2005 Children’s Code Amendments: Delinquency Act

Youthful Offender 32A-2-3(I)(e): Aggravated Battery Against a Household Member, (under ) added as a youthful offender offense.

Preliminary Inquiry: time limits, filing of petitions and extensions 32A-2-7(B),(C),(D): - Child is advised of right to remain silent; - If child is detained, the parent, custodian or attorney shall be given reasonable notice of PI, - If child is not detained: - PI shall be conducted within 30 days of referral; may be extended if the CYFD determines extension is necessary and not prejudicial to the best interest of the child. AND - Petition shall be filed within 60 days of PI, unless motion is granted to extend for good cause shown. If a child is not in custody or detention, a petition shall not be dismissed for failure to comply with these time limits unless there is a showing of prejudice to the child.

Child Under Age of Eleven 32A-2-10 (C)  Shall not be held in detention  If poses substantial risk of harm to self or others, a police officer may detain and transport for emergency mental health evaluation

Juvenile warrants on persons in adult facility 32A-2-12(F): When person 18 or older is taken into custody in an adult facility, and there is an outstanding juvenile warrant, notice shall be given to CCA and JPPO within 1 day of being taken into custody; JPPO shall notify Children's Court and Child's Attorney.

Commitments, Parole, Extensions 32A-2-19(B)(1)(a),(b), 32A-2-23(D),(E), 32A-2-25(A) - Up to one year: maximum 9 months in facility, no less than 90 days on parole, unless petition to extend has been filed prior to commencement of parole, or commitment has been extended, or parole is revoked. Prior to expiration, court may extend commitment once for additional six months if “necessary to safeguard the welfare of the child or the public safety.” Parole included in extension. Notice and hearing required. - Up to two years: maximum 21 months in facility, no less than 90 days on parole unless revoked or commitment has been extended. Prior to expiration, court may order additional one year commitments if “necessary to safeguard the welfare of the child or the public safety,” until age of 21; notice and hearing required. NOTE: Child may waive preliminary parole revocation hearing only after consultation with attorney, parent, guardian or custodian.

CYFD/protective services referral 32A-2-19(F) Old language allowing delinquency court to place child in CYFD/protective services custody (which bypassed the due process rights of parents) has been deleted. Replaced by an option for the court to refer the child and family to CYFD for an abuse/neglect investigation.

Serious Youthful Offender 32A-2-20(G),(H): Child 14 or older charged with first degree murder, but found to have committed a Youthful Offender (YO) offense, is subject to sentencing as a YO; - If only found to have committed a delinquent offense, subject to disposition for delinquents. (Effectively overrules State v. Muniz, 2003-NMSC- 21, which held that a child charged as Serious YO, who plead to delinquent offenses, could be sentenced as an adult; and harmonizes this section with the Criminal Sentencing Act )

If child found incompetent 32A-2-21(G) - If charge is misdemeanor, court shall dismiss petition with prejudice, and may recommend proceedings under the Children's Mental Health Code. - All other cases: proceedings stayed for up to one year, with review every 90 days; petition dismissed without prejudice if court finds child cannot be treated to competency, or if, after one year, court determines child is incompetent to stand trial or participate in own defense; - Upon dismissal court may recommend proceedings under the Children's Mental Health Code; - During stay, court may order treatment to attain competency or amend conditions of release under 32A-2-11, or 13.

Consent Decrees 32A-2-22: -Admission of allegations in petition "shall not" be required. (Was never required by statute, but was by some courts) - Deletes restriction on use of CDs to no more than one CD within a 2 year period, i.e., now can have unlimited CDs, subject to court approval.

Civil liability, Indigency standard 32A-2-27, 32A-2-30: Civil liability for child's actions removed from child's "custodian," who, unlike parents or guardians, has no legal relationship to the children in his/her care. Similarly, custodians are not liable for services rendered by public defender's office (as distinguished from parents or guardians).

Confidentiality of Juvenile Records 32A-2-32(B)(12),(13),(16); (D) Covers all client-identifying social records pertaining to child, including facility records. - Disclosure of records to school personnel only when necessary to child's educational planning or educational needs. - Disclosure to parents, guardian, legal custodian, or foster parent only if necessary for child's treatment or care, and limited to such information as necessary to provide for the treatment or care of child. - CYFD shall promulgate regulations.