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 the child's home, school and community;
(3) the mental and physical health of all individuals involved, including consideration of such factors as the child's brain development, maturity, trauma history and disability;
(4) the wishes of the child as to 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.
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 supervised release, unless: 1) a petition to extend the commitment has been filed prior to the commencement of supervised release; 2) the commitment has been extended pursuant to Section 32A-2-23 NMSA 1978; or 3) supervised release 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 supervised release, unless: 1) supervised release 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; 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 [Chapter 32A, Article 4 NMSA 1978]. 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 [66-5-501 to 66-5-504 NMSA 1978], 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 the parent or legal guardian is the parent or legal guardian of a child adjudicated delinquent for committing graffiti.
History: 1978 Comp., § 32A-2-19, enacted by Laws 1993, ch. 77, § 48; 1995, ch. 204, § 3; 1995, ch. 206, § 13; 1996, ch. 85, § 4; 2003, ch. 225, § 10; 2003, ch. 239, § 5; 2005, ch. 189, § 16; 2009, ch. 239, § 20.
ANNOTATIONSCross references. — For the procedure governing disciplinary hearings, see Rule 10-246 NMRA.
For escape from custody of the children, youth and families department, see 30-22-11.1 NMSA 1978.
For aggravated escape from the custody of the children, youth and families department, see 30-22-11.2 NMSA 1978.
Compiler's note. — Laws 2005, ch. 189 both amended and repealed Laws 2003, ch. 225, § 10. Laws 2005, ch. 189, § 77 repealed Laws 2003, ch. 225, § 10, effective June 17, 2005. Laws 2005, ch. 189, § 16 amended Laws 2003, ch. 225, § 10.
The 2009 amendment, effective July 1, 2009, in Paragraph (3) of Subsection A, after "individuals involved", added the remainder of the sentence; and in Subparagraphs (a) and (b) of Paragraph (1) of Subsection B, changed "parole" to "supervised release".
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 2005 amendment, effective June 17, 2005, in Subsection B(1), deleted the former provision that the court could enter a judgment making any disposition that is authorized for the disposition of a neglected or abused child; in Subsection B(1)(a). provided that a commitment may include a short term commitment in a facility for the care and rehabilitation of adjudicated delinquent children, that not more than nine months shall be served at the facility and not less than ninety days on parole unless a petition has been filed to extend the commitment, the commitment has been extended pursuant to a consent decree, or parole is revoked; Subsection B(1)(b), provided that with respect to a long term commitment may not be more than twenty one months at a facility for the care and rehabilitation of adjudicated delinquent children and not less than ninety days on parole unless the commitment has been extended pursuant to a consent decree or parole is revoked; and added Subsection G, which provided that the court may make an abuse or neglect report for investigation and proceedings to a local law enforcement agency, the children, youth and families department, or a tribal law enforcement or social service agency for an Indian child residing in Indian country.
The 2003 amendment, effective April 6, 2003, — added "or an ignition interlock license pursuant to the Ignition Interlock Licensing Act" following "Section 66-5-35 NMSA 1978" in the last sentence of Subsection G. Laws 2003, ch. 225, § 10, effective July 1, 2003, also amended this section. The section was set out as amended by Laws 2003, ch. 239, § 5. See 12-1-8 NMSA 1978.
The 1996 amendment, effective July 1, 1996, substituted "parents" for "parent" in Paragraphs A(1) and (5); added Subparagraph B(1)(c) and redesignated the following subparagraph accordingly; and added Subsection H.
The 1995 amendment, effective July 1, 1995, deleted a provision regarding commitments of six months or less in long-term care facilities from Paragraph B(2)(a), and added Paragraph B(2)(c). Laws 1995, ch. 204, § 3, effective July 1, 1995, also amended this section. The section was set out as amended by Laws 1995, ch. 206, § 13. See 12-1-8 NMSA 1978.
Commitment to age 21. — Subsection B(1)(c) of this section does not say that commitment to age 21 is authorized only for children who fit the definition of youthful offenders as set forth in Subsection I of Section 32A-2-3 NMSA 1978. State v. Indie C., 2006-NMCA-014, 139 N.M. 80, 128 P.3d 508, cert. denied, 2006-NMCERT-001, 139 N.M. 273, 131 P.3d 660.
Children's Code does not place limitations on type of probation conditions the court may order. State v. Wacey C., 2004-NMCA-029, 135 N.M. 186, 86 P.3d 611.
Geographical and temporal limitations of probation condition do not bring it in the realm of banishment. State v. Wacey C., 2004-NMCA-029, 135 N.M. 186, 86 P.3d 611.
Probation condition does not amount to banishment where child's probation condition does not require him to leave the state or country entirely and does not trigger concerns about interstate or international relations, child's restriction is limited to the period of his probation, not to exceed two years, and the probation condition was fashioned in response to concerns for both the child's welfare, as residents talked about arming themselves against the child, and the welfare of the area, as child had plans for more serious regional criminal activity. State v. Wacey C., 2004-NMCA-029, 135 N.M. 186, 86 P.3d 611.
Finding required for adjudication as delinquent. — A finding that a child is in need of care or rehabilitation is required in order to adjudicate the child to be a delinquent. State v. Doe, 1980-NMCA-148, 95 N.M. 90, 619 P.2d 194, superseded by statute, State v. Michael R., 1988-NMCA-087, 107 N.M. 794, 765 P.2d 767.
Amenability to treatment. — Section 31-18-15.3F NMSA 1978 gives the district court the discretion to impose an adult sentence as indicated in Section 32A-2-20 NMSA 1978 based on a finding that a child is not amenable to treatment. If the district court finds the child is amenable to treatment, then the district court should impose a juvenile disposition in accordance with this section. State v. Muniz, 2003-NMSC-021, 134 N.M. 152, 74 P.3d 86, superseded by statute, State v. Jones, 2010-NMSC-012, 148 N.M. 1, 229 P.3d 474.
Consecutive commitments. — The children's court is not authorized to order consecutive commitments from one dispositional hearing, regardless of the number of petitions filed by the state. State v. Adam M., 2000-NMCA-049, 129 N.M. 146, 2 P.3d 883, cert. denied, 129 N.M. 249, 4 P.3d 1240.
Non-consecutive commitments. — The imposition of two non-consecutive commitments based on separate petitions stemming from different underlying behavior during one dispositional hearing is authorized by Subsection B(2)(b) (now B(1)(b))of this section. State v. Jose S., 2005-NMCA-094, 138 N.M. 44, 116 P.3d 115, cert. denied, 2005-NMCERT-007, 138 N.M. 145, 117 P.3d 951.
Indeterminate commitment unauthorized. — The children's court has no authority, pursuant to a plea agreement, to commit a child who has been adjudicated delinquent to the legal custody of the children, youth and families department for an indeterminate period up to the age of eighteen. State ex rel. Children, Youth & Families Dep't v. Paul G., 2006-NMCA-038, 139 N.M. 258, 131 P.3d 108.
Authority to order detentions. — The children's court had authority under its contempt power to order detentions. 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 may use its contempt power as an alternative to probation revocation when the court places a child in detention for violation of grade court program, a condition of probation. 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.
The children's court sentence of two weekends of detention, one for each of two violations, was not an abuse of discretion. 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.
Placement in a local detention facility is an alternative disposition available to the court and is not a limitation on the conditions of probation the court may prescribe. State v. Henry L., 1990-NMCA-030, 109 N.M. 792, 791 P.2d 67, cert. denied, 109 N.M. 704, 789 P.2d 1271.
Without adjudication of delinquency child may not be transferred to custody of boys' school, because the school is an institution for the care and rehabilitation of delinquent children. State v. Doe, 1980-NMCA-148, 95 N.M. 90, 619 P.2d 194.
Limited detention as condition of probation. — The language "place child on probation under those conditions and limitations as the court may prescribe" is sufficiently expansive to contemplate the imposition of limited detention as a condition of probation. State v. Henry L., 1990-NMCA-030, 109 N.M. 792, 791 P.2d 67, cert. denied, 109 N.M. 704, 789 P.2d 1271.
Revocation of probation to punish for contempt. — The inherent power of the courts to punish for contempt does not validate a children's court order incarcerating a child found in need of supervision for contempt in violating probation, where such order contravenes the purpose of a reasonable Children's Code provision authorizing incarceration only after three occasions of probation violations have been found by the court. State v. Julia S., 1986-NMCA-039, 104 N.M. 222, 719 P.2d 449.
Child is not entitled to precommitment credit for time served while on probation. State v. Dennis F., 1986-NMCA-081, 104 N.M. 619, 725 P.2d 595.
First-degree murder. — The Delinquency Act authorizes an initial commitment to the age of 21 of a child who has been adjudicated delinquent for first-degree murder when the child was under 14 years of age. State v. Indie C., 2006-NMCA-014, 139 N.M. 80, 128 P.3d 508, cert. denied, 2006-NMCERT-001, 139 N.M. 273, 131 P.3d 660.
Time limitation on custody transfer void. — While the court possesses the power to transfer legal custody of delinquent children to an agency responsible for their care and rehabilitation, any attempt by the court to impose a time limitation on the transfer of custody, even if well within the time limitations already authorized by statute, is void as being in excess of the court's jurisdiction. 1979 Op. Att'y Gen. No. 79-37.
Law reviews. — 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 note, "State v. Muniz: Authorizing Adult Sentences of Juveniles Absent a Conviction that Authorizes an Adult Sentence", see 35 N.M.L. Rev. 229 (2005)
Am. Jur. 2d, A.L.R. and C.J.S. references.— 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 82 et seq.
Discrimination in punishment for same offense between juveniles and mature offenders, 3 A.L.R. 1614, 8 A.L.R. 854.
Constitutionality of statute committing child to reformatory without parents' consent, 60 A.L.R. 1342.
Notice and hearing to parent before commitment of delinquent children, 76 A.L.R. 247.
Admissibility at criminal prosecution of expert testimony on battering parent syndrome, 43 A.L.R.4th 1203.
Defense of infancy in juvenile delinquency proceedings, 83 A.L.R.4th 1135.