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SENATE BILL 326
57TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 2025
INTRODUCED BY
Pete Campos
AN ACT
RELATING TO DELINQUENCY; AMENDING THE DELINQUENCY ACT;
EXPANDING THE DEFINITIONS FOR "SERIOUS YOUTHFUL OFFENDER" AND
"YOUTHFUL OFFENDER"; PROVIDING FOR TRANSPORT OF A SERIOUS
YOUTHFUL OFFENDER TO A DISTRICT COURT WHEN ORDERED AND FOR THAT
OFFENDER TO BE SEGREGATED FROM ADULTS; REMOVING THE REQUIREMENT
THAT A CHILDREN'S COURT ATTORNEY CONSULT PROBATION SERVICES
BEFORE FILING A DELINQUENCY PETITION; REMOVING THE REQUIREMENT
THAT A DETENTION RISK ASSESSMENT BE COMPLETED BEFORE A CHILD IS
PLACED IN DETENTION; PROVIDING THAT A DETAINED CHILD BE
TRANSFERRED TO AN ADULT FACILITY IF THE CHILD REACHES EIGHTEEN
YEARS OF AGE; EXPANDING THE COURT'S DISCRETION TO HOLD A
DETENTION HEARING BY MEANS OF ELECTRONIC COMMUNICATION;
PROVIDING THAT A SERIOUS YOUTHFUL OFFENDER FOURTEEN YEARS OF
AGE OR OLDER MAY WAIVE THE SERIOUS YOUTHFUL OFFENDER'S RIGHT TO
AN AMENABILITY HEARING; PROVIDING THE CHILDREN, YOUTH AND
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FAMILIES DEPARTMENT AND THE CORRECTIONS DEPARTMENT WITH
DISCRETION TO PREPARE CERTAIN PREDISPOSITION REPORTS; REMOVING
LIMITATIONS ON THE TYPES OF COMMITMENT A COURT MAY ORDER;
PROVIDING THAT A COURT MAY NOT WEIGH ONE AMENABILITY FACTOR
MORE HEAVILY THAN ANOTHER FOR SENTENCING PURPOSES; PROVIDING A
COURT WITH DISCRETION TO EXTEND A JUDGMENT UP TO THE DATE A
CHILD REACHES TWENTY-FIVE YEARS OF AGE; ELIMINATING THE
CHILDREN, YOUTH AND FAMILIES DEPARTMENT'S EXCLUSIVE
JURISDICTION AND AUTHORITY TO RELEASE AN ADJUDICATED DELINQUENT
CHILD; PROVIDING THAT THE STANDARD OF PROOF IN A PROBATION
REVOCATION PROCEEDING IS PREPONDERANCE OF THE EVIDENCE;
AUTHORIZING A PARTY TO REFERENCE SEALED JUVENILE RECORDS FOR
THE PURPOSES OF A HEARING REGARDING PRETRIAL DETENTION,
CONDITIONS OF RELEASE OR SENTENCING; REPEALING SECTION
32A-2-32.1 NMSA 1978 (BEING LAWS 2007, CHAPTER 96, SECTION 1);
MAKING CONFORMING AMENDMENTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 32A-2-2 NMSA 1978 (being Laws 1993,
Chapter 77, Section 31, as amended) is amended to read:
"32A-2-2. PURPOSE OF ACT.--The purpose of the Delinquency
Act is:
A. consistent with the protection of the public
interest, to remove from children committing delinquent acts
the adult consequences of criminal behavior, but to still hold
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children committing delinquent acts accountable for their
actions to the extent of the child's age, education, mental and
physical condition, background and all other relevant factors,
and to provide a program of supervision, care and
rehabilitation, including rehabilitative restitution by the
child to the victims of the child's delinquent act to the
extent that the child is reasonably able to do so;
B. to provide effective deterrents to acts of
juvenile delinquency, if deterrents are appropriate , including
an emphasis on community-based alternatives;
C. to strengthen families and to successfully
reintegrate children into homes and communities;
D. to foster and encourage collaboration between
government agencies and communities with regard to juvenile
justice policies and procedures;
E. to develop juvenile justice policies and
procedures that are supported by data;
F. to develop objective risk assessment instruments
to be used for admission to juvenile detention centers;
G. to encourage efficient processing of cases;
H. to develop community-based alternatives to
detention, if alternatives are appropriate ;
I. to eliminate or reduce disparities based upon
race or gender;
J. to improve conditions of confinement in juvenile
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detention centers; and
K. to achieve reductions in the number of warrants
issued, the number of probation violations and the number of
youth awaiting placements."
SECTION 2. Section 32A-2-3 NMSA 1978 (being Laws 1993,
Chapter 77, Section 32, as amended) is amended to read:
"32A-2-3. DEFINITIONS.--As used in the Delinquency Act:
A. "delinquent act" means an act committed by a
child that would be designated as a crime under the law if
committed by an adult, not including a violation of Section
30-9-2 NMSA 1978, including the following offenses:
(1) any of the following offenses pursuant to
municipal traffic codes or the Motor Vehicle Code:
(a) driving while under the influence of
intoxicating liquor or drugs;
(b) failure to stop in the event of an
accident causing [death ] personal injury or damage to property;
(c) unlawful taking of a vehicle or
motor vehicle;
(d) receiving or transferring of a
stolen vehicle or motor vehicle;
[(e) homicide by vehicle;
(f)] (e) injuring or tampering with a
vehicle;
[(g)] (f) altering or changing of an
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engine number or other vehicle identification numbers;
[(h)] (g) altering or forging of a
driver's license or permit or any making of a fictitious
license or permit;
[(i)] (h) reckless driving;
[(j)] (i) driving with a suspended or
revoked license; or
[(k)] (j) an offense punishable as a
felony;
(2) buying, attempting to buy, receiving,
possessing or being served any alcoholic liquor or being
present in a licensed liquor establishment, other than a
restaurant or a licensed retail liquor establishment, except in
the presence of the child's parent, guardian, custodian or
adult spouse. As used in this paragraph, "restaurant" means an
establishment where meals are prepared and served primarily for
on-premises consumption and that has a dining room, a kitchen
and the employees necessary for preparing, cooking and serving
meals. "Restaurant" does not include an establishment, as
defined in regulations promulgated by the director of the
special investigations unit of the New Mexico state police
division of the department of public safety, that serves only
hamburgers, sandwiches, salads and other fast foods;
(3) a violation of Section 30-29-2 NMSA 1978,
regarding the illegal use of a glue, aerosol spray product or
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other chemical substance;
(4) a violation of the Controlled Substances
Act;
(5) escape from the custody of a law
enforcement officer or a juvenile probation or parole officer
or from any placement made by the department by a child who has
been adjudicated a delinquent child;
(6) a violation of Section 30-15-1.1 NMSA 1978
regarding unauthorized graffiti on personal or real property;
(7) a violation of an order of protection
issued pursuant to the provisions of the Family Violence
Protection Act; or
(8) trafficking cannabis as provided in
Section 26-2C-28 NMSA 1978;
B. "delinquent child" means a child who has
committed a delinquent act;
C. "delinquent offender" means a delinquent child
who is subject to juvenile sanctions only and who is not a
youthful offender or a serious youthful offender;
D. "detention facility" means a place where a child
may be detained under the Children's Code pending a court
hearing and does not include a facility for the care and
rehabilitation of an adjudicated delinquent child;
E. "felony" means an act that would be a felony if
committed by an adult;
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F. "misdemeanor" means an act that would be a
misdemeanor or petty misdemeanor if committed by an adult;
G. "restitution" means financial reimbursement by
the child to the victim or community service imposed by the
court and is limited to easily ascertainable damages for injury
to or loss of property, actual expenses incurred for medical,
psychiatric and psychological treatment for injury to a person
and lost wages resulting from physical injury, which are a
direct and proximate result of a delinquent act. "Restitution"
does not include reimbursement for damages for mental anguish,
pain and suffering or other intangible losses. As used in this
subsection, "victim" means a person who is injured or suffers
damage of any kind by an act that is the subject of a complaint
or referral to law enforcement officers or juvenile probation
authorities. Nothing contained in this definition limits or
replaces the provisions of Subsections A and B of Section
32A-2-27 NMSA 1978;
H. "serious youthful offender" is not a delinquent
child and means [an individual fifteen ] a child fourteen to
eighteen years of age who is charged with [and indicted or
bound over for trial for first degree murder. A "serious
youthful offender" is not a delinquent child as defined
pursuant to the provisions of this section ] at least one of the
following crimes:
(1) murder in the first degree or murder in
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the second degree, as provided in Section 30-2-1 NMSA 1978;
(2) voluntary manslaughter, as provided in
Section 30-2-3 NMSA 1978;
(3) robbery while armed with a deadly weapon,
as provided in Section 30-16-2 NMSA 1978; or
(4) shooting at a dwelling or occupied
building that results in great bodily harm to another person or
shooting at or from a motor vehicle that results in great
bodily harm to another person, as provided in Section 30-3-8
NMSA 1978;
I. "supervised release" means the release of a
juvenile, whose term of commitment has not expired, from a
facility for the care and rehabilitation of adjudicated
delinquent children, with specified conditions to protect
public safety and promote successful transition and
reintegration into the community. A juvenile on supervised
release is subject to monitoring by the department until the
term of commitment has expired and may be returned to custody
for violating conditions of release; and
J. "youthful offender" means a delinquent child
subject to adult or juvenile sanctions who is [(1) ] fourteen to
eighteen years of age [at the time of the offense and who is
adjudicated for at least one of the following offenses:
(a) second degree murder, as provided in
Section 30-2-1 NMSA 1978 ] and is:
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(1) charged with at least one of the following
offenses:
[(b)] (a) assault with intent to commit
a violent felony, as provided in Section 30-3-3 NMSA 1978;
[(c)] (b) kidnapping, as provided in
Section 30-4-1 NMSA 1978;
[(d)] (c) aggravated battery, as
provided in Subsection C of Section 30-3-5 NMSA 1978;
[(e)] (d) aggravated battery against a
household member, as provided in Subsection C of Section
30-3-16 NMSA 1978;
[(f)] (e) aggravated battery upon a
peace officer, as provided in Subsection C of Section 30-22-25
NMSA 1978;
[(g)] (f) shooting at a dwelling or
occupied building that does not result in great bodily harm to
another person or shooting at or from a motor vehicle that does
not result in great bodily harm to another person , as provided
in Section 30-3-8 NMSA 1978;
[(h)] (g) dangerous use of explosives,
as provided in Section 30-7-5 NMSA 1978;
[(i)] (h) criminal sexual penetration,
as provided in Section 30-9-11 NMSA 1978;
[(j)] (i) robbery, as provided in
Section 30-16-2 NMSA 1978;
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[(k)] (j) aggravated burglary, as
provided in Section 30-16-4 NMSA 1978;
[(l)] (k) aggravated arson, as provided
in Section 30-17-6 NMSA 1978; [or
(m)] (l) abuse of a child that results
in great bodily harm or death to the child, as provided in
Section 30-6-1 NMSA 1978;
(m) unlawful possession of a handgun by
a person, as provided in Section 30-7-2.2 NMSA 1978;
(n) homicide by vehicle, as provided in
Section 66-8-101 NMSA 1978;
(o) involuntary manslaughter, as
provided in Section 30-2-3 NMSA 1978; or
(p) failing to stop a vehicle when the
vehicle is involved in an accident that results in injury or
death, as provided in Section 66-7-201 NMSA 1978; or
(2) [fourteen to eighteen years of age at the
time of the offense, who is ] adjudicated for [any ] a felony
offense and who has had three prior, separate felony
adjudications within a three-year time period immediately
preceding the instant offense; provided that:
(a) the felony adjudications relied upon
as prior adjudications shall not have arisen out of the same
transaction or occurrence or series of events related in time
and location; and
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(b) successful completion of a consent
[decrees is] decree shall not be considered a prior
adjudication for the purposes of this paragraph [or
(3) fourteen years of age and who is
adjudicated for first degree murder, as provided in Section
30-2-1 NMSA 1978]."
SECTION 3. Section 32A-2-4.1 NMSA 1978 (being Laws 2009,
Chapter 239, Section 12) is amended to read:
"32A-2-4.1. ADULT JAILS AND LOCKUPS USED AS TEMPORARY
HOLDING FACILITIES--REPORTS.--
A. A child arrested and detained for an alleged
delinquent act may be temporarily held in an adult jail or
lockup for no longer than six hours. A child who is detained
in an adult jail or lockup shall be placed in a setting that is
physically segregated by sight and sound from adult offenders.
After six hours, the child may be placed or detained pursuant
to the provisions of Section 32A-2-12 NMSA 1978.
B. An adult jail or lockup used as a temporary
holding facility for alleged delinquent offenders shall file an
annual report regarding its compliance with federal
requirements. The juvenile justice advisory committee and the
department shall determine the format of the annual reports.
C. A serious youthful offender shall be transported
to a district court when the serious youthful offender's
appearance is ordered by the district court; provided, however,
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that the serious youthful offender shall be physically
segregated from adult offenders and segregated by sight and
sound from adult offenders to the fullest extent possible. "
SECTION 4. Section 32A-2-8 NMSA 1978 (being Laws 1993,
Chapter 77, Section 37) is amended to read:
"32A-2-8. PETITION--AUTHORIZATION TO FILE.--A petition
alleging delinquency shall not be filed [in ] to initiate
delinquency proceedings unless the children's court attorney
[after consulting with probation services ] has determined and
endorsed upon the petition that the filing of the petition is
in the best interest of the public and the child. The
children's court attorney shall furnish legal services in
connection with the authorization and preparation of the
petition."
SECTION 5. Section 32A-2-11 NMSA 1978 (being Laws 1993,
Chapter 77, Section 40, as amended) is amended to read:
"32A-2-11. CRITERIA FOR DETENTION OF CHILDREN.--
A. [Unless] Except as otherwise ordered by the
court pursuant to the provisions of the Delinquency Act, a
child taken into custody for an alleged delinquent act shall
not be placed in detention unless [a detention risk assessment
instrument is completed and ] a determination is made that the
child:
(1) poses a substantial risk of harm to
[himself] the child's self;
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(2) poses a substantial risk of harm to
others; or
(3) has demonstrated that [he ] the child may
leave the jurisdiction of the court.
B. The criteria for detention provided for in this
section shall [govern ] apply to the decisions of all persons
responsible for determining whether detention is appropriate
prior to a detention hearing. [based upon review of the
detention risk assessment instrument.
C. The department shall develop and implement a
detention risk assessment instrument. The department shall
collect and analyze data regarding the application of the
detention risk assessment instrument. On January 1, 2004, the
department shall provide the legislature with a written report
with respect to its collection and analysis of data regarding
the application of the detention risk assessment instrument ]"
SECTION 6. Section 32A-2-12 NMSA 1978 (being Laws 1993,
Chapter 77, Section 41, as amended) is amended to read:
"32A-2-12. PLACEMENT OR DETENTION.--
A. A child alleged to be a delinquent child may be
placed or detained, pending a court hearing, in any of the
following places:
(1) a licensed foster home or a home otherwise
authorized under the law to provide foster or group care;
(2) a facility operated by a licensed child
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welfare services agency;
(3) a shelter-care facility provided for in
the Children's Shelter Care Act that is in compliance with all
standards, conditions and regulatory requirements and that
shall be considered a temporary placement subject to judicial
review within thirty days of placement;
(4) a detention facility certified by the
department for children alleged to be delinquent children;
(5) any other suitable place, other than a
facility for the long-term care and rehabilitation of
delinquent children to which children adjudicated as delinquent
may be confined pursuant to Section 32A-2-19 NMSA 1978,
designated by the court [and ] that meets the standards for
detention facilities pursuant to the Children's Code and
federal law; or
(6) the child's home or place of residence,
under conditions and restrictions approved by the court.
B. A child alleged to be a youthful offender may be
detained, pending a court hearing, in any of the following
places:
(1) a detention facility, licensed by the
department, for children alleged to be delinquent children; or
(2) any other suitable place, other than a
facility for the long-term care and rehabilitation of
delinquent children to which children adjudicated as delinquent
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children may be confined pursuant to Section 32A-2-19 NMSA
1978, designated by the court [and ] that meets the standards
for detention facilities pursuant to the Children's Code and
federal law.
C. A child adjudicated as a youthful offender who
is violent toward staff or other residents in a detention
facility may be transferred and detained, pending a court
hearing, in a county jail. In the event that a child is
detained in a jail, the director of the jail shall presume that
the child is vulnerable to victimization by inmates within the
adult population because of the child's age and shall take
measures to provide protection to the child. However,
provision of protective measures shall not result in
diminishing a child's civil rights to less than those existing
for an incarcerated adult.
D. A child who has previously been incarcerated as
an adult [or a person eighteen years of age or older ] shall not
be detained in a juvenile detention facility or a facility for
the long-term care and rehabilitation of delinquent children
but may be detained in a county jail. A child [shall not ] who
reaches eighteen years of age while in a juvenile detention
facility shall be transferred to a county jail [solely on the
basis of attaining the age of eighteen while detained in a
juvenile detention facility ]. In the event that a child is
detained in a jail, the director of the jail shall presume that
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the child is vulnerable to victimization by inmates within the
adult population because of the child's age, and shall take
measures to provide protection to the child. However,
provision of protective measures shall not result in
diminishing a child's civil rights to less than those existing
for an incarcerated adult.
E. A child alleged to be a serious youthful
offender may be detained pending a court hearing in any of the
following places, prior to arraignment in metropolitan,
magistrate or district court:
(1) a detention facility, licensed by the
department, for children alleged to be delinquent children;
(2) any other suitable place, other than a
facility for the long-term care and rehabilitation of
delinquent children to which children adjudicated as delinquent
children may be confined pursuant to Section 32A-2-19 NMSA
1978, designated by the court that meets the standards for
detention facilities pursuant to the Children's Code and
federal law; or
(3) a county jail, if a facility in Paragraph
(1) or (2) of this subsection is not appropriate. In the event
that a child is detained in a jail, the director of the jail
shall presume that the child is vulnerable to victimization by
inmates within the adult population because of the child's age
and shall take measures to provide protection to the child.
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However, provision of protective measures shall not result in
diminishing a child's civil rights to less than those existing
for an incarcerated adult.
F. When a person who is eighteen years of age or
older is taken into custody and transported to an adult
facility on a juvenile warrant or an adult warrant or other
adult charges and an outstanding juvenile warrant exists,
notice shall be given to the children's court attorney and the
juvenile probation and parole office in the jurisdiction where
the juvenile warrant was issued within one day of the person
being taken into custody. The juvenile probation and parole
office shall give notice that the person has been taken into
custody to the children's court judge and the attorney who
represented the person in the juvenile proceeding.
G. In addition to the judicial review required by
Paragraph (3) of Subsection A of this section, a child detained
in an out-of-home placement pursuant to this section may
request judicial review of the appropriateness of the
placement."
SECTION 7. Section 32A-2-13 NMSA 1978 (being Laws 1993,
Chapter 77, Section 42, as amended) is amended to read:
"32A-2-13. DETENTION HEARING REQUIRED ON DETAINED
CHILDREN--PROBABLE CAUSE DETERMINATION--COURT DETERMINATION--
DISPOSITION.--
A. [When] If a child who has been taken into
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custody is not released but is detained:
(1) a judicial determination of probable cause
shall be made by a judge [or special master or magistrate ]
within forty-eight hours, including Saturdays, Sundays and
legal holidays, except for children taken into custody under an
arrest warrant pursuant to the Children's Court Rules. A
statement by a law enforcement officer, which shall include the
charges, may be the basis of a probable cause determination.
The probable cause determination shall be nonadversarial, may
be held in the absence of the child and counsel and may be
conducted by telephone. If the court finds no probable cause
to believe the child committed an offense, the child shall be
released;
(2) a petition shall be filed within
twenty-four hours from the time the child is taken into
custody, excluding Saturdays, Sundays and legal holidays, and
if not filed within the stated time, the child shall be
released; and
(3) a detention hearing shall be held within
twenty-four hours, excluding Saturdays, Sundays and legal
holidays, from the time of filing the petition to determine
whether continued detention is required pursuant to the
criteria established by the Children's Code. At the court's
discretion or at the request of any party, the court may permit
a detention hearing to be conducted by appropriate means of
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electronic communication. [provided that all hearings
conducted by electronic means shall be recorded and preserved
as part of the record, the child shall have legal
representation present with the child, no plea shall be allowed
to be taken via electronic communication and the court finds:
(a) that undue hardship will result from
conducting the hearing with all parties, including the child,
present in the courtroom; and
(b) that the hardship substantially
outweighs any prejudice or harm to the child that is likely to
result from the hearing being conducted by electronic means.
B. The judge may appoint one or more persons to
serve as special master on a full- or part-time basis for the
purpose of holding detention hearings. A juvenile probation
and parole officer shall not be appointed as a special master.
The judge shall approve all contracts with special masters and
shall fix their hourly compensation, subject to the approval of
the director of the administrative office of the courts.
C. ] B. Notice of the detention hearing, either oral
or written, stating the time, place and purpose of the hearing
shall be given by the person designated by the court to the
child's parents, guardian or custodian, if they can be found,
and to the child. The department shall be provided with
reasonable oral or written notification and an opportunity to
be heard. At any hearing held pursuant to this subsection, the
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department may appear as a party.
[D. ] C. At the commencement of the detention
hearing, the judge [or special master ] shall advise the parties
of their basic rights provided in the Children's Code and shall
appoint counsel, guardians and custodians, if appropriate.
[E. ] D. If the judge [or special master ] finds that
the child's detention is appropriate under the criteria
established by the Children's Code, the judge [or special
master] shall order detention in an appropriate facility in
accordance with the Children's Code.
[F. ] E. If the judge [or special master ] finds that
detention of the child is not appropriate under the criteria
established by the Children's Code, the judge [or special
master] shall order the release of the child, but, in so doing,
may order one or more of the following conditions to meet the
individual needs of the child:
(1) place the child in the custody of a
parent, guardian or custodian or under the supervision of an
agency agreeing to supervise the child;
(2) place restrictions on the child's travel,
association with other persons or place of abode during the
period of the child's release; or
(3) impose any other condition deemed
reasonably necessary and consistent with the criteria for
detaining children established by the Children's Code,
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including a condition requiring that the child return to
custody as required.
[G. ] F. An order releasing a child on any
conditions specified in this section may at any time be amended
to impose additional or different conditions of release or to
return the child to custody or detention for failure to conform
to the conditions originally imposed.
[H. ] G. At the detention hearing, all relevant and
material evidence helpful in determining the need for detention
may be admitted by the judge [or special master ] even though it
would not be admissible in a hearing on the petition.
[I. ] H. If the child is not released at the
detention hearing and a parent, guardian or custodian was not
notified of the hearing and did not appear or waive appearance
at the detention hearing, the judge [or special master ] shall
rehear the detention matter without unnecessary delay upon the
filing of an affidavit stating the facts and a motion for
rehearing.
[J.] I. If a child is not released at the detention
hearing, the child's detention may be subsequently reviewed by
the court or the court may review the child's detention in
conjunction with a pretrial conference.
[K.] J. If a child is not placed within ten days
after a disposition hearing, the child may be released and
placed under appropriate supervision, so long as the child does
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not pose a flight risk or substantial risk of harm to the
child's self or others."
SECTION 8. Section 32A-2-14 NMSA 1978 (being Laws 1993,
Chapter 77, Section 43, as amended) is amended to read:
"32A-2-14. BASIC RIGHTS.--
A. In addition to the rights provided by the
Delinquency Act, a child subject to the provisions of the
Delinquency Act is entitled to the same basic rights as an
adult, [except as otherwise provided in the Children's Code,
including rights provided by the Delinquency Act ] except as
otherwise provided in the Children's Code.
B. If after due notice to the parent, guardian or
custodian and after a hearing determining indigency, the
parent, guardian or custodian is declared indigent by the
court, the public defender shall represent the child. If the
court finds that the parent, guardian or custodian is
financially able to pay for an attorney but is unwilling to do
so, the court shall order the parent, guardian or custodian to
reimburse the state for public defender representation.
C. No person subject to the provisions of the
Delinquency Act who is alleged or suspected of being a
delinquent child shall be interrogated or questioned without
first advising the child of the child's constitutional rights
and securing a knowing, intelligent and voluntary waiver.
D. Before any statement or confession may be
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introduced at a trial or hearing when a child is alleged to be
a delinquent child, the state shall prove that the statement or
confession offered in evidence was elicited only after a
knowing, intelligent and voluntary waiver of the child's
constitutional rights was obtained.
E. In determining whether the child knowingly,
intelligently and voluntarily waived the child's rights, the
court shall consider the following factors:
(1) the age and education of the respondent;
(2) whether the respondent is in custody;
(3) the manner in which the respondent was
advised of the respondent's rights;
(4) the length of questioning and
circumstances under which the respondent was questioned;
(5) the condition of the quarters where the
respondent was being kept at the time of being questioned;
(6) the time of day and the treatment of the
respondent at the time of being questioned;
(7) the mental and physical condition of the
respondent at the time of being questioned; and
(8) whether the respondent had the counsel of
an attorney, friends or relatives at the time of being
questioned.
F. Notwithstanding any other provision to the
contrary, no confessions, statements or admissions may be
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introduced against a child under the age of thirteen years on
the allegations of the petition. There is a rebuttable
presumption that any confessions, statements or admissions made
by a child thirteen or fourteen years old to a person in a
position of authority are inadmissible.
G. An extrajudicial admission or confession made by
the child out of court is insufficient to support a finding
that the child committed the delinquent acts alleged in the
petition unless it is corroborated by other evidence.
H. The child and the parent, guardian or custodian
of the child shall be advised by the court or its
representative that the child shall be represented by counsel
at all stages of the proceedings on a delinquency petition,
including all post-dispositional court proceedings. If counsel
is not retained for the child or if it does not appear that
counsel will be retained, counsel shall be appointed for the
child.
I. A child under the age of thirteen alleged or
adjudicated to be a delinquent child shall not be fingerprinted
or photographed for identification purposes without obtaining a
court order.
J. The court, at any stage of the proceeding on a
petition under the Children's Code, may appoint a guardian ad
litem for a child who is a party if the child has no parent,
guardian or custodian appearing on behalf of the child or if
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the parent's, guardian's or custodian's interests conflict with
those of the child. A party to the proceeding or an employee
or representative of a party shall not be appointed as guardian
ad litem.
K. The court shall appoint a guardian for a child
if the court determines that the child does not have a parent
or a legally appointed guardian in a position to exercise
effective guardianship. No officer or employee of an agency
that is vested with the legal custody of the child shall be
appointed guardian of the child except when parental rights
have been terminated and the agency is authorized to place the
child for adoption.
L. A person afforded rights under the Delinquency
Act shall be advised of those rights at that person's first
appearance before the court on a petition under that act.
M. A serious youthful offender who is detained
prior to trial in [an adult ] a facility has a right to [bail ] a
hearing to consider or address conditions of release as
provided [under SCRA 1986, Rule 5-401 ] by supreme court rule .
A child held in a juvenile facility designated as a place of
detention prior to adjudication [does not have a right to bail
but] may be released pursuant to the provisions of the
Delinquency Act.
N. A child fourteen years of age or older who is
adjudicated as a youthful offender may waive the child's right
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to an amenability hearing and instead be sentenced as an adult.
[N.] O. The provisions of the Delinquency Act shall
not be interpreted to limit the right of a child to petition a
court for a writ of habeas corpus."
SECTION 9. Section 32A-2-17 NMSA 1978 (being Laws 1993,
Chapter 77, Section 46, as amended) is amended to read:
"32A-2-17. PREDISPOSITION STUDIES--REPORTS AND
EXAMINATIONS.--
A. After a petition has been filed and either a
finding with respect to the allegations of the petition has
been made or a notice of intent to admit the allegations of the
petition has been filed, the court may direct that a
predisposition study and report to the court be made in writing
by the department or an appropriate agency designated by the
court concerning the child, the family of the child, the
environment of the child and any other matters relevant to the
need for treatment or to appropriate disposition of the case.
If directed by the court , the following predisposition reports
shall be provided to the parties and the court five days before
actual disposition or sentencing:
(1) the adult probation and parole division of
the corrections department shall prepare a predisposition
report for a serious youthful offender;
(2) the department shall prepare a
predisposition report for a serious youthful offender who is
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convicted of an offense other than first degree murder;
(3) the department shall prepare a
predisposition report for a youthful offender concerning the
youthful offender's amenability to treatment; and if:
(a) the court determines that a juvenile
disposition is appropriate, the department shall prepare a
subsequent predisposition report; or
(b) the court makes the findings
necessary to impose an adult sentence pursuant to Section
32A-2-20 NMSA 1978, the adult probation and parole division of
the corrections department shall prepare a subsequent
predisposition report; and
(4) the department shall prepare a
predisposition report for a delinquent offender upon the
court's request.
B. [Where ] If there are indications that the child
may have a mental disorder or developmental disability, the
court, on motion by the children's court attorney or that of
counsel for the child, may order the child to be examined at a
suitable place by a physician or psychiatrist, a licensed
psychologist, a licensed professional clinical counselor or a
licensed independent social worker prior to a hearing on the
merits of the petition. An examination made prior to the
hearing or as a part of the predisposition study and report
shall be conducted on an outpatient basis, unless the court
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finds that placement in a hospital or other appropriate
facility is necessary.
C. The court, after a hearing, may order
examination by a physician or psychiatrist, a licensed
psychologist or a licensed professional clinical counselor or a
licensed independent social worker of a parent or custodian
whose ability to care for or supervise a child is an issue
before the court.
D. The court may order that a child adjudicated as
a delinquent child be administered a predispositional
evaluation by a professional designated by the department for
purposes of diagnosis, with direction that the court be given a
report indicating what disposition appears most suitable when
the interests of the child and the public are considered. The
evaluation shall be completed within fifteen days of the
court's order and the preference shall be for performing the
evaluation in the child's community.
E. If a child is detained for purposes of
performing a predispositional evaluation, it shall be completed
within fifteen days and in no event shall a child be detained
for more than fifteen days within a three-hundred-sixty-five-
day period for a predispositional evaluation, unless for good
cause shown."
SECTION 10. Section 32A-2-18 NMSA 1978 (being Laws 1993,
Chapter 77, Section 47, as amended) is amended to read:
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"32A-2-18. JUDGMENT--NONCRIMINAL NATURE--
NONADMISSIBILITY.--
A. The court shall enter a judgment setting forth
the court's findings and disposition in the proceeding. A
judgment in proceedings on a petition under the Delinquency Act
resulting in a juvenile disposition shall not be deemed a
conviction of crime nor shall it impose any civil disabilities
ordinarily resulting from conviction of a crime nor shall it
operate to disqualify the child in any civil service
application or appointment. The juvenile disposition of a
child and any evidence given in a hearing in court shall not be
admissible as evidence against the child in any case or
proceeding in any other tribunal whether before or after
reaching the age of majority, except in sentencing proceedings
[after conviction of a felony and then only for the purpose of
a presentence study and report ] or a hearing held pursuant to
Article 2, Section 13 of the constitution of New Mexico or in
accordance with supreme court rule to consider or address
conditions of release .
B. If a judgment resulting from a youthful offender
or serious youthful offender proceeding under the Delinquency
Act results in an adult sentence, a record of the judgment
shall be admissible in any other case or proceeding in any
other court involving the youthful offender or serious youthful
offender.
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C. If a judgment on a proceeding under the
Delinquency Act results in an adult sentence, the determination
of guilt at trial becomes a conviction for purposes of the
Criminal Code."
SECTION 11. Section 32A-2-19 NMSA 1978 (being Laws 1993,
Chapter 77, Section 48, as amended) is amended to read:
"32A-2-19. DISPOSITION OF AN ADJUDICATED DELINQUENT
OFFENDER.--
A. At the conclusion of the dispositional hearing,
the court may make and include in the dispositional judgment
its findings on the following:
(1) the interaction and interrelationship of
the child with the child's parents and siblings and any other
person who may significantly affect the child's best interests;
(2) the child's adjustment to the child's
home, school and community;
(3) the mental and physical health of all
individuals involved, including consideration of such factors
as the child's brain development, maturity, trauma history and
disability;
(4) the wishes of the child as to the child's
custodian;
(5) the wishes of the child's parents as to
the child's custody;
(6) whether there exists a relative of the
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child or other individual who, after study by the department,
is found to be qualified to receive and care for the child;
(7) the availability of services recommended
in the predisposition report; and
(8) the ability of the parents to care for the
child in the home.
B. If a child is found to be delinquent, the court
may enter its judgment making any of the following dispositions
for the supervision, care and rehabilitation of the child:
(1) transfer legal custody to the department
or an agency responsible for the care and rehabilitation of
delinquent children, which shall receive the child at a
facility designated by the secretary of the department as a
juvenile reception facility. The department shall thereafter
determine the appropriate placement, supervision and
rehabilitation program for the child. The judge may include
recommendations for placement of the child. Commitments are
subject to limitations and modifications set forth in Section
32A-2-23 NMSA 1978. The court has discretion to consider the
child's unique circumstances and history when imposing
probation or commitment and may impose probation or commitment
for any period up to the date the child reaches twenty-five
years of age; [The types of commitments include:
(a) a short-term commitment of one year
in a facility for the care and rehabilitation of adjudicated
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delinquent children. No more than nine months shall be served
at the facility and no less than ninety days shall be served on
supervised release, unless: 1) a petition to extend the
commitment has been filed prior to the commencement of
supervised release; 2) the commitment has been extended
pursuant to Section 32A-2-23 NMSA 1978; or 3) supervised
release is revoked pursuant to Section 32A-2-25 NMSA 1978;
(b) a long-term commitment for no more
than two years in a facility for the care and rehabilitation of
adjudicated delinquent children. No more than twenty-one
months shall be served at the facility and no less than ninety
days shall be served on supervised release, unless: 1)
supervised release is revoked pursuant to Section 32A-2-25 NMSA
1978; or 2) the commitment is extended pursuant to Section
32A-2-23 NMSA 1978;
(c) if the child is a delinquent
offender who committed one of the criminal offenses set forth
in Subsection J of Section 32A-2-3 NMSA 1978, a commitment to
age twenty-one, unless sooner discharged; or
(d) if the child is a youthful offender,
a commitment to age twenty-one, unless sooner discharged;
(2) place the child on probation under those
conditions and limitations as the court may prescribe;
(3)] (2) place the child in a local detention
facility that has been certified in accordance with the
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provisions of Section 32A-2-4 NMSA 1978 for a period not to
exceed [fifteen] thirty days within a three hundred sixty-five
day time period; or if a child is found to be delinquent solely
on the basis of Paragraph (3) of Subsection A of Section
32A-2-3 NMSA 1978, the court shall only enter a judgment
placing the child on probation or ordering restitution or both;
or
[(4)] (3) if a child is found to be delinquent
solely on the basis of Paragraph (2), (3) or (4) of Subsection
A of Section 32A-2-3 NMSA 1978, the court may make any
disposition provided by this section and may enter its judgment
placing the child on probation and, as a condition of
probation, transfer custody of the child to the department for
a period not to exceed six months without further order of the
court; provided that this transfer shall not be made unless the
court first determines that the department is able to provide
or contract for adequate and appropriate treatment for the
child and that the treatment is likely to be beneficial.
C. [When] If the child is an Indian child, the
Indian child's cultural needs shall be considered in the
dispositional judgment and reasonable access to cultural
practices and traditional treatment shall be provided.
D. A child found to be delinquent shall not be
committed or transferred to a penal institution or other
facility used for the execution of sentences of persons
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convicted of crimes, unless the child reaches eighteen years of
age.
E. Whenever the court vests legal custody in an
agency, institution or department, it shall transmit with the
dispositional judgment copies of the clinical reports,
predisposition study and report and other information it has
pertinent to the care and treatment of the child.
F. Prior to any child being placed in the custody
of the department, the department shall be provided with
reasonable oral or written notification and an opportunity to
be heard.
G. In addition to any other disposition pursuant to
Subsection B of this section, the court may make an abuse or
neglect report for investigation and proceedings as provided
for in the Abuse and Neglect Act. The report may be made to a
local law enforcement agency, the department or a tribal law
enforcement or social service agency for an Indian child
residing in Indian country.
H. In addition to any other disposition pursuant to
this section or any other penalty provided by law, if a child
who is fifteen years of age or older is adjudicated delinquent
on the basis of Paragraph (2), (3) or (4) of Subsection A of
Section 32A-2-3 NMSA 1978, the child's driving privileges may
be denied or the child's driver's license may be revoked for a
period of ninety days. For a second or a subsequent
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adjudication, the child's driving privileges may be denied or
the child's driver's license revoked for a period of one year.
Within twenty-four hours of the dispositional judgment, the
court may send to the motor vehicle division of the taxation
and revenue department the order adjudicating delinquency.
Upon receipt of an order from the court adjudicating
delinquency, the director of the motor vehicle division of the
taxation and revenue department may revoke or deny the
delinquent's driver's license or driving privileges. Nothing
in this section may prohibit the delinquent from applying for a
limited driving privilege pursuant to Section 66-5-35 NMSA 1978
or an ignition interlock license pursuant to the Ignition
Interlock Licensing Act, and nothing in this section precludes
the delinquent's participation in an appropriate educational,
counseling or rehabilitation program.
I. In addition to any other disposition pursuant to
this section or any other penalty provided by law, when a child
is adjudicated delinquent on the basis of Paragraph (6) of
Subsection A of Section 32A-2-3 NMSA 1978, the child shall
perform the mandatory community service set forth in Section
30-15-1.1 NMSA 1978. When a child fails to completely perform
the mandatory community service, the name and address of the
child's parent or legal guardian shall be published in a
newspaper of general circulation, accompanied by a notice that
the parent or legal guardian is the parent or legal guardian of
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a child adjudicated delinquent for committing graffiti."
SECTION 12. Section 32A-2-20 NMSA 1978 (being Laws 1993,
Chapter 77, Section 49, as amended) is amended to read:
"32A-2-20. DISPOSITION OF A YOUTHFUL OFFENDER AND SERIOUS
YOUTHFUL OFFENDER.--
A. The court has the discretion to invoke either an
adult sentence or juvenile sanctions on a youthful offender.
The children's court attorney shall file a notice of intent to
invoke an adult sentence within ten working days of the filing
of the petition; provided that the court may extend the time
for filing of the notice of intent to invoke an adult sentence,
for good cause shown, prior to the adjudicatory hearing. A
preliminary hearing by the court or a hearing before a grand
jury shall be held, within ten days after the filing of the
intent to invoke an adult sentence, to determine whether
probable cause exists to support the allegations contained in
the petition.
B. If the children's court attorney has filed a
notice of intent to invoke an adult sentence and the child is
adjudicated as a youthful offender, the court shall make the
following findings in order to invoke an adult sentence:
(1) the child is not amenable to treatment or
rehabilitation as a child in available facilities; and
(2) the child is not eligible for commitment
to an institution for children with developmental disabilities
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or mental disorders.
C. In making the findings set forth in Subsection B
of this section, the judge shall consider the following
factors, but may not weigh one factor more heavily than
another:
(1) the seriousness of the alleged offense;
(2) whether the alleged offense was committed
in an aggressive, violent, premeditated or willful manner;
(3) whether a firearm was used to commit the
alleged offense;
(4) whether the alleged offense was against
persons or against property [greater weight being given to
offenses against persons, especially if personal injury
resulted];
(5) the maturity of the child as determined by
consideration of the child's home, environmental situation,
social and emotional health, pattern of living, brain
development, trauma history and disability;
(6) the record and previous history of the
child;
(7) the prospects for adequate protection of
the public and the likelihood of reasonable rehabilitation of
the child by the use of procedures, services and facilities
currently available; and
(8) any other relevant factor; provided that
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factor is stated on the record.
D. If a child has previously been sentenced as an
adult pursuant to the provisions of this section, there shall
be a rebuttable presumption that the child is not amenable to
treatment or rehabilitation as a child in available facilities.
E. If the court invokes an adult sentence, the
court may sentence the child to less than, but shall not
exceed, the mandatory adult sentence. A youthful offender
given an adult sentence shall be treated as an adult offender
and shall be transferred to the legal custody of an agency
responsible for incarceration of persons sentenced to adult
sentences. This transfer terminates the jurisdiction of the
court over the child with respect to the delinquent acts
alleged in the petition. A child given an adult sentence shall
not be sentenced to life imprisonment without the possibility
of release or parole.
F. If a juvenile disposition is appropriate, the
court shall follow the provisions set forth in Section 32A-2-19
NMSA 1978. A youthful offender may be subject to extended
commitment in the care of the department until the age of
twenty-one, pursuant to the provisions of Section 32A-2-23 NMSA
1978.
G. A child fourteen years of age or older who was
charged [with first degree murder ] as a serious youthful
offender but [not convicted of first degree murder and ] was
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found to have committed a youthful offender offense as set
forth in Subsection J of Section 32A-2-3 NMSA 1978 is subject
to the dispositions set forth in this section.
H. A child fourteen years of age or older who was
charged [with first degree murder ] as a serious youthful
offender but was found to have committed a delinquent act that
is neither [first degree murder ] a serious youthful offender
offense as set forth in Subsection H of Section 32A-2-3 NMSA
1978 nor a youthful offender offense as set forth in Subsection
J of Section 32A-2-3 NMSA 1978 shall be adjudicated as a
delinquent and is subject to the dispositions set forth in
Section 32A-2-19 NMSA 1978; provided that the case shall be
transferred to the children's court for disposition ."
SECTION 13. Section 32A-2-22 NMSA 1978 (being Laws 1993,
Chapter 77, Section 51, as amended) is amended to read:
"32A-2-22. CONTINUANCE UNDER SUPERVISION WITHOUT
JUDGMENT--CONSENT DECREE--DISPOSITION.--
A. At any time after the filing of a delinquency
petition and before the entry of a judgment, the court may, on
motion of the children's court attorney or that of counsel for
the child, suspend the proceedings and continue the child under
supervision in the child's own home under terms and conditions
negotiated with probation services and agreed to by [all the
parties affected] the state and the child's defense attorney
and approved by the court . The court's order continuing the
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child under supervision under this section shall be known as a
"consent decree". An admission of some or all of the
allegations stated in the delinquency petition shall not be
required for a consent decree order.
B. If the child objects to a consent decree, the
court shall proceed to findings, adjudication and disposition
of the case. If the child does not object but an objection is
made by the children's court attorney after consultation with
probation services, the court shall, after considering the
objections and the reasons given, proceed to determine whether
it is appropriate to enter a consent decree and may, in its
discretion, enter the consent decree.
C. A consent decree shall remain in force for six
months unless the child is discharged sooner by probation
services. Prior to the expiration of the six-month period and
upon the application of probation services or any other agency
supervising the child under a consent decree, the court may
extend the decree for an additional six months in the absence
of objection to extension by the child. If the child objects
to the extension, the court shall hold a hearing and make a
determination on the issue of extension; provided that a
consent decree shall not be available to a child charged as a
youthful offender or serious youthful offender .
D. If either prior to discharge by probation
services or expiration of the consent decree the child
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allegedly fails to fulfill the terms of the decree, the
children's court attorney may file a petition to revoke the
consent decree. Proceedings on the petition shall be conducted
in the same manner as proceedings on petitions to revoke
probation. If the child is found to have violated the terms of
the consent decree, the court may:
(1) extend the period of the consent decree;
or
(2) make any other disposition that would have
been appropriate in the original proceeding.
E. A child who is discharged by probation services
or who completes a period under supervision without
reinstatement of the original delinquency petition shall not
again be proceeded against in any court for the same offense
alleged in the petition or an offense based upon the same
conduct and the original petition shall be dismissed with
prejudice. Nothing in this subsection precludes a civil suit
against the child for damages arising from the child's conduct.
F. A judge who pursuant to this section elicits or
examines information or material about a child that would be
inadmissible in a hearing on the allegations of the petition
shall not, over the objection of the child, participate in any
subsequent proceedings on the delinquency if:
(1) a consent decree is denied and the
allegations in the petition remain to be decided in a hearing
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where the child denies the allegations; or
(2) a consent decree is granted but the
delinquency petition is subsequently reinstated.
G. If a consent decree has been entered pursuant to
the filing of a delinquency petition based on Paragraph (2),
(3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978 for a
child who is fifteen years of age or older, a condition of the
consent decree agreement may be the denial of the child's
driving privileges or the revocation of the child's driver's
license for a period of ninety days. For the second or
subsequent adjudication, the child's driving privileges may be
denied or the child's driver's license revoked for a period of
one year. Within twenty-four hours of the entry by the court
of a decree consenting to the revocation or denial of the
child's driver's license or driving privileges, the court shall
send the decree to the motor vehicle division of the taxation
and revenue department. Upon receipt of the decree from the
court consenting to the denial or revocation of the child's
driving privileges or driver's license, the director of the
motor vehicle division of the taxation and revenue department
shall revoke or deny the delinquent child's driver's license or
driving privileges. Nothing in this section shall prohibit the
delinquent child from applying for a limited driving privilege
pursuant to Section 66-5-35 NMSA 1978 or an ignition interlock
license pursuant to the Ignition Interlock Licensing Act, and
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nothing in this section precludes the delinquent child's
participation in an appropriate educational, counseling or
rehabilitation program."
SECTION 14. Section 32A-2-23 NMSA 1978 (being Laws 1993,
Chapter 77, Section 52, as amended) is amended to read:
"32A-2-23. LIMITATIONS ON DISPOSITIONAL JUDGMENTS--
MODIFICATION--TERMINATION OR EXTENSION OF COURT ORDERS.--
A. A judgment transferring legal custody of an
adjudicated delinquent child to an agency responsible for the
care and rehabilitation of delinquent children divests the
court of jurisdiction at the time of transfer of custody,
unless the transfer of legal custody is for a commitment not
exceeding fifteen days pursuant to the provisions of Section
32A-2-19 NMSA 1978, in which case the court retains
jurisdiction.
B. A judgment of probation or protective
supervision shall remain in force for an indeterminate period
not to exceed the term of commitment from the date entered.
C. A child shall be released by an agency and
probation or supervision shall be terminated by juvenile
probation and parole services or the agency providing
supervision when it appears that the purpose of the order has
been achieved before the expiration of the period of the
judgment. A release or termination and the reasons therefor
shall be reported promptly to the court in writing by the
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releasing authority.
[D. Prior to the expiration of a short-term
commitment of one year, as provided for in Section 32A-2-19
NMSA 1978, the court may extend the judgment for up to one six-
month period if the court finds that the extension is necessary
to safeguard the welfare of the child or the public safety. If
a short-term commitment is extended, the mandatory ninety-day
supervised release, as required by Section 32A-2-19 NMSA 1978,
shall be included in the extension. Notice and hearing are
required for any extension of a juvenile's commitment.
E. Prior to the expiration of a long-term
commitment, as provided for in Section 32A-2-19 NMSA 1978, the
court may extend the judgment for additional periods of one
year until the child reaches the age of twenty-one if the court
finds that the extension is necessary to safeguard the welfare
of the child or the public safety. If a long-term commitment
is extended, the mandatory ninety-day supervised release, as
required by Section 32A-2-19 NMSA 1978, shall be included in
the extension. Notice and hearing are required for any
extension of a juvenile's commitment.
F. ] D. Prior to the expiration of a judgment of
probation or commitment , the court may exercise discretion and
extend the judgment, based on the child's unique circumstances
and history, for an additional period [of one year until ] up to
the date the child reaches [the age of twenty-one ] twenty-five
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years of age if the court finds that the extension is necessary
to protect the community or to safeguard the welfare of the
child.
[G.] E. The court may dismiss a motion if it finds
after preliminary investigation that the motion is without
substance. If the court is of the opinion that the matter
should be reviewed, it may, upon notice to all necessary
parties, proceed to a hearing in the manner provided for
hearings on petitions alleging delinquency. The court may
terminate a judgment if it finds that the child is no longer in
need of care, supervision or rehabilitation or it may enter a
judgment extending or modifying the original judgment if it
finds that action necessary to safeguard the child or the
public interest.
[H.] F. A child may make a motion to modify a
children's court or adult disposition within thirty days of the
judge's decision. If the court is of the opinion that the
matter should be reviewed, it may, upon notice to all necessary
parties, proceed to a hearing in the manner provided for
hearings on petitions alleging delinquency.
[I.] G. The department may seek a bench warrant
from the court when the child absconds from supervised
release."
SECTION 15. Section 32A-2-23.1 NMSA 1978 (being Laws
2009, Chapter 239, Section 23) is amended to read:
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"32A-2-23.1. RELEASE ELIGIBILITY.--
[A. The department shall have exclusive
jurisdiction and authority to release an adjudicated delinquent
child during the term of the child's commitment, consistent
with the provisions of the Victims of Crime Act. In
determining whether to release a child, the department shall
give due consideration to public safety, the extent to which
the child has been rehabilitated, the adequacy and suitability
of the proposed release plan and the needs and best interests
of the child, including the child's need for behavioral health
or medical services that are not available in facilities for
adjudicated delinquent children.
B.] A. The decision to grant or deny release shall
be made by the secretary of children, youth and families or the
secretary's designee. The department may impose such
conditions of release as it deems appropriate.
[C. A child is eligible for release any time after
the entry of a judgment transferring legal custody to the
department, and the department may consider a reasonable
request for release from the child at any time sixty days after
the child has been committed.
D.] B. In the event release for a child is denied
by the department after release is recommended for the child by
the juvenile public safety advisory board, or release is
approved by the department after the board has recommended that
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the child not be released, within ten days the board may
request a review of the decision by the court of the judicial
district from which legal custody of the child was transferred,
and the department shall transmit the child's records to the
court. The court shall have jurisdiction to review the matter
without conducting a formal hearing and to issue an order that
either denies or grants release to the child. If the board
requests review under this section, the child shall not be
released until such time as the court has issued a decision.
If the board does not petition the district court for review of
the department's decision to grant or deny release within ten
days of the department's decision, the department's decision
shall be final, and the department shall release the child or
continue the commitment in accordance with the terms of its
decision.
[E.] C. The secretary of children, youth and
families or the secretary's designee may review the case of any
child upon the child's or the juvenile public safety advisory
board's reasonable request at any time after release is
denied."
SECTION 16. Section 32A-2-24 NMSA 1978 (being Laws 1993,
Chapter 77, Section 53, as amended) is amended to read:
"32A-2-24. PROBATION REVOCATION--DISPOSITION.--
A. A child on probation incident to an adjudication
as a delinquent child who violates a term of the probation may
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be proceeded against in a probation revocation proceeding. A
proceeding to revoke probation shall be begun by filing in the
original proceeding a petition styled as a "petition to revoke
probation". Petitions to revoke probation shall be screened,
reviewed and prepared in the same manner and shall contain the
same information as petitions alleging delinquency. Procedures
of the Delinquency Act regarding taking into custody and
detention shall apply. The petition shall state the terms of
probation alleged to have been violated and the factual basis
for these allegations.
B. The standard of proof in probation revocation
proceedings shall be [evidence beyond a reasonable doubt ]
preponderance of the evidence and the hearings shall be before
the court without a jury. In all other respects, proceedings
to revoke probation shall be governed by the procedures, rights
and duties applicable to proceedings on a delinquency petition.
If a child is found to have violated a term of the child's
probation, the court may extend the period of probation or make
any other judgment or disposition that would have been
appropriate in the original disposition of the case."
SECTION 17. Section 32A-2-26 NMSA 1978 (being Laws 1993,
Chapter 77, Section 55, as amended) is amended to read:
"32A-2-26. SEALING OF RECORDS.--
A. On motion by or on behalf of a person who has
been the subject of a delinquency petition or on the court's
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own motion, the court shall vacate its findings, orders and
judgments on the petition and order the legal and social files
and records of the court, probation services and any other
agency in the case sealed. If requested in the motion, the
court shall also order law enforcement files and records
sealed. An order sealing records and files shall be entered if
the court finds that:
(1) two years have elapsed since the final
release of the person from legal custody and supervision or two
years have elapsed since the entry of any other judgment not
involving legal custody or supervision;
(2) the person has not, within the two years
immediately prior to filing the motion, been convicted of a
felony or of a misdemeanor involving moral turpitude or been
found delinquent by a court and no proceeding is pending
seeking such a conviction or finding; and
(3) the person is eighteen years of age or
older or the court finds that good cause exists to seal the
records prior to the child's eighteenth birthday.
B. Reasonable notice of the motion shall be given
to:
(1) the children's court attorney;
(2) the authority granting the release;
(3) the law enforcement officer, department
and central depository having custody of the law enforcement
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files and records; and
(4) any other agency having custody of records
or files subject to the sealing order.
C. Upon the entry of the sealing order, the
proceedings in the case shall be treated as if they never
occurred and all index references shall be deleted. The court,
law enforcement officers and departments and agencies shall
reply, and the person may reply, to an inquiry that no record
exists with respect to the person. Copies of the sealing order
shall be sent to each agency or official named in the order.
D. Inspection of the files and records or the
release of information in the records included in the sealing
order may thereafter be permitted by the court only:
(1) upon motion by the person who is the
subject of the records and only to those persons named in the
motion; and
(2) in its discretion, in an individual case,
to any clinic, hospital or agency that has the person under
care or treatment or to other persons engaged in fact finding
or research.
E. Any finding of delinquency or need of services
or conviction of a crime subsequent to the sealing order may at
the court's discretion be used by the court as a basis to set
aside the sealing order.
F. A court may set aside a sealing order for the
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juvenile disposition of a youthful offender and any evidence
given in a hearing in court for a youthful offender for the
purpose of considering the setting of bail or other conditions
of release of a person charged with a felony whether charged as
an adult or a juvenile.
G. A child who has been the subject of a petition
filed pursuant to the provisions of the Delinquency Act shall
be notified in writing by the department when the child reaches
the age of eighteen or at the expiration of legal custody and
supervision, whichever occurs later, that the department's
records have been sealed and that the court, the children's
court attorney, the child's attorney and the referring law
enforcement agency have been notified that the child's records
are subject to sealing.
H. The department shall seal the child's files and
records when the child reaches the age of eighteen or at the
expiration of the disposition, whichever occurs later. The
department shall notify the children's court attorney, the
child's attorney and the referring law enforcement agency that
the child's records are subject to sealing.
I. Youthful offender records sealed pursuant to
Subsection H of this section may be unsealed by the court along
with any evidence given in a hearing in court for a youthful
offender for the purpose of considering the setting of bail or
other conditions of release of a person charged with a felony,
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whether charged as an adult or juvenile.
J. A child who is determined by the court not to be
a delinquent offender shall have the child's files and records
in the instant proceeding automatically sealed by the court
upon motion by the children's court attorney at the conclusion
of the proceedings.
K. After sealing, the department may store and use
a person's records for research and reporting purposes, subject
to the confidentiality provisions of Section 32A-2-32 NMSA 1978
and other applicable federal and state laws.
L. Notwithstanding the provisions of Subsections A
through K of this section, only with prior notice to the court,
a party may reference a juvenile record and the contents of a
juvenile record for the purposes of a hearing held in
accordance with Article 2, Section 13 of the constitution of
New Mexico, a hearing held pursuant to supreme court rule to
consider or address conditions of release or a sentencing
hearing. A party may reference the existence of a juvenile
record in written pleadings but may not disclose the contents
of the juvenile record unless otherwise allowed by law. "
SECTION 18. REPEAL.--Section 32A-2-32.1 NMSA 1978 (being
Laws 2007, Chapter 96, Section 1) is repealed.
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