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 [10-101 NMRA]. 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. At the request of any party, the court may permit a detention hearing to be conducted by appropriate means of electronic communication; provided that all hearings conducted by electronic means shall be recorded and preserved as part of the record, the child shall have legal representation present with the child, no plea shall be allowed to be taken via electronic communication and the court finds:
(a) that undue hardship will result from conducting the hearing with all parties, including the child, present in the courtroom; and
(b) that the hardship substantially outweighs any prejudice or harm to the child that is likely to result from the hearing being conducted by electronic means.
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.
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 the child's self or others.
History: 1978 Comp., § 32A-2-13, enacted by Laws 1993, ch. 77, § 42; 2003, ch. 225, § 8; 2009, ch. 239, § 16.
ANNOTATIONSThe 2009 amendment, effective July 1, 2009, in Paragraph (3) of Subsection A, added the last sentence; and added Subparagraphs (a) and (b) of Paragraph (3) of Subsection A.
Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.
The 2003 amendment, effective July 1, 2003, deleted "and Forms" following "Children's Court Rules" in Paragraph A(1); substituted "twenty-four" for "forty-eight" following "be filed within" in Paragraph A(2); inserted "to meet the individual needs of the child" at the end of Subsection F; and added Subsections J and K.
Grade court. — Where the grade court program conditions were laid out in the grade court order child signed and the detention sanction set out in the grade court order, by its terms, applied to violations of conditions of probation and not to conditions of release, once child accepted the conditions of release, the court had authority to order detention, based on his failure to comply with those conditions. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.
Subsection F(3) of this section must be read in correlation with Subsections 32A-2-16 F and H NMSA 1978. To ignore it would leave children adjudicated but awaiting disposition without statutory protection as to what conditions may be imposed upon their release and the legislature had not intended such a result. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.
Children's court has authority to detain children who have been released while awaiting sentencing under this section. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.
Restriction on child's travel or residence. — Although the disposition was not ordered pursuant to this section, this section does support the notion that placing restrictions on a child's travel or place of residence is consistent with the Children's Code. State v. Wacey C., 2004-NMCA-029, 135 N.M. 186, 86 P.3d 611.
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, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980).