46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO CHILDREN; PROVIDING FOR THE CREATION AND ENFORCEMENT OF CURFEW ORDINANCES BY COUNTIES AND MUNICIPALITIES; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.

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

Section 1. Section 32A-1-6 NMSA 1978 (being Laws 1993, Chapter 77, Section 15, as amended) is amended to read:

"32A-1-6. CHILDREN'S COURT ATTORNEY.--

A. The "office of children's court attorney" is established in each judicial district. Except as provided by Subsection C, D or E of this section, each district attorney is the ex-officio children's court attorney for the judicial district of the district attorney.

B. Except as provided by Subsection C, D or E of this section, the children's court attorney may represent the state in any matter arising under the Children's Code when the state is the petitioner or complainant. The children's court attorney shall represent the petitioner in matters arising under the Children's Code when, in the discretion of the judge, the matter presents legal complexities requiring representation by the children's court attorney, whether or not the state is petitioner or complainant, but not in those matters when there is a conflict of interest between the petitioner or complainant and the state. A petitioner or complainant may be represented by counsel in any matter arising under the Children's Code.

C. In cases involving civil abuse or civil neglect and the periodic review of their dispositions, the attorney selected by and representing the department is the children's court attorney. The attorney selected by and representing the department shall provide the district attorney of the appropriate judicial district with a copy of any abuse or neglect petition filed in that judicial district. Upon the request of the district attorney, the attorney selected by and representing the department shall provide the district attorney with reports, investigations and pleadings relating to any abuse or neglect petition.

D. In cases involving families in need of services, the periodic review of their dispositions and voluntary placements, the attorney selected by and representing the department is the children's court attorney. The attorney selected by and representing the department shall provide the district attorney of the appropriate judicial district with a copy of any family in need of court-ordered services petition filed in that judicial district. Upon the request of the district attorney, the attorney selected by and representing the department shall provide the district attorney with reports, investigations and pleadings relating to any family in need of court-ordered services petition.

E. In cases involving a child subject to the provisions of the Children's Mental Health and Developmental Disabilities Act that also involves civil abuse, civil neglect or a family in need of court-ordered services, the attorney selected by and representing the department is the children's court attorney. In cases involving a child subject to the provisions of the Children's Mental Health and Developmental Disabilities Act that does not also involve civil abuse, civil neglect or a family in need of court-ordered services, the district attorney is the ex-officio children's court attorney.

F. In those counties where the children's court attorney has sufficient staff and the workload requires it, the children's court attorney may delegate children's court functions to a staff attorney.

G. In a county or municipality that has enacted a curfew ordinance, the district attorney having jurisdiction for that county or municipality may delegate the children's court attorney function to a county or municipal attorney."

Section 2. Section 32A-3B-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 75) is amended to read:

"32A-3B-3. PROTECTIVE CUSTODY--INTERFERENCE WITH PROTECTIVE CUSTODY--PENALTY.--

A. A child may be taken into protective custody by a law enforcement officer without a court order when the officer has reasonable grounds to believe that:

(1) the child has run away from the child's parent, guardian or custodian;

(2) the child without parental supervision is suffering from illness or injury;

(3) the child has been abandoned; [or]

(4) the child is endangered by his surroundings and removal from those surroundings is necessary to ensure the child's safety; or

(5) the child is in violation of a county or municipal curfew ordinance.

B. A child may be taken into protective custody pursuant to a court order issued after an agency legally charged with the supervision of the child has notified a law enforcement agency that the child has run away from a placement.

C. When a child is taken into protective custody, the department shall make a reasonable effort to determine whether the child is an Indian child.

D. Any person, other than the child taken into protective custody, who interferes with placing the child in protective custody is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."

Section 3. A new section of the Children's Code, Section 32A-3B-3.1 NMSA 1978, is enacted to read:

"32A-3B-3.1. [NEW MATERIAL] CURFEW ORDINANCES.--

A. Curfew ordinances may be enacted by counties and municipalities for the purpose of restricting the hours that a child under the age of eighteen years shall be allowed to remain in a public place or establishment. Curfew ordinances may provide for circumstances where a child under the age of eighteen years shall be allowed in a public place or establishment.

B. Curfew ordinances may provide for penalties that include community service and for monetary civil fines. These penalties may be imposed on a child or the child's parent or guardian. Curfew ordinances may provide for penalties that suspend or limit the use of a motor vehicle license by the child.

C. A children's court and the department may enter into joint powers agreements with counties and municipalities, including the magistrate, municipal or metropolitan courts in those jurisdictions, for the purpose of allowing jurisdiction, supervision, counseling and intervention with the child and the child's parent or guardian. Absent an agreement, jurisdiction shall remain with the children's court. A children's court may designate a special master or commissioner for administering and adjudicating the curfew ordinances.

D. A child under the age of eighteen years may be taken into custody by a law enforcement officer without a court order for violation of a curfew ordinance. Violation of a curfew ordinance shall subject the child to protective custody and shall subject the child and the child's parent or guardian to any applicable civil penalties."

Section 4. A new section of the Children's Code, Section 32A-3B-4.1 NMSA 1978, is enacted to read:

"32A-3B-4.1. [NEW MATERIAL] PROTECTIVE CUSTODY FOR VIOLATION OF A CURFEW ORDINANCE.--

A. If a child is taken into protective custody for violation of a county or municipal curfew ordinance, the child shall not be held in a detention facility, police station, sheriff's facility or jail, but may be held in one of the following until a parent or guardian can pick up the child and claim custody of the child:

(1) community center or other building owned, leased or used by a county or municipality that is not a detention facility; or

(2) other non-secured facility for the purpose of holding a child in temporary custody.

B. The county or municipality shall provide in its curfew ordinance mechanism and requirement mandating the city or county's requirement to attempt to contact the parent or guardian of the child taken into protective custody. Attempts to contact the parent or guardian shall be conducted promptly after taking the child into custody and provision shall be made in the ordinance for ongoing attempts to contact the parent or guardian, including provisions for attempts to contact a parent or guardian of a child who does not have a telephone.

C. A law enforcement officer who takes a child into protective custody pursuant to a violation of a curfew ordinance shall not be required to contact the department as provided in Section 32A-3B-4 NMSA 1978 but shall with all reasonable speed attempt to contact the parent or guardian of the child, and the law enforcement officer shall inform the child that the child is being taken into protective custody for violation of a curfew ordinance.

D. The child may be released to the custody of an adult designated by the parent or guardian of the child.

E. If a child has not been released to custody of a parent or guardian by 11:00 a.m. the morning after being placed into protective custody, the county or municipality shall provide for a means for the child to be returned to the child's home or to an adult designated by the parent or guardian of the child."