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F I S C A L I M P A C T R E P O R T

SPONSOR Sanchez, M

DATE TYPED 3/8/2005 HB

SHORT TITLE Children’s Code Revisions

SB

233/aSPAC/aSJC/aSFL #1

/aHCPAC

ANALYST Dunbar

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Children Youth and Families Department (CYFD)

Health Policy Commission (HPC)

Administrative Office of the DA (AODA)

Department of Public Safety (DPS)

Attorney General (AG)

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of HCPAC Amendment

The House Consumer and Public Affairs Committee amendment Senate Bill 233 strikes SJC

amendment # 2 pertaining to children not in custody or detention and ruling out dismissal of a

petition for failure to comply with the time limit unless there is showing of “prejudice” to the

child. Previous language contained the words “actual and substantial prejudice” to the child.

The change in language is a compromise reached between the DA’s and the Public Defender.

The Public Defender noted that the burden of proof was unreasonably high for the child to show

“actual and substantial prejudice” in dismissing the petition.

Senate Bill 233/aSPAC/aSJC/aSFL#1/aHCPAC-- Page 2

Synopsis of SFL Amendment # 1

The Senate Floor Amendment # 1 amends Section 9-2A-8 NMSA 1978 (Department Additional

Duties) with new language requiring the inclusion of “training for protective services division

employees involved in a preliminary investigation pursuant to Section 32A-4-4 NMSA 1978”

(Complaints; Referral: Preliminary inquiry Section of the Child Abuse and Neglect Act).

CYFD notes that the training requirement described in this bill is already being provided. CYFD

provides protective services employees involved in preliminary investigations with extensive

training regarding disposition, placement under the Children’s Code and parents’ rights.

Synopsis of SJC Amendment

The Senate Judiciary Committee amendment to Senate Bill 233 eliminates SPAC amendment # 4

and inserts language that clarifies the original amendment by limiting the provision to a child

that is not in custody or detention. The amendment also clarifies language on page 40 pertaining

to short term commitments. Finally, SJC amendment eliminates language on page 153 referenc-

ing adoptions and background checks. The original language provided for background checks of

federal, state and local criminal records searches and statewide abuse and neglect searches of the

person being checked. Language remains in the bill that provides for fingerprinting of a person

who files a petition to adopt a child and to use the set of fingerprints to conduct a background

check with the Department of Public Safety and the FBI.

Synopsis of SPAC Amendment

The Senate Public Affairs Committee amendment to Senate Bill 233 corrects an unclear provi-

sion in the original bill regarding preliminary inquiries (PIs) under the Delinquency Act and pro-

vides more realistic time frames for PIs and for the filing of delinquency petitions following PIs.

In addition, the amendment clarifies the handling of youthful offender sentencing on juveniles’

charges with first degree murder, not convicted of first degree murder but convicted of another

youthful offender offense.

This amendment (pages 28 –29 of the bill) clarifies and makes more practical the timeframes for

conduct of PIs on juveniles not in detention, and the timeframes for the filing of delinquency pe-

titions by a District Court following receipt of the PI. Without this amendment, the bill required

PIs to be completed within 14 days, and did not specify what happened if the PI was not com-

pleted within the timeframe, particularly whether the failure to complete a PI meant the juvenile

petition could never be filed at all, which was never the intent of the bill. The amendment pro-

vides more realistic timeframes for PIs and charging decisions, and makes provision for exten-

sions of time to do PIs and to file delinquency petitions under appropriate circumstances.

This amendment also clarifies an unclear provision in the original bill (page 47 of the bill),

which implies, as originally written, that only youthful offender dispositions could be imposed

even if the child were convicted of first degree murder. The amendment makes clear that only a

child charged with but not convicted of first degree murder is subject to youthful offender dispo-

sitions if found to have committed a youthful offense.

According to AODA the amendments will- allow juvenile probation officers and prosecutors do-

ing children's court cases to conduct a more thorough investigation and follow-through on cases

Senate Bill 233/aSPAC/aSJC/aSFL#1/aHCPAC-- Page 3

than the time limits and language originally proposed. Not allowing dismissal for failure to

comply with the time limits unless there is actual and substantial prejudice will keep cases from

being needlessly dismissed. The changes will allow more adequate time for investigation, screen-

ing and filing of charges in serious cases that take longer to get an investigation completed.

Synopsis of Original Bill

Senate Bill 233 enacts many procedural and substantive amendments to the New Mexico Chil-

dren’s Code.

Significant Issues

ARTICLE ONE: GENERAL PROVISIONS

The proposed revisions establish client-directed representation for children ageed fourteen or

older in proceedings under the Children’s Code. This change empowers older children by giving

them a stronger voice in decisions being made about their lives. Children under the age of 14

continue to have attorney guardians ad litem who represent the child’s best interest. The best

interests of older children will continue to be the responsibility of CYFD, the court appointed

special advocate (CASA), and the children’s court. This change was a result of a multi-year

study by the New Mexico Supreme Court’s Court Improvement Project on improving representa-

tion for children.

The bill also enacts a new section governing the representation of attorneys in proceedings in

Children’s Court. This new section would prohibit an attorney representing a child in a Chil-

dren’s Court proceeding from also representing that child in any action filed on behalf of the

child outside of the Children’s Court or obtaining any pecuniary interest in such actions. How-

ever, the new section would authorize the child’s attorney to retain other counsel to represent the

child in other actions.

ARTICLE TWO: DELINQUENCY

Adds “aggravated battery on a household member” to the enumerated youthful of-

fender provisions. This is necessary because the offense of aggravated battery, presently

listed, is a less specific offense and some fact scenarios could require that aggravated

battery on a household member be charged, rather than aggravated battery.

Establishes timeframes to ensure timely preliminary inquiries. Preliminary inquiries

support the detention reform concept by creating an opportunity for the juvenile proba-

tion officer, client and Family to consider alternatives to criminal charges.

AODA expresses concerns that changes proposed in these sections would significantly al-

ter the processing of delinquency referrals and how preliminary inquiries are handled for

juveniles held in detention for a detention hearing. Notifying parents of the time and

place of a preliminary inquiry will add to the responsibilities of the juvenile probation of-

ficer. Allowing parents to be present for a preliminary inquiry will add to the responsi-

bilities of

juvenile detention centers. More manpower will have to be expended for secu-

rity concerns regarding parents coming into the detention center on short notice.

This

will have a financial impact on juvenile detention centers. There is no remedy

spelled out

for failure to notify the parents of a preliminary inquiry for a juvenile held in detention,

Senate Bill 233/aSPAC/aSJC/aSFL#1/aHCPAC-- Page 4

nor for failure to allow the parent to be present during a preliminary inquiry held while

the juvenile is in the detention center.

Additionally, the AODA states that the changes in deadlines with regard to preliminary

inquiries and filing of charges will help process cases through the system more quickly.

On the other hand, the question arises:

would the proposed deadlines result in more

cases being filed because prosecutors may file a petition even

when complete investiga-

tions and reports are not available before the expiration of the 30 days. Erring on the

side of caution ( child shall be released), prosecutors may file charges based on initial

reports or probable cause statements, when waiting for completed cases might reveal

that a case is not worth pursuing. The struggle to get completed investigations and re-

ports may move into the court arena if charges have to be filed within 30 days of the pre-

liminary inquiry, which would then involve the resources of the court and the public de-

fender, as opposed to only the resources of the DA’s office and the police agency.

Adds new language to provide that no child under the age of eleven may be held in

detention. If the child poses a threat to himself or others an emergency evaluation may

be conducted under the Children’s Mental Health Act.

The AODA comments that children under 10 years old who are charged with a delin-

quent act and who have no family willing or able to take custody, or who are unsafe if

re-

turned to the home, will have to have other arrangements made by police officers, and

possibly probation officers and detention center employees. This would add to their re-

sponsibilities, and given the lack of resources to place children, could lead to a great

deal of frustration. On the other hand, 10 years old and younger is a very young and

tender age to be placed in detention with much older, and often hardened, juveniles. The

possibilities for victimization are many. Competency will almost surely be an issue for

any child under age 11 charged with a delinquent act, and ultimately most will probably

not be charged.

Provides that the mandatory 90-day parole period will be served as part of the

commitment period, revocable if the conditions of parole are violated. This will en-

sure that facility clients receive supervision upon returning to the local community, and

will provide clients with an incentive to abide by parole conditions and receive commu-

nity-based services. This section also provides CYFD with the option to request a com-

mitment extension for clients who are not ready for parole and in need of further facility

rehabilitation.

A possible downside of the proposal, according to the AODA is that for those few juve-

niles whose performance and prognosis is so poor that they will almost certainly not be

successful on parole, an early release will put the community at risk. This group would

have previously been held for the full length of their commitment, but will now be re-

leased three months earlier. This provision would probably save a small amount of

money as it costs less to have someone on parole than to house them in a secure facility.

AODA states that allowing extensions of short-term commitments will give juvenile cor-

rections officials and, arguably, judges and prosecutors more latitude in dealing with

problem juveniles who are committed, and with juveniles who do not have a stable home

environment. Some juvenile committed for a short-term are not ready to return home or

Senate Bill 233/aSPAC/aSJC/aSFL#1/aHCPAC-- Page 5

to society within a year of commitment. Although it is anticipated that there would be

relatively few extensions requested in short-term commitment cases, those that were held

and granted would cost the State more money to house. Hearings on extension requests

would also take more court time and resources, which would also be the case for prose-

cutors, defense attorney’s, probation officers, etc.

AODA says that requiring the 90-day minimum period of parole to fall within the time of

the commitment will give the parole period more significance. If a juvenile violates the

terms and conditions of parole, they can be sent back to the institution for the remainder

of the commitment. If parole is served after the period of commitment, there is little that

can be done if parole is violated.

AODA also notes that, changing the standard for granting an extension from finding that

the extension is “necessary to safeguard the welfare of the child or the public interest” to

the public “safety”, could change the showing required for extension, and make it more

difficult to obtain extensions.

•

Changes parole revocation procedures. A child on parole from a agency that has legal

custody who violates the terms of parole may be proceeded against in a parole revoca-

tion proceedings conducted by the department or the supervising agency or by a hearing

officer that is neutral to the child or family. This appears confusing and perhaps should

be limited to the neutral third party.

Reduces the penalty and disposition for a child aged 14 or older who has been

charged with first degree murder but found guilty of a lesser offense. Current law al-

lows imposition of an adult sentence for such children or commitment until age 21, as

“youthful offenders”. This bill would require such children to be sentenced as delinquent

children, which involves less severe penalties.

AODA is concerned that it is not clear that if a serious youthful offender is convicted of a

youthful offender offense, but not first degree murder, then they should be treated as a

youthful offender for disposition purposes. They way it is worded makes it appear that if

they are convicted of first degree murder and a youthful offender offense, then the dispo-

sition is as a youthful offender, as opposed to a serious youthful offender. Realistically

there would be very few cases affected by this change, although it could have implica-

tions for plea negotiations. This change would in effect overrule the holding of State v.

Muniz, which seemed to hold that a serious youthful offender convicted of what

would

only be a delinquent offense, could still be sentenced as an adult.

The terms “developmentally disabled or mentally disordered” in the present statute

are changed to the more accurate terms, “children with developmental disabilities

or mental disorders.”

New language makes specific provisions for the handling of cases in which a child is

found to be incompetent to stand trial.

The AODA provides the following comments:

What is required for a “finding” of incompetence in a misdemeanor case. At a mini-

Senate Bill 233/aSPAC/aSJC/aSFL#1/aHCPAC-- Page 6

mum

,

Is some sort of hearing required. What about a probation revocation case. Would

that be considered a misdemeanor or felony. Does immediate dismissal of misdemeanor

case on a finding of incompetence operate function to close the case too quickly. Some

dangerous (and possibly incompetent) juveniles end up with various misdemeanors, and

often are committed based on misdemeanor adjudications after they have built up a

lengthy enough record. On the other hand, misdemeanor charges may not be worth the

time and resources when a serious competency issue exists. Certain misdemeanors have

victims, and some, such as domestic violence misdemeanors, are now covered by the Vic-

tims of Crime Act. Would a reasonable alternative be a dismissal without prejudice, al-

lowing the prosecutor the option of refilling the petition if it was felt that the juvenile

might now be competent and that the case is worth pursuing.

As to felonies: What triggers the stay. Is it when the issue is raised, as Children’s Court

Rule 10-226 seems to indicate. Is it a finding of incompetence. What is required to find

that a child “cannot be treated to competency”, thereby mandating dismissal of the peti-

tion. Is a hearing of some sort obligatory. Is there a standard of proof that would ap-

ply. How does this provision interact with the provision that requires review of compe-

tency every 90 days up to a year, and then

,

if the child is not competent

,

the petition must

be dismissed (without prejudice). What is the difference between a finding that the child

“cannot be treated to competency” (thereby mandating dismissal), and the review of a

case every 90 days to address competency. How does a judge make the determination

that one person will not attain competency

thereby dismissing the petition, and the peti-

tion will be dismissed, but another will continue on to the next 90-day review.

•

Amends confidentiality language to clarify that all social records pertaining to a

child including detention facility records and other client identifying information

are confidential.

The primary question this proposed legislation raises is whether releasing the identity of

arrested juveniles would be permissible. Also, would it prohibit the release of the identi-

ties of juveniles who escape from juvenile detention facilities or from CYFD facilities. If

this is the effect of this legislation, there could be public safety issues at stake—

particularly with regard to escapees.

The AODA says that the restrictions proposed on what information schools and parents

may have access to, seems to relate to a desire to make sure that information in records

that may be used against the child is not disclosed. For instance, if the records contain

allegations the child has made of abuse against the parent, it seems to be the intent of the

legislation to prohibit the parent from having access to that information. Information

that a school might use to label a juvenile as a troublemaker or someone with certain

propensities based on past record may also be the type of thing that cannot be disclosed

under the proposed legislation. CYFD will have to be careful in crafting regulations and

policies to implement the provisions of this confidentiality section.

ARTICLE THREE: FAMILY SERVICES ACT

The revisions to this article provide for a simple referral process whereby CYFD, to

the extent possible, assists children and families in accessing appropriate community ser-

vices.

The process schools were asked to follow before requesting services has been

eliminated. Also, the responsibilities of the department of public education and the de-

Senate Bill 233/aSPAC/aSJC/aSFL#1/aHCPAC-- Page 7

partment of health, with regard to the referral process, have been eliminated, with the

process now falling squarely on CYFD, subject to the availability of resources.

The revisions provide for increased time limits on voluntary placements, to give

CYFD programs adequate time to succeed in assisting families in need of services. (The

maximum time frame for voluntary placements is extended from 180 days to 360 days).

The revisions broaden the definition of a family in need of services to a child or fam-

ily wherein the child’s behavior endangers the child, thereby allowing that family to

request services from CYFD for the child or the family. Should the language specify

the program within the department where the family in need of services makes the re-

quest.

The revisions remove the criteria relating to a child’s absence from school for ten

days without excuse as one of the factors to be designated a “family in need of ser-

vices”;

The revisions increases notification requirements to Tribes with regard to proceed-

ings against, placement, and disposition of Indian children;

The AG notes that the bill also repeals NMSA Section 32A-3A-5 which contained

requirements for a “plan for family services” under the Family in Need of Services

Act. Presumably the elimination of this section will give the CYFD more discretion and

latitude to provide services without being restricted by the time limits and plan require-

ments contained in this section.

This bill changes various provisions in the Family in Need of Court Ordered Ser-

vices Act, 32A-3B-1 et seq. This act is invoked when a family has refused services from

CYFD or that department has exhausted available services and court intervention is nec-

essary. The amendments relate to appointment of attorneys for children, attendance at

hearings by children, confidentiality provisions, and placement of Indian children.

ARTICLE FOUR: ABUSE AND NEGLECT

A provision is added giving the investigating entity the authority to conduct the in-

vestigation in a manner it determines will protect the privacy of the child and fam-

ily, with paramount consideration for the child’s safety.

A provision is added requiring the Department to notify the parents or guardians of

a child to be interviewed unless that notification would adversely affect the safety of

the child or compromise the investigation.

To comply with the federal Adoption and Safe Families Act, provisions are added

which require the children’s court to conduct a permanency hearing no later than twelve

months after a child has entered foster care, and provide additional flexibility in arriving

at permanency goals for families and children.

As noted above, provision is made for children fourteen years of age or older to be

represented by a client-directed attorney in all abuse/neglect proceedings. A provi-

sion is also added requiring that children fourteen and over be allowed to attend court

hearings unless the court documents a compelling reason to exclude the child.

Strengthens the language on confidentiality of records, and authorizes CYFD to es-

tablish regulations for implementing the disclosure of records.

Requires that law enforcement officers investigating alleged abuse or neglect be so

trained.

Provides for “protective supervision” of the child by CYFD. This is newly defined as

the right to visit the child at home, inspect the home, and transport the child to court-

ordered examinations and to obtain information and records concerning the child.

Senate Bill 233/aSPAC/aSJC/aSFL#1/aHCPAC-- Page 8

Eliminates the factor of termination of parental rights to a sibling of the child as a

factor which would not require a court to make reasonable efforts to preserve and

reunify the family, and as requiring an automatic termination of parental rights of

another abused or neglected sibling. In other words, under the bill, even if parental

rights to a sibling have been terminated, the court must still make those efforts and may

not automatically terminate parental rights to another sibling.

Requires that a person be a party to the abuse and neglect proceeding in order to

move to terminate parental rights. Current law allows foster parents and relatives to

move for termination even if they have not intervened and been made parties.

Eliminates service by publication for parents whose location is unknown.

Eliminates court appointed attorneys for parents.

ARTICLE FIVE: ADOPTIONS

The age at which a child must consent to being adopted is raised from age ten to age

fourteen. This change is consistent with the overall scheme of making age fourteen the

threshold for acquiring additional rights and responsibilities. The change also addresses

a clinical concern of many social workers that at age ten children in the foster care sys-

tem do not have the emotional maturity and clarity to hold a veto power over their adop-

tion.

In order to achieve required consistency with recent amendments to the federal

Child Abuse Prevention and Treatment Act, a provision is added requiring finger-

printing and national criminal history record checks, as well as department back-

ground checks on prospective foster and adoptive parents and all adults living in the

household. (The provisions requiring criminal history and records checks on foster par-

ents are in the current law. The new language now includes other adults, including rela-

tives, living in the household.)

A requirement is added that all relinquishments of parental rights in adoptions

cases must be taken on the record in the children’s court. In addition, a requirement

is added that the children’s court must state that unless the adoption is specified as an

“open adoption” under section 32A-5-35, the parties understand that the court will not

enforce any agreements regarding contact between the birth parents and the child. These

provisions are added to ensure that birth parents fully understand their rights and the full

consequences of their relinquishments or consents to adoption.

Administration of subsidized adoptions: The change to this section allows the depart-

ment to continue adoption subsidy payments until the age of 21 for children on the

“medically fragile waiver program.” These children are among the state’s highest need

children, and their adoption subsidies are permitted under Medicaid to past the age of

18. This provision impacts on a very small number of children. It

would have, therefore,

minimal fiscal impact and could be absorbed by the base budget.

A provision is added for penalties for violation of the confidentiality provisions of

the Adoption Act. This is consistent with the penalty provisions already found in the De-

linquency and Abuse/Neglect Articles.

Provides criminal misdemeanor penalties for release of records which are confiden-

tial under the Adoption Act

Requires that pre-placement studies of prospective adoptive parents be completed

or updated within one year immediately prior to the date of placement;

Senate Bill 233/aSPAC/aSJC/aSFL#1/aHCPAC-- Page 9

PERFORMANCE IMPLICATIONS

The proposed revisions are aligned with several family services, juvenile justice and protective

services performance measures. Several revisions allow CYFD to achieve conformity with the

federal Adoptions and Safe Families Act and Indian Child Welfare Act to ensure that children

achieve permanency as quickly as possible and to improve the quality timeliness and appropri-

ateness of services provided to children and families.

FISCAL IMPLICATIONS

The proposed revisions will result in minimal fiscal impact absorbed in the CYFD base budget

ADMINISTRATIVE IMPLICATIONS

CYFD is prepared to develop policies and procedures consistent with the proposed revisions.

DPS notes that changes affecting law enforcement will require training specifically in the area of

child abuse/neglect; the increased workload generated regarding fingerprinting and background

checks may require additional staff.

AOC says the courts may need additional judicial and administrative resources to carry out the

changes described above.

TECHNICAL ISSUES

DPS states that legislation involving background checks and fingerprinting must include specific

broiler plate language to ensure compliance with public law 92-544.

OTHER SUBSTANTIVE ISSUES

The AG notes that the bill also repeals a 2003 law which was never codified because it conflicted

with another law passed in that session and signed last by the Governor. The law that was not

codified amended Section 32A-2-19 to provide for a ninety-day parole period after short-term

commitment of one year if a child was adjudicated delinquent, as one of the commitment op-

tions. This repeal is redundant since this bill also amends that section as described above.

The bill also repeals NMSA Section 32A-3-1, the title section to the Family in Need of Services

Act. That section apparently was already occupied by another law. This repeal corrects a compi-

lation inconsistency and is inconsequential since the Act refers to itself by its title in its provi-

sions, and this bill would amend Section 32A-3A-1 to formally designate the title of that

Act.

BD/lg:yr