HOUSE BILL 1040
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Rick Miera
AN ACT
RELATING TO CHILDREN; AMENDING A CHILDREN'S MENTAL HEALTH PROVISION OF THE DELINQUENCY CODE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 32A-2-21 NMSA 1978 (being Laws 1993, Chapter 77, Section 50, as amended) is amended to read:
"32A-2-21. DISPOSITION OF A CHILD WITH A MENTAL DISORDER OR DEVELOPMENTAL DISABILITY IN A DELINQUENCY PROCEEDING.--
A. If in a hearing at any stage of a proceeding on a delinquency petition the evidence indicates that the child has or may have a mental disorder or developmental disability, the court may:
(1) order the child detained if appropriate under the criteria established pursuant to the provisions of the Delinquency Act; and
(2) [initiate proceedings for the involuntary placement of the child as a minor with a mental disorder or developmental disability] request the children's court attorney to petition for that child's involuntary residential placement for mental health or developmental disability services pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.
B. If the child is placed for residential treatment or habilitation pursuant to the Children's Mental Health and Developmental Disabilities Act, the department shall retain legal custody during the period of involuntary placement or until further order of the court.
C. If a child is committed to a psychiatric hospital for treatment or habilitation and in the event that the department should be required to pay more than four hundred dollars ($400) per day because of the individualized treatment plan, the annual costs over four hundred dollars ($400) per child per day will be reported annually by the department to the legislative finance committee.
D. The child may remain in the residential treatment or habilitation facility pending the disposition of the delinquency petition.
E. When a child in departmental custody needs involuntary placement for residential mental health or developmental disability services as a result of a mental disorder or developmental disability, the department shall request the children's court attorney to petition for that child's placement pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.
F. A child subject to the provisions of the Delinquency Act who receives treatment in a residential treatment or habilitation program shall enjoy all the substantive and procedural rights set forth in the Children's Mental Health and Developmental Disabilities Act.
G. A child's competency to stand trial or participate in [his] the child's own defense may be raised by a party at any time during a proceeding. If the child has been accused of an act that would be considered a misdemeanor if the child were an adult and the child is found to be incompetent to stand trial, the court shall dismiss the petition with prejudice and may recommend that the children's court attorney initiate proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. In all other cases, the court shall stay the proceedings until the child is competent to stand trial; provided that a petition shall not be stayed for more than one year. The court may order treatment to enable the child to attain competency to stand trial and may amend the conditions of release pursuant to Sections 32A-2-11 and 32A-2-13 NMSA 1978. The child's competency to stand trial shall be reviewed every ninety days for up to one year. The court shall dismiss the petition without prejudice if, at any time during the year, the court finds that a child cannot be treated to competency or if, after one year, the court determines that a child is incompetent to stand trial or participate in [his] the child's own defense. Upon dismissal, the court may recommend that the children's court attorney initiate proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.
H. [Involuntary residential treatment shall only occur pursuant to] No child shall be ordered for involuntary treatment without having been afforded all of the substantive and procedural protections set forth in the provisions of the Children's Mental Health and Developmental Disabilities Act.
I. No treatment guardian shall be appointed for a minor child unless the minor child is a resident of a residential treatment or habilitation program as defined in Section 32A-6-2 NMSA 1978. The appointment of a treatment guardian for a minor child shall only occur pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.
J. No proceeding under the Delinquency Act shall be combined with a proceeding under the Children's Mental Health and Developmental Disabilities Act."
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