HB0540

HOUSE BILL 540

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Patricio Ruiloba

AN ACT

RELATING TO JUVENILE JUSTICE; REVISING DEFINITIONS AND PROCEDURES IN THE DELINQUENCY ACT; REVISING DUTIES OF THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. 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, 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;

(d) receiving or transferring of a stolen vehicle or motor vehicle;

(e) homicide by vehicle;

(f) injuring or tampering with a vehicle;

(g) altering or changing of an engine number or other vehicle identification numbers;

(h) altering or forging of a driver's license or permit or any making of a fictitious license or permit;

(i) reckless driving;

(j) driving with a suspended or revoked license; or

(k) 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":

(a) 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"]; and

(b) does not include an establishment, as defined in regulations promulgated by the director of the special investigations [division] unit of the department of public safety, that serves only hamburgers, sandwiches, salads [and] or other fast foods;

(3) a violation of Section 30-29-2 NMSA 1978, regarding the illegal use of a glue, aerosol spray product or 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; or

(7) a violation of an order of protection issued pursuant to the provisions of the Family Violence Protection Act;

B. "delinquent child" means a child ten years of age or older 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 court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child;

E. "diversion" means a program, service or intervention strategy that:

(1) may include requirements or conditions that a child must meet to successfully complete diversion; and

(2) serves as an alternative to the filing of a formal petition in connection with an allegation of delinquency against the child;

[E.] F. "felony" means an act that would be a felony if committed by an adult;

[F.] G. "misdemeanor" means an act that would be a misdemeanor or petty misdemeanor if committed by an adult;

[G.] H. "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;

I. "risk assessment":

(1) means an evaluation performed using the validated risk assessment tool adopted by the department that uses a currently accepted standard of assessment to determine the appropriate disposition of a child's case and the appropriate level, length and type of supervision and services for a child; and

(2) does not mean a "detention risk assessment instrument";

J. "risk screening" means an evaluation performed using the validated risk screening tool adopted by the department that uses a currently accepted standard of assessment to determine whether a child who is the subject of a complaint alleging delinquency is eligible for diversion;

[H.] K. "serious youthful offender" means an individual fifteen 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;

L. "status offense" means any offense or violation not defined as a "delinquent act" in Subsection A of this section;

[I.] M. "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]

N. "technical violation" means an act that violates the terms or conditions imposed as part of a child's juvenile probation or supervised release but that does not constitute a new delinquent act; and

[J.] O. "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;

(b) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

(d) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

(e) aggravated battery against a household member, as provided in Subsection C of Section 30-3-16 NMSA 1978;

(f) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;

(g) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

(h) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

(i) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(j) robbery, as provided in Section

30-16-2 NMSA 1978;

(k) aggravated burglary, as provided in Section 30-16-4 NMSA 1978;

(l) aggravated arson, as provided in Section 30-17-6 NMSA 1978; or

(m) abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978;

(2) fourteen to eighteen years of age at the time of the offense, who is adjudicated for any felony offense and who has had three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense. 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. Successful completion of consent decrees [are] is not 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 2. Section 32A-2-5 NMSA 1978 (being Laws 1993, Chapter 77, Section 34, as amended) is amended to read:

"32A-2-5. JUVENILE PROBATION [AND PAROLE] SERVICES--ESTABLISHMENT--JUVENILE PROBATION [AND PAROLE] OFFICERS--POWERS AND DUTIES.--

A. Juvenile probation [and parole] services shall be provided by the department.

B. [To carry out the objectives and provisions of the Delinquency Act, but subject to its limitations] The department [has the power and duty to] shall:

(1) receive and examine complaints and allegations that a child is a delinquent child for the purpose of considering [beginning] whether to start a proceeding pursuant to the [provisions of the] Delinquency Act;

(2) as appropriate, make case referrals for services [as appear appropriate or desirable];

(3) conduct a risk assessment for each child who is the subject of a complaint alleging delinquency and of a related petition and provide the results of the assessment and an according recommended level and length of supervision to the parties of a case and to the court, in accordance with Section 32A-2-17 NMSA 1978;

[(3)] (4) make reports and recommendations to the court on the results of predisposition studies, screenings and assessments [and submit reports and recommendations to the court];

[(4)] (5) supervise and assist a child placed on probation or supervised release or under supervision by court order or by the department;

[(5)] (6) give notice to any individual who has been the subject of a petition filed pursuant to the provisions of the Delinquency Act of the sealing of that individual's records in accordance with that act;

[(6)] (7) informally dispose of up to three referrals for misdemeanor [charges brought against] offenses made for a child within two years;

[(7)] (8) give notice to the children's court attorney of the receipt of any felony complaint and of any recommended adjustment of [such] that felony complaint;

[(8)] (9) identify an Indian child for the purpose of contacting the Indian child's tribe in delinquency cases; and

[(9)] (10) contact an Indian child's tribe to consult and exchange information for the purpose of preparing a predisposition report when commitment or placement of an Indian child is contemplated or has been ordered and indicate in the report the name of the person contacted in the Indian child's tribe and the results of the contact.

C. A juvenile probation [and parole] officer does not have the powers of a law enforcement officer. A juvenile probation [and parole] officer may [take] authorize the taking into physical custody and [place] placing in detention, subject to application of a detention risk assessment instrument, a child who is under supervision as a delinquent child or a child who is under supervision as a youthful offender when there is reasonable cause to believe [that the child has violated the conditions of the child's probation] either that the child poses a substantial risk of harm to the child's self or others or that the child may leave the jurisdiction of the court. Taking a child into custody under this subsection is subject to and shall proceed in accordance with the provisions of the Delinquency Act relating to custody and detention procedures and criteria."

SECTION 3. Section 32A-2-7 NMSA 1978 (being Laws 1993, Chapter 77, Section 36, as amended) is amended to read:

"32A-2-7. COMPLAINTS--REFERRAL--PRELIMINARY INQUIRY--DIVERSION--NOTICE--TIME WAIVER.--

A. Complaints alleging delinquency shall be referred to juvenile probation services, [which] and probation services shall conduct a preliminary inquiry to determine the best interests of the child and of the public with regard to any action to be taken.

B. During the preliminary inquiry [on a delinquency complaint]:

(1) the matter may be referred to another appropriate agency and conferences may be conducted for the purpose of effecting adjustments or agreements that will obviate the [necessity for filing] need to file a petition; and

(2) juvenile probation services may conduct a risk screening to inform decisions about whether participation in diversion or community-based services would be appropriate for the child.

C. At the commencement of the preliminary inquiry, the parties shall be advised of their basic rights pursuant to Section 32A-2-14 NMSA 1978, and [no party may] a party shall not be compelled to appear at any conference, to produce any papers or to visit any place. The child shall be informed of the child's right to remain silent. The preliminary inquiry shall be completed within the time limits set forth in the Children's Court Rules.

[C.] D. Prior to a preliminary inquiry being conducted with a child who is detained, the child's parent, guardian or custodian or the child's attorney shall be given reasonable notice by the juvenile probation [and parole] officer and an opportunity to be present at the preliminary inquiry. If a child is not detained, the preliminary inquiry shall be conducted within thirty days of receipt of the referral from law enforcement. The thirty-day time period may be extended upon a determination by the department that an extension is necessary to conduct a thorough preliminary inquiry and that the extension is not prejudicial to the best interests of the child.

[D.] E. When a child is in detention or custody and the children's court attorney does not file a petition within the time limits authorized by the Children's Court Rules, the child shall be released immediately. If a child is not detained and a determination is made to file a petition, the petition shall be filed within sixty days of completion of the preliminary inquiry, unless a motion is granted to extend the time limit for good cause shown. If a child is not in custody or detention, a petition shall not be dismissed for failure to comply with the time limit set forth in this subsection unless there is a showing of prejudice to the child.

[E.] F. After completion of the preliminary inquiry on a delinquency complaint involving a misdemeanor, juvenile probation services:

(1) may:

(a) notify the children's court attorney and recommend an appropriate disposition for the case;

(b) conclude that no further action on the case will be taken; or

(2) if the child has been referred for three or more prior misdemeanors within two years of the instant offense [probation services]:

(a) shall notify the children's court attorney and provide the attorney with the results of the child's risk screening; and

(b) may recommend the child's participation in preprosecution diversion or an appropriate disposition for the case.

[F. probation services shall notify the children's court attorney of the receipt of]

G. With respect to any complaint [involving] received that involves an act that constitutes a felony under the applicable criminal law, [probation services shall also] juvenile probation services:

(1) shall:

(a) notify the children's court attorney of the receipt of the complaint;

(b) provide the attorney with the results of the child's risk screening; and

(2) may recommend participation in preprosecution diversion.

[G.] H. The child, through counsel, and the children's court attorney may agree, without judicial approval, to a waiver of time limitations imposed after a petition is filed. A time waiver defers adjudication of the charges. The children's court attorney may place restrictions on a child's behavior as a condition of a time waiver. If the child completes the agreed upon conditions and no new charges are filed against the child, the pending petition shall be dismissed. If the children's court attorney files a new petition against the child, the children's court attorney may proceed on both the original petition and the new charges. The department shall become a party if juvenile probation services are requested as a condition of the time waiver."

SECTION 4. Section 32A-2-10 NMSA 1978 (being Laws 1993, Chapter 77, Section 39, as amended) is amended to read:

"32A-2-10. RELEASE OR DELIVERY FROM CUSTODY.--

A. A person taking a child into custody shall, with all reasonable speed:

(1) release the child to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian and issue verbal counsel or warning as may be appropriate;

(2) release the child to the child's parent, guardian or custodian or an adult authorized to sign on behalf of the child's parent, guardian or custodian upon written promise to bring the child before the court when requested by the court. If the parent, guardian or custodian or an adult authorized to sign on behalf of the child's parent, guardian or custodian fails, when requested, to bring the child before the court as promised, the court may order the child taken into custody and brought before the court;

(3) deliver the child to a place of detention as provided in Section 32A-2-12 NMSA 1978;

(4) deliver the child to a medical facility, if available, if the child is believed to be suffering from a serious illness that requires prompt treatment or prompt diagnosis;

(5) deliver the child to an evaluation facility, if available, if the person taking the child into custody has reasonable grounds to believe the child presents a likelihood of serious harm to the child's self or others or is suffering from some other serious mental condition or illness that requires prompt treatment or prompt diagnosis; or

(6) deliver the child to a center or organization that the court or the department recognizes as an alternative to secure detention.

B. When an alleged delinquent child is delivered to a place of detention or a center or organization recognized as an alternative to secure detention as provided in Section 32A-2-12 NMSA 1978, only a department employee or a trained county detention professional designated by the department may place the child in detention or with a center or organization recognized as an alternative to secure detention in accordance with the criteria for detention set forth in Section 32A-2-11 NMSA 1978. If the criteria for detention of an alleged delinquent child are not met, the child shall be released from custody.

C. A child under the age of [eleven] twelve shall not be held in detention. If a child under the age of [eleven] twelve poses a substantial risk of harm to the child's self or others, a peace officer may detain and transport that child for emergency mental health evaluation and care in accordance with Section 32A-6A-19 NMSA 1978.

D. If a child is taken into custody and is not released to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian, the person taking the child into custody shall give written notice thereof as soon as possible, and in no case later than twenty-four hours, to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian and to the court, together with a statement of the reason for taking the child into custody.

E. In all cases when a child is taken into custody, the child shall be released to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian in accordance with the conditions and time limits set forth in the Children's Court Rules."

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 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;

(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. A child shall not be placed in detention solely based on a technical violation, unless a written determination is made by the court that:

(1) the technical violation is based on the child absconding from supervision;

(2) the child has been referred to a specialty court;

(3) the child poses a substantial risk of harm to the child's self;

(4) the child poses a substantial risk of harm to others;

(5) the child has demonstrated that the child may leave the jurisdiction of the court; or

(6) no alternatives to detention are available or appropriate.

[B.] C. The criteria for detention in this section shall govern the decisions of all persons responsible for determining whether detention is appropriate prior to a child's detention hearing, based upon a review of the detention risk assessment instrument.

[C.] D. The department shall:

(1) develop and implement a detention risk assessment instrument [The department shall]; and

(2) 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-2-17 NMSA 1978 (being Laws 1993, Chapter 77, Section 46, as amended) is amended to read:

"32A-2-17. RISK ASSESSMENTS--MENTAL HEALTH SCREENING--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. 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 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 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 finds that placement in a hospital or other appropriate facility is necessary. Prior to the adjudication of a case, the department shall conduct a risk assessment of the child. Before the adjudicatory hearing, juvenile probation services shall provide to the parties of a case and to the court the results of the risk assessment, an identification of the child's risk of reoffending and an according recommended level, length and type of supervision and services for the child.

C. Any admission, confession or incriminating information obtained from a child in the course of conducting a risk assessment shall not be admitted into evidence in a case against the child, except as rebuttal or impeachment evidence, and shall not be used as a basis for introducing related evidence in any future adjudication hearing or criminal proceeding in which the child is accused. An admission, confession or incriminating information may be considered by the court at disposition of the case.

[C.] D. The court, after a hearing, may order the examination, by a physician or psychiatrist, a licensed psychologist or a licensed professional clinical counselor or a licensed independent social worker, of a parent, guardian or custodian whose ability to care for or supervise a child is an issue before the court.

[D.] E. 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.] F. If a child is detained for purposes of performing a predispositional evaluation, [it] the evaluation 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.

G. The court shall use the predisposition report, including the results of the assessments and screening performed in accordance with this section, to assist the court in determining the disposition of a child's case.

H. A predisposition report shall also be used by the department to inform a decision to place a child in a facility for the care and rehabilitation of adjudicated delinquent children and the education, counseling and treatment provided to the child while committed to the facility.

I. Every six months or when a significant change to a child's case is made:

(1) a facility for the care and rehabilitation of adjudicated delinquent children shall conduct a risk assessment of each child who is adjudicated delinquent and is:

(a) committed to a short- or long-term placement in that facility; or

(b) committed to the facility until the child reaches the age of twenty-one; and

(2) juvenile probation services shall conduct a risk assessment of each child who is adjudicated delinquent and is placed on probation."

SECTION 7. 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] shall make and include in the dispositional judgment its findings [on the], including findings on the results of assessments and screenings of the child conducted in accordance with Section 32A-2-17 NMSA 1978.

B. 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 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.] C. If a child is found to be delinquent, the court may impose a fine not to exceed the fine that could be imposed if the child were an adult and may [enter its judgment making] make any of the following dispositions for the supervision, care and rehabilitation of the child:

(1) transfer legal custody to the department, [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. If a child is committed to the custody of a facility for the care and rehabilitation of delinquent children, the court shall make a finding that an appropriate alternative service or program in the community does not exist or was previously used by the child without success and that the child poses a risk to the community based on the child's risk assessment, the seriousness of the act committed by the child and the child's history of delinquency and any other relevant factors. 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 types of commitments include:

(a) a short-term commitment of one year in a facility for the care and rehabilitation of adjudicated 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] of 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 [I] O 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) place the child in a local detention facility that has been certified in accordance with the provisions of Section 32A-2-4 NMSA 1978 for a period not to exceed fifteen 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 imposing a fine not to exceed the fine that could be imposed if the child were an adult or any combination of these dispositions; or

(4) 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] place 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.] D. When 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.] E. 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 convicted of crimes.

[E.] F. 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.] G. 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.] H. In addition to any other disposition pursuant to Subsection [B] C 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.] I. 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 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.] J. 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 a child adjudicated delinquent for committing graffiti."

SECTION 8. 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] based on the child's risk of reoffending, as determined by the child's risk assessment, the seriousness of the act for which the child was adjudicated delinquent and the child's progress in meeting treatment goals. The releasing entity shall promptly report a child's release or termination and the reasons therefor [shall be reported promptly] to the court in writing [by the releasing authority].

D. Prior to the expiration of a child's short-term commitment of one year, as provided for in Section 32A-2-19 NMSA 1978, the court may extend the [judgment] commitment for up to one six-month period if, based on a child's risk of reoffending, as determined by a risk assessment, the seriousness of the act for which the child was adjudicated delinquent and the child's progress in meeting treatment goals,

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] child's commitment.

E. Prior to the expiration of a child's long-term commitment, as provided for in Section 32A-2-19 NMSA 1978, the court may extend the judgment for additional periods of up to one year until the child reaches the age of twenty-one if, based on a child's risk of reoffending, as determined by a risk assessment, the seriousness of the act for which the child was adjudicated delinquent and the child's progress in meeting treatment goals, 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] child's commitment.
F. Prior to the expiration of a judgment of probation, the court may extend the judgment for an additional period of one year until the child reaches the age of twenty-one if the court finds that the extension is necessary to protect the community or to safeguard the welfare of the child.

G. 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. 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. The department may seek a bench warrant from the court when [the] a child absconds from supervised release."

SECTION 9. Section 32A-2-23.1 NMSA 1978 (being Laws 2009, Chapter 239, Section 23) is amended to read:

"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 a child's risk of reoffending, as determined by a risk assessment, the seriousness of the act for which the child was adjudicated delinquent, the child's progress in meeting treatment goals, 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. 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. 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 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] in accordance with 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. 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 10. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2019.

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