HOUSE BILL 517

48th legislature - STATE OF NEW MEXICO - first session, 2007

INTRODUCED BY

Thomas E. Swisstack

AN ACT

RELATING TO JUVENILE JUSTICE; EXPANDING THE PURPOSE OF THE DELINQUENCY ACT; REQUIRING THAT CERTAIN CHILDREN PLACED IN ALTERNATIVE DETENTION PROGRAMS HAVE THEIR CASES PROCESSED IN A CERTAIN TIME PERIOD; PROVIDING FOR ADDITIONAL FINDINGS BY THE COURT AT THE CONCLUSION OF A CHILD'S DISPOSITIONAL HEARING.

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

     Section 1. Section 32A-2-1 NMSA 1978 (being Laws 1993, Chapter 77, Section 30) is amended to read:

     "32A-2-1. SHORT TITLE.--Chapter [32] 32A, Article 2 NMSA 1978 may be cited as the "Delinquency Act"."

     Section 2. 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, including an emphasis on community-based alternatives; [and]

          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 pre-adjudication and post-adjudication admissions to juvenile detention centers;

          G. to encourage efficient processing of cases;

          H. to develop community-based alternatives to detention;

          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 3. Section 32A-2-11 NMSA 1978 (being Laws 1993, Chapter 77, Section 40, as amended) is amended to read:

     "32A-2-11. CRITERIA FOR DETENTION OF CHILDREN.--

          A. Unless ordered by the court by issuing a warrant 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 in this section shall govern 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 4. 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 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.

          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. 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. 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. 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. 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. 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. A child who is released at the detention hearing to an alternative detention program in which the supervision exceeds parental supervision and the child's freedom of movement is substantially restricted by electronic monitoring, direct staff contact or other means shall have the child's case processed under the same time frames as if the child were placed in detention.

           H. 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. 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. 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. 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 [himself] the child's self or others."

     Section 5. 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 [his] the child's home, school and community;

                (3) the mental and physical health of all individuals involved;

                (4) the wishes of the child as to [his] 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; and

                (9) whether to give the child credit for any portion of time the child served in a juvenile detention facility pending adjudication of the child's case.

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

                (1) transfer legal custody to the department, an agency responsible for the care and rehabilitation of delinquent children, which shall receive the child at a facility designated by the secretary of the department as a juvenile reception facility. The department shall thereafter determine the appropriate placement, supervision and rehabilitation program for the child. The judge may include recommendations for placement of the child. Commitments are subject to limitations and modifications set forth in Section 32A-2-23 NMSA 1978. The types of commitments include:

                     (a) a short-term commitment of one year in a facility for the care and rehabilitation of adjudicated delinquent children. No more than nine months shall be served at the facility and no less than ninety days shall be served on parole, unless: 1) a petition to extend the commitment has been filed prior to the commencement of parole; 2) the commitment has been extended pursuant to Section 32A-2-23 NMSA 1978; or 3) parole 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 parole, unless: 1) parole is revoked pursuant to Section 32A-2-25 NMSA 1978; or 2) the commitment is extended pursuant to Section 32A-2-23 NMSA 1978;

                     (c) if the child is a delinquent offender who committed one of the criminal offenses set forth in Subsection I of Section 32A-2-3 NMSA 1978, a commitment to age twenty-one, unless sooner discharged; or

                     (d) if the child is a youthful offender, a commitment to age twenty-one, unless sooner discharged;

                (2) place the child on probation under those conditions and limitations as the court may prescribe;

                (3) place the child in a local detention facility that has been certified in accordance with the provisions of Section 32A-2-4 NMSA 1978 for a period not to exceed fifteen days [within a three hundred sixty-five day time period] for a probation or program violation during the child's term of probation; or if a child is found to be delinquent solely on the basis of Paragraph (3) of Subsection A of Section

32A-2-3 NMSA 1978, the court shall only enter a judgment placing the child on probation or ordering restitution or imposing a fine not to exceed the fine that could be imposed if the child were an adult or any combination of these dispositions; or

                (4) if a child is found to be delinquent solely on the basis of Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978, the court may make any disposition provided by this section and may enter its judgment placing 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 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.

          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 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 [he] the parent or legal guardian is the parent or legal guardian of a child adjudicated delinquent for committing graffiti."

     Section 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.

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