); NMSA 1978, § 40-10B-13(A) (2001) (defining the rights and	3
duties of a kinship guardian as “the legal rights and duties of a parent except the right	4
to consent to adoption of the child and except for parental rights and duties that the	5
court orders retained by a parent”). As we have noted, this Court has suggested that	6
Rule 11-505(D)(1)(a) applies to these types of legal, nonbiological parent-child	7
relationships. See Howell, 1979-NMCA-069, ¶¶ 4, 7.	8
{10} 	With this in mind, we see no reason why a foster child would not also be “a	9
child of either” married foster parent for the purposes of Rule 11-505(D)(1)(a). We	10
therefore 	hold—consistent 	with 	the 	persuasive 	holdings 	of 	courts 	in 	other	11
jurisdictions—that the exception in Rule 11-501(D)(1)(a) applies to a child in the	12
foster care of one or both spouses. See Daniels, 681 P.2d at 345 (“We believe that a	13
foster child . . . , who is placed by the state and accepted by the foster parents in a	14
foster home, should be entitled to the same protection as a natural or adopted	15
child.”); Dunn, 21 Cal.App.4th at 724 (seeing “no reason to exclude foster children	16
from [the definition of ‘a child of . . . either’], as it is consistent with the general	17
legislative intent”); State v. Brydon, 626 S.W.2d 443, 452-53 (Mo. Ct. App. 1981)	18
(explaining that “a crime against the child of the family is equivalent to a crime	19

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against the spouse” and “[a] child committed to the protection of foster parents	1
logically comes within that ambit”).	2
{11} 	As Defendant notes, the district court did not rule to the contrary but instead	3
determined that as a factual matter, the State had not established that the particular	4
relationship here was sufficiently parental or that the relationship would be long	5
term. We conclude that no such factual inquiry is necessary in this circumstance. A	6
“foster parent” is a person licensed by Children, Youth & Families Department	7
(CYFD) or a child placement agency “to provide care for children in the custody of”	8
CYFD or a child placement agency. See NMSA 1978, § 32A-1-4(K) (2025).2 By	9
this definition, a child is placed in the care of a licensed foster parent by CYFD or	10
any agency, which has taken custody of the child from the biological parents. The	11
potentially temporary nature of that formal relationship does not suggest a reason	12
why a foster child is not “a child of either” married foster parent after they have been	13
entrusted with and have accepted the profound responsibility of providing for the	14
care of the child.	15
{12} 	In the present case, because the spouses shared a foster-parent relationship	16
with B.B., we need not consider whether a less formal relationship would qualify to	17
2Section 32A-1-4 was amended in 2022, 2023, and 2025, after the alleged
criminal behavior in the present case. Apart from recompilation from Section 32A-
1-4(I) (2019) to Section 32A-1-4(K), those amendments do not impact our analysis.
We therefore refer to the current statute.

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trigger Rule 11-505(D)(1)(a)’s exception or the factual showing that would be	1
necessary under any such circumstances. See Fevig v. Fevig, 1977-NMSC-005, ¶ 7,	2
90 N.M. 51, 559 P.2d 839 (“A person is said to stand in loco parentis when [they]	3
put[] [themselves] in the situation of a lawful parent by assuming the obligations	4
incident to the parental relationship without going through the formalities necessary	5
to a legal adoption” and with the intent “to assume toward the child the status of a	6
parent.”). Instead, we hold only that a foster child is “a child of either” spouse for	7
the purposes of Rule 11-505(D)(1)(a).	8
CONCLUSION	9
{13} 	We reverse and remand.	10
{14} 	IT IS SO ORDERED.	11
__________________________________	12
KATHERINE A. WRAY, Judge	13
WE CONCUR:	14
_________________________________	15
MEGAN P. DUFFY, Judge	16
_________________________________	17
ZACHARY A. IVES, Judge	18