A. A child subject to the provisions of the Children's Code is entitled to the same basic rights as an adult, except as otherwise provided in the Children's Code.
B. A person afforded rights under the Children's Code shall be advised of those rights at that person's first appearance before the court on a petition under the Children's Code.
C. An eligible adult retains all of the basic rights of an adult while receiving services pursuant to the fostering connections program.
History: 1978 Comp., § 32A-1-16, enacted by Laws 1993, ch. 77, § 25; 2019, ch. 149, § 11.
ANNOTATIONSThe 2019 amendment, effective June 14, 2019, provided that an "eligible adult", as defined in the Fostering Connections Act, retains all of the basic rights of an adult while receiving services pursuant to the fostering connections program; and added Subsection C.
Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-27 NMSA 1978 have been included in the annotations to this section.
Child's right to counsel is the right to have counsel present at any proceeding when the child is a participant; the right to counsel does not extend to a probation officer's conference with another probation officer, law enforcement officers or the other children involved. State v. Doe, 1977-NMCA-124, 91 N.M. 232, 572 P.2d 960, cert. denied, 91 N.M. 249, 572 P.2d 1257 (1978).
The policy behind Rule 22(d), N.M.R. Child. Ct. (now 10-211 NMRA), is that every child has the right to be represented by an attorney and that a child is not capable of making a knowing and intelligent waiver of that right. State v. Doe, 1980-NMCA-179, 95 N.M. 302, 621 P.2d 519.
Statements made before advised by counsel inadmissible. — Where the statements of the defendant, a child, show he believed in the truth of statements witnesses made to the police, the defendant's statements were made to the police after the police took him into custody and at a time when he was not advised by counsel, and under this section the statements were inadmissible. State v. Doe, 1977-NMCA-078, 91 N.M. 92, 570 P.2d 923.
Right not applicable to volunteered statements or statements not requiring Miranda warnings, such as answers to threshold questioning. Doe v. State, 1984-NMSC-001, 100 N.M. 579, 673 P.2d 1312.
Children's court's failure to appoint guardian not jurisdictional. — In a proceeding to terminate a minor mother's parental rights, the failure of the children's court to appoint a guardian ad litem for the mother did not deprive the court of jurisdiction since the court appointed counsel to represent her pursuant to Rule 1-017C NMRA. State ex rel. Children, Youth & Families Dep't v. Lilli L., 1996-NMCA-014, 121 N.M. 376, 911 P.2d 884.
Fourth amendment applicable to proceedings. — United States Const., amend. IV, rights of persons to be secure against unreasonable searches and seizures, has been expressly applied to juvenile proceedings in this state. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248; State v. Doe, 1979-NMCA-032, 93 N.M. 143, 597 P.2d 1183.
Children require opportunity to be heard. — Since the children's court made a dispositional ruling without giving the attorney for the children an opportunity to be heard, and since the attorney nevertheless sought to speak on behalf of the children, but the children's court interrupted and effectively denied the children the opportunity to be heard, the portions of the judgments committing each of the children to the department of corrections (now corrections department) were vacated to afford the children an opportunity to be heard before a new dispositional judgment is to be entered. State v. Doe, 1977-NMCA-050, 90 N.M. 404, 564 P.2d 207.
A child has the right to address the children's court before disposition; the children's court should offer a child the opportunity to address the court before pronouncing sentence. State v. Ricky G., 1990-NMCA-101, 110 N.M. 646, 798 P.2d 596.
Court has discretionary power to accept or refuse admission by child, and so it is not an abuse of discretion to refuse to accept the admission when the consequence of such an acceptance would foreclose transfer. State v. Doe, 1978-NMCA-025, 91 N.M. 506, 576 P.2d 1137.
Prior inconsistent statement not admissible for impeachment. — In a delinquency proceeding, the state was prohibited from introducing for impeachment purposes a prior inconsistent statement made by a youth the night of his arrest. State v. Santiago Rene O., 1991-NMCA-139, 113 N.M. 148, 823 P.2d 948.
No reversal where court fails to advise of rights. — Although the court has a statutory obligation to advise children before it of their rights under the Children's Code and other laws at each separate appearance, that obligation must be read in light of the legislative purposes expressed in the code, and since the child did not claim any prejudice nor claim that he was not otherwise advised by his attorney of his constitutional or other legal rights, the appellate court would not reverse a commitment order for failure of the trial court to advise the child of his rights. In re Doe, 1975-NMCA-124, 88 N.M. 481, 542 P.2d 61.
Waiver of right must be done intelligently. — Waiver of a right created by the constitution, a statute or a court-promulgated rule must be done intelligently and knowingly if the right is to be denied the one claiming it. State ex rel. Dep't of Human Servs. v. Perlman, 1981-NMCA-076, 96 N.M. 779, 635 P.2d 588.
Admission of child's statement is reversible error. — Admission of statements made by a child under age 15 against that child at a hearing to adjudicate delinquency is reversible error. State v. Jonathan M., 1990-NMSC-046, 109 N.M. 789, 791 P.2d 64.
Right to disqualify judge. — The disqualification statute (Section 38-3-9 NMSA 1978) applies to children's court proceedings, and a party to a children's court proceeding is entitled to disqualify the children's court judge. Smith v. Martinez, 1981-NMSC-066, 96 N.M. 440, 631 P.2d 1308.
Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973).
For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976).
For article, "Children's Waiver of Miranda Rights and the Supreme Court's Decisions in Parham, Bellotti, and Fare," see 10 N.M.L. Rev. 379 (1980).
For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980).
For note, "Children's Code - Neglect - State ex rel. Health & Social Services Department v. Natural Father," see 12 N.M.L. Rev. 505 (1982).
For comment, "The Right to Be Present: Should It Apply to the Involuntary Civil Commitment Hearing," see 17 N.M.L. Rev. 165 (1987).
For note, "Criminal Procedure - The Fifth Amendment Privilege Against Self-Incrimination Applies to Juveniles in Court-Ordered Psychological Evaluations: State v. Christopher P.," see 23 N.M.L. Rev. 305 (1993).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 75 et seq.
Duty to advise accused as to right to assistance of counsel, 3 A.L.R.2d 1003.
Right to and appointment of counsel in juvenile court proceedings, 60 A.L.R.2d 691, 25 A.L.R.4th 1072.
Jury trial in juvenile court delinquency proceedings, right to, 100 A.L.R.2d 1241.
Bail: right to bail in proceedings in juvenile courts, 53 A.L.R.3d 848.
Applicability of double jeopardy to juvenile court proceedings, 5 A.L.R.4th 234.
Right of juvenile court defendant to be represented during court proceedings by parent, 11 A.L.R.4th 719.
Validity and efficacy of minor's waiver of right to counsel - modern cases, 25 A.L.R.4th 1072.
Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions-post-Connelly cases, 48 A.L.R.5th 555.
43 C.J.S. Infants § 96.