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

SPONSOR Miera

ORIGINAL DATE

LAST UPDATED

2/20/07

HB 1040

SHORT TITLE Delinquency Code Children’s Mental Health

SB

ANALYST Lucero

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY07

FY08

FY09 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

Minimal Minimal Minimal Recurring General

Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to HB 515 regarding delinquency records, Companion to HB637

Duplicates Appropriation in the General Appropriation Act

Relates to Appropriation in the General Appropriation Act

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Defender Department (PDD)

Public Education Department (PED)

Children, Youth and Families Department (CYFD)

Administrative Office of the Courts (AOC)

Administrative Office of the District Attorneys (AODA)

SUMMARY

Synopsis of Bill

House Bill 1040 proposes to amend the Delinquency article of the New Mexico Children's Code

related to children subject to delinquency petitions who have or may have a developmental

disability or mental disorder as defined in that section of the Code. The proposed amendments:

•

Section A2: When there is a question about a child’s competency, the Children‘s

Court Judge no longer initiates involuntary placement, but instead requests that

the Children’s Court Attorney petition for that child’s placement. Essentially

shifting from the Children's Court Judge to the assistant district attorney the

responsibility for initiating involuntary commitment proceedings

•

Section H: Clarifies that when there is a petition for the involuntary

placement/treatment, the child is entitled to all the substantive and procedural

protections detailed in Children’s Mental Health and Developmental Disabilities

Act (CMHDDA).

House Bill 1040 – Page

2

•

Section I: Child only receives a treatment guardian if the child is resident of

residential treatment or habilitation program as defined in CMHDDA, and that

appointment of the guardian occurs pursuant to CMHDDA.

•

Section J: No proceeding under the Delinquency Act will be combined with a

proceeding under the CMHDDA.

FISCAL IMPLICATIONS

There would be a possible fiscal impact to Local Education Authorities (LEA) for an Individual

with Disabilities Education Act (IDEA)-eligible student, who is court ordered or involuntarily

placed in a treatment center, in order to provide a Free and Appropriate Public Education

(FAPE).

SIGNIFICANT ISSUES

Language in each of the proposed amendments should be analyzed with the proposed amended

language of Section 32A-2-21 (J) in mind, to wit: the possible interpretation that upon

involuntary placement, the State's delinquency petition must be dismissed in order to avoid

commingling of a delinquency proceeding and a proceeding under the Children's Mental

Health/Developmental Disabilities article of the Code.

This bill clarifies the distinction between delinquency proceedings and proceedings under the

CHMDDA, insuring the rights of the children. It clarifies that those children whose competency

is questioned in a delinquency proceedings are entitled to all the protections of children who may

be involuntarily treated. This bill is in accord with the goals of the delinquency act and the

CMHDDA.

PERFORMANCE IMPLICATIONS

Clarifying the distinction between proceedings under the delinquency act and the CMHDDA

may help the PDD in its representation of juvenile offenders.

The courts are participating in performance-based budgeting. This bill may have an impact on

the measures of the district courts in the following areas:

•

Cases disposed of as a percent of cases filed

•

Percent change in case filings by case type

ADMINISTRATIVE IMPLICATIONS

There will be a minimal administrative cost for statewide update, distribution and documentation

of statutory changes. Any additional fiscal impact on the judiciary would be proportional to the

enforcement of this law and petitions for placement and other proceedings required being

separate. New laws, amendments to existing laws and new hearings have the potential to

increase caseloads in the courts, thus requiring additional resources to handle the increase.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Relates to HB 515 regarding delinquency records, Companion to HB637

House Bill 1040 – Page

3

TECHNICAL ISSUES

(1). The proposed language regarding initiation of involuntary commitment proceedings is

discretionary with both the court and the children's court attorney. ". . .the court may . . .

request the children's court attorney to petition for that child's involuntary residential

placement . . ." This language departs from the language of Section 32A-6-13( A ), which

allows " any person" believing that a child may suffer from a developmental disability or

mental disorder to request filing of an involuntary placement petition. The discretionary

language regarding initiation of the process may be appropriate in a delinquency context,

inasmuch as not every child who may be mentally disordered or developmentally disabled

within the meaning of the Code will need or benefit from such highly restrictive placement.

On the other hand, this language may prove a detriment to the assessment process that

actually determines a child's treatment needs and the clinical propriety of an involuntary

placement. Finally, please bear in mind that current workloads and staffing allocations of

Children's Court judges and attorneys may dictate that the discretionary nature of the

language may preclude the requesting or filing of such petitions.

The Code currently requires that children subject to the Court's delinquency jurisdiction and

mental health/developmental disabilities jurisdiction, as in this section, be placed in the legal

custody of CYFD (the Department) during the period of placement. This is appropriate,

inasmuch as the Department will be responsible for payment of the child's residential

treatment/habilitation costs. In a time when state dollars for residential placement of children

are scarce to nonexistent, departmental involvement and support is vital to effectuation of

this provision. Historically, CYFD is reluctant to take on additional custody obligations

regarding juveniles subject to the Court's delinquency jurisdiction. In order for the

involuntary commitment process to function as clearly intended by the current legislation, the

proposed amendment should require the court to order initiation of commitment proceedings

by the CYFD attorney, representing the prospective custodian, rather than the assistant

district attorney who may ultimately lose jurisdiction over the case. See analysis of proposed

amendment to Section 32A-2-21(J), below. Although the current statute requires the district

attorney to initiate commitment proceedings, the legislature may wish or need to hand over

this responsibility to CYFD attorneys in order to effectuate the separation of proceedings

required by -21(J ).

(2) It is appropriate to require provision of all substantive and procedural rights to children who

are subject to involuntary placement petitions. The rights of children as set out in the Code

vary from article to article. If the legislature intends to adopt the proposed separation of

delinquency matters and commitment proceedings, it would be more specific and appropriate

to refer directly to the article and section setting forth the rights intended to be provided, and

perhaps enumerate them here. The rights enumerated in Section 32A-2-13 (F) seem

appropriate in this context.

(3) The proposed language of Section 32A-2-21 (I) prohibits appointment of a treatment

guardian unless a child is actually in residential placement. This prohibition can create a

disturbing scenario for children in voluntary outpatient treatment. Certain therapeutic

modalities, including prescribed medications, may be in the best interests of these children,

who are not deemed legally competent to consent or withhold consent to treatment and

whose parents cannot or will not agree to these treatment modalities. Withholding

treatment guardians from children in outpatient treatment may deprive them of necessary and

House Bill 1040 – Page

4

clinically appropriate treatments. Provision of a treatment guardian to a child in non-

residential treatment should be decided on a case- by- case basis and should not be subject to

the blanket prohibition of this language.

(4) The proposed language of Section 32A-2-21 (J) appears to mandate total separation of

delinquency proceedings and any proceeding under the mental health/developmental

disabilities article. This procedure is inconsistent with the proposed amendment to section -

21 (A) (2), currently requiring assistant district attorneys to file commitment petitions. See

analysis of that section, above. A further concern is that the nonspecific language of the

proposed section -21 (J) may lead courts to dismiss delinquency petitions of children

involuntarily committed. This proposed legislation should be closely analyzed in

conjunction with Section 32A-2-21 (G), the competency section of the delinquency article.

Not every child committed for residential placement will meet criteria for a finding of

incompetence, and vice versa. One possible interpretation of proposed -21 (J) would

necessarily equate the two situations. This interpretation would deprive the Court and the

State of the ability of hold children accountable for their actions and protect the public

interest as required by Section 32A-2-2 (A). The language should be redrafted to clarify that,

while proceedings under the two articles should be separated, i.e. hearing before a separate

judge, without involvement of the assistant district attorney, etc., the delinquency proceeding

may go forward absent the issue of competency and the required stay.

OTHER SUBSTANTIVE ISSUES

The New Mexico Children’s Mental Health and Developmental Disabilities Revision Task Force

reports that the Section 32A-2-21 amendment “is necessary to resolve ambiguity about the need

to petition the court to proceed under the Children’s Mental Health and Developmental

Disabilities Code when addressing the needs of children requiring involuntary placement for

mental health or developmental disabilities services."

The current law allows the court to initiate proceedings for the involuntary placement of a child.

HB 1040 requires the court to request the children’s court attorney to petition for a child’s

involuntary residential placement. The bill further provides that a proceeding under the

Delinquency Act shall not be combined with a proceeding under the Children’s Mental Health

and Developmental Disabilities Act. Thus, it appears that the number of proceedings associated

with the disposition of a child with a mental disorder or developmental disability in a

delinquency proceeding will increase.

Section 1(E) provides that when a child in CYFD custody needs involuntary placement as a

result of a mental disorder or developmental disability, the department must request the

children’s court attorney to petition for the child’s placement. This procedure is echoed in the

Section 1(A) amendment.

DL/nt