HB0134

HOUSE BILL 134

57th legislature - STATE OF NEW MEXICO - first session, 2025

INTRODUCED BY

Andrea Reeb

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 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 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 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;

(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 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 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;

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 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:

(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;

[(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

(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, 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;

(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 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 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 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. 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 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 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 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, 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 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 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 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 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 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 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 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:

"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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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:

"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 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 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 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 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 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, 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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