32.1 PURPOSE
The Children’s Mental Health and Developmental Disabilities Act (MHDD Act), §§32A-6A-1 through 32A-6A-29, is the article of the Children’s Code governing the provision of mental health care and rehabilitation services to children with developmental and mental health needs. The Act was repealed and replaced in 2007 and significant changes were made to its provisions. This chapter describes the Act as changed in 2007.

The purposes of the MHDD Act are to:

• provide children with access to appropriate assessments, services and treatment;
• provide children with access to a continuum of services to address their habilitation and treatment needs;
• provide children with access to services for identification, prevention and intervention for developmental and mental health needs;
• promote delivery of services in a culturally appropriate, responsive and respectful manner;
• protect the substantive and procedural rights of children regardless of service setting; and
• encourage support for family as critical members of the treatment or habilitation team whenever clinically appropriate. §32A-6A-2. 

The provisions of the MHDD Act apply to children who receive mental health or rehabilitation services whether or not they are affected by abuse or neglect.  §32A-6A-3.  However, children who are in state custody are at increased risk for developmental disabilities and mental health problems due to the abuse or neglect that led to their involvement with the state.  Treatment issues also arise in abuse and neglect cases in the context of treatment plans developed for children with such conditions. 

32.2 RELATIONSHIP TO ABUSE OR NEGLECT PROCEEDING
The MHDD Act outlines the rights of children and youth when receiving mental health or habilitation services regardless of setting. It also sets forth the procedures required for placing children with mental health problems or developmental disabilities in residential treatment facilities, as described later in this chapter. The Abuse and Neglect Act explains how some of these procedures are supposed to be handled for children involved in abuse or neglect proceedings.

32.3 MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES ACT
In general, habilitation refers to the services provided to children with developmental disabilities that are aimed at enabling the child to attain, maintain or regain maximum functioning or independence. §32A-6A-4(K). Treatment refers to behavioral health services provided to enable the child to attain, maintain or regain maximum functioning. §32A-6A-4(BB).

32.4  RIGHTS REGARDLESS OF SETTING
Children receiving treatment and habilitation services in New Mexico have certain rights regardless of setting (such as community outpatient services, treatment foster care, or residential services).

• Children have a right to individualized treatment or habilitation services based on an individualized treatment or habilitation plan.  §32A-6A-7. 
• Seclusion and restraint are generally prohibited, are for the most part limited to emergency use only, and in those emergencies must follow the protocol set forth in the Act.  §§32A-6A-9, 32A-6A-10, and 32A-6A-11. 
• Aversive interventions listed in the Act are also prohibited.  §32A-6A-4(A) and §32A-6A-8.

32.5 CONSENT
The MHDD Act as amended in 2007 clarifies issues related to consent to treatment or rehabilitation services, medication and residential treatment.  The MHDD Act now defines capacity to mean the ability to:

• understand and appreciate the nature and consequences of proposed health c are, including its significant benefits, risks and alternatives to proposed health care; and
• make and communicate an informed health care decision.  §32A-6A-4(C).

The law provides that a legal custodian must consent to services for a child under 14 except for a medically necessary initial assessment with a clinician limited to verbal therapy and limited to two calendar weeks.  §32A-6A-14.  This exception allows younger children to access mental health professionals for a short initial assessment of need. For children under 14, the legal custodian also has the right to release the child’s mental health or habilitation records.  §32A-6A-24(C).  Such records will also be disclosed to the child’s court-appointed guardian ad litem, without consent of either the child or the legal custodian.  §32A-6A-24(B).

A child aged 14 or older is presumed to have capacity to consent to treatment and habilitation services, and a child with capacity has the right to consent.  §32A-6A-15.  A child aged 14 or older with capacity may consent to psychotropic medication but the legal custodian must be notified.  §32A-6A-15(B).  A child aged 14 years or older can consent to residential treatment but the legal custodian must also consent to such treatment.  §32A-6A-21(B). 

A process is also set forth in the MHDD Act to allow a legal custodian to consent to services when a child aged 14 or older does not have capacity and agrees to his or her legal custodian making decisions for services.  §32A-6A-16.  However, a legal custodian cannot consent to residential treatment.  If the child does not agree to allow the legal custodian to consent to services but the child does not have capacity to consent, the procedures in the Act for obtaining a treatment guardian must be followed.  §32A-6A-16(A); §32A-6A-17.

Children aged 14 years of age or older with capacity to consent have the right to consent to release of their confidential mental health or habilitation records.  §32A-6A-24(C).  However, there are some instances when a child’s consent to release of records is not required.  For example, when a clinician determines that release without consent of the child aged 14 or older will not cause substantial harm to the child, then a summary of the child’s assessment, treatment plan, progress, discharge plan and other information essential to the child’s treatment may be released to the child’s legal custodian.  §32A-6A-24(D)(3).  A primary caregiver may also be provided with information necessary for the continuity of treatment without the child’s consent.  §32A-6A-24(D)(4).  Finally, a court may order release of records for good cause shown.  §32A-6A-24(D)(7).

32.6 OUT OF HOME PLACEMENT
Children who are placed in out of home placements have specific rights regarding their care. §32A-6A-12.  Children in treatment foster care or other out of home placements that are not residential treatment or habilitation programs as defined in the MHDD Act are afforded basic rights under the MHDD Act and can access the state’s protection and advocacy system, or may obtain representation of other attorneys to assist them to enforce any rights under the MHDD Act.  §32A-6A-13(C).  However, children are only provided with a court-appointed guardian ad litem or attorney paid by the state when placed in the most restrictive residential treatment or habilitation program as defined under the Act or when they are subject to a petition for a treatment guardian.  §32A-6A-13(A), (B).

32.7 PROCESS FOR PLACEMENT IN RESIDENTIAL TREATMENT OR HABILITATION PROGRAM
When children are placed in the most restrictive residential treatment or habilitation programs, they are afforded additional rights under the MHDD Act.  The term “residential treatment or habilitation program” is defined as the diagnosis, evaluation, care, treatment or habilitation rendered in a mental health or developmental disabilities facility when the child resides on the premises and where one or more of the following measures is available for use:

• a mechanical device to restrain or restrict the child’s movement;
• a secure seclusion area from which the child is unable to exit voluntarily;
• a facility or program designed for the purpose of restricting the child’s ability to exit voluntarily; or
• the involuntary emergency administration of psychotropic medication.  §32A-6A-4(Y).

According to the MHDD Act, the habilitation or treatment of a child must be consistent with the least restrictive means principle, which is defined in§32A-6A-4.  This means that the treatment or habilitation and the conditions of treatment or habilitation, separately or in combination:

• are no more harsh, hazardous or intrusive than necessary to achieve acceptable treatment objectives for the child;
• involve no restrictions on physical movement and no requirement for residential care, except as reasonably necessary for the administration of treatment or for the protection of the child or others from physical injury; and
• are conducted at the suitable available facility closest to the child’s place of residence.   §32A-6A-4(M). 

Placement in a residential treatment or habilitation program can be either voluntary or involuntary.  §§32A-6A-20, 32A-6A-21, and 32A-6A-22.  In both cases, the Act requires that certain procedures be followed. 

As a general rule, when involuntary placement is needed, CYFD will petition for the child’s placement under the MHDD Act and the petition will be heard by the court as part of the abuse and neglect proceeding, although it may also be heard in a separate proceeding.  §32A-4-23(B), (D).  All parties to the abuse or neglect case must be given notice of the hearing.  §32A-4-23(D).  Similarly, when a child subject to the Abuse and Neglect Act is receiving residential treatment or habilitation services, any documentation required by the MHDD Act is filed with the court as part of the abuse or neglect case.  §32A-4-23(F).  The court clerk is required to maintain a separate section within the abuse or neglect file for documents pertaining to actions taken under the MHDD Act.  §32A-4-23(G).

It is important to note that children subject to the Abuse and Neglect Act who receive residential treatment enjoy all of the substantive and procedural rights set forth in the MHDD Act.  §32A-4-23(H).

32.8 VOLUNTARY PLACEMENT

32.8.1 CHILDREN UNDER AGE FOURTEEN
A child under the age of 14 can be admitted to a residential program with the informed consent of the child’s parent, guardian or legal custodian for up to 60 days.  §32A-6A-20(B).  For children in state custody under the Abuse and Neglect Act, this means that CYFD, as legal custodian, would provide the consent.

All children under the age of 14 being admitted to residential programs have a guardian ad litem (GAL) appointed by the court for them.  §32A-6A-20(G).  In the case of a child in an abuse or neglect case, the guardian ad litem for the child in that case serves as guardian ad litem for purposes of the MHDD Act as well.  §32A-4-23(E).  The guardian ad litem has the duty to inform the child of his or her rights, which are set forth in §32A-6A-21(I) and §32A-6A-12.

The guardian ad litem must determine within seven days after admission whether the legal custodian has consented to the residential placement, whether the admission is in the child’s best interest, and whether the placement is consistent with the least drastic means principle. The GAL, representing the child’s best interests, has the duty of certifying to the court whether admission to the facility is appropriate.  §32A-6-20(G) and (H); Form 10-493.  The admission will be considered appropriate if the GAL certifies that:

• The parent, guardian or custodian understands and consents to the admission;
• The admission is in the child’s best interests; and
• The admission is appropriate for the child and consistent with the least drastic means principle.

If the GAL makes this certification to the court, the placement remains in effect and is considered voluntary even if the child disagrees with the placement.

Placements must be reviewed at least every 60 days, following the procedures and timelines set forth in the MHDD Act.  If the child’s physician or licensed psychologist determines that it is in the child’s best interest to continue the admission, the residential treatment or habilitation program will notify the GAL, who will then personally meet with the child, the child’s parent, guardian or custodian, and the child’s clinician.  It is then the GAL’s duty to ensure that the parent, guardian or custodian understands and consents to the program and to make the same type of certification as was made at the time of the initial admission.  §32A-6A-20(K).  If the GAL does not feel he or she can certify that the admission (or continued admission) is appropriate, the child must be released or involuntary placement procedures initiated.  §32A-6-20(L).  Involuntary placement is described in §32.9 below.

32.8.2 CHILDREN AGE FOURTEEN OR OLDER
Under the MHDD Act, a child fourteen years of age or older may voluntarily admit him or herself to a residential treatment or habilitation program, with the informed consent of the parent, guardian or custodian.  §32A-6A-21.   Instead of a GAL, the law requires that the child have an attorney, who is his or her own attorney, not the parents’ attorney.  If the parent does not obtain an attorney for the child, the court will appoint one.  §32A-6A-21(D).  Even if the parent obtains the attorney, the attorney represents the child, not the parent.  It is important to note that the attorney takes direction from the child as client and advocates for the child’s wishes.

In the case of a child subject to the Abuse and Neglect Act, the child’s attorney in the abuse or neglect proceeding continues to serve in the MHDD Act proceeding.  However, the child may, after consultation with this attorney, elect to be represented by counsel appointed under the MHDD Act instead.  §32A-4-23(E). 

Because children 14 years of age or older have the independent right to consent to residential placement, the child’s attorney must meet with the child and determine, within seven days after admission, whether or not the child consents to the placement.  At the meeting, the attorney must first explain to the child:

1. the child's right to an attorney;
2. the child’s right to terminate his voluntary admission and the procedures to effect termination;
3. the effect of terminating the child’s voluntary admission and the options of the physician and other interested parties to the petition for involuntary admission; and
4. the child’s rights under the MHDD Act, including the right to:
   
   
   • legal representation;
   • a presumption of competence;
   • receive daily visitors of the child's choice;
   • receive and send uncensored mail;
   • have access to telephones;
   • follow or abstain from the practice of religion;
   • a humane and safe environment;
   • physical exercise and outdoor exercise;
   • a nourishing, well-balanced, varied and appetizing diet;
   • medical treatment;
   • educational services;
   • freedom from unnecessary or excessive medication;
   • individualized treatment and habilitation; and
   • participation in the development of the individualized treatment plan and access to that plan on request.

§§32A-6A-21(I) and §32A-6A-12.

If the attorney determines that the child understands his or her rights and voluntarily and knowingly desires to remain as a patient in the residential program, the attorney will so certify on a form designated by the Supreme Court within seven days of the child’s admission. §32A-6A-21(J); Form 10-494. A child voluntarily admitted has the right to immediate discharge upon his or her request, except in those situations in which involuntary placement proceedings are commenced. The child is considered to have made a request for discharge when he or she informs the director, physician or any other member of the program staff that he desires to be discharged; this request need not be in writing. §32A-6A-21(L).

As in the case of younger children, a child 14 years of age or older who is voluntarily admitted to a treatment or habilitation program must have his or her voluntary admission reviewed every sixty days. The procedures for this review are also similar.

32.9 INVOLUNTARY PLACEMENT
Any person who believes that a child, as a result of a mental disorder or developmental disability, is in need of residential services may request that a children’s court attorney file a petition with the court for the child’s involuntary placement.  §32A-6A-22(D).  When a child asks to be discharged from a voluntary program and the director, a physician or a licensed psychologist in the program thinks that involuntary placement is needed, the request to the children’s court attorney must be made the first business day after the child requests discharge.  §32A-6A-21(L).

When the child is a child involved in a civil abuse, neglect or family in need of court-ordered services case, the CYFD children’s court attorney is the children’s court attorney for purposes of filing the petition for involuntary placement.  In other MHDD Act cases, the district attorney is the children’s court attorney for this purpose.  §32A-1-6(E).

Upon receiving the petition, the court will appoint counsel for the child if the child does not already have an attorney or GAL.  The attorney or GAL will represent the child at all stages of the proceeding.  §32A-6A-13(A).

The involuntary placement hearing must be held within seven days of an emergency admission or within five days from a child’s declaration that he or she desires to terminate his or her voluntary admission.  §32A-6A-22(G); § 32A-6A-21(L).  Seven days in this context means seven working days.  Rule 10-106 of the Children’s Court Rules and Rule 1-006 of the Rules of Civil Procedure both provide that weekends and holidays do not count when the period of time required for an action is less than eleven days.  (Note: In a case involving the adult version of the MHDD Act, the New Mexico Supreme Court held that the seven day rule was not jurisdictional and that the hearing could be postponed for good cause shown.  NM Dept. of Health v. Compton, 2001-NMSC-032, ¶18 n.3 and ¶24, 131 N.M. 204.)

The court may order involuntary placement only if it is shown by clear and convincing evidence:

• that as a result of mental disorder or developmental disability the child needs the treatment or habilitation services proposed;
• that as a result of mental disorder or developmental disability the child is likely to benefit from the treatment or habilitation services proposed;
• that the proposed involuntary placement is consistent with the treatment or habilitation needs of the child; and
• that the proposed involuntary placement is consistent with the least drastic means principle.  §32A-6A-22(K).

The court must include in its findings a statement of the legal custodian’s opinion about whether the child should be involuntarily placed, a statement of the efforts made to ascertain that opinion, or a statement explaining why it was not in the child’s best interest to have the legal custodian involved.  §32A-6A-22(J).

If the court decides that the child does not meet the criteria for involuntary placement, the child must be released from the residential treatment facility, but the court may order the child to undergo nonresidential treatment as may be appropriate and necessary or it may order no treatment.  §32A-6A-22(L).

Every child in involuntary placement has the right to periodic review, including a new hearing, at the end of each placement period.  An involuntary placement period may not exceed 60 days.  §32A-6A-22(M).

32.10 FORMS
The Supreme Court adopted several forms for use in cases under the MHDD Act. These forms were adopted in 2002, prior to the 2007 amendments.

• 10-491: Voluntary Consent to Voluntary Admission for [Residential Treatment] [Habilitation]
• 10-492: Mental Health Review Report
• 10-493: Guardian ad Litem Certification of Voluntary [Admission] [Placement] for [Residential Treatment] [Habilitation]
• 10-494: Attorney’s Certificate (that child’s rights were explained)
• 10-495: Notice of Independent Counsel (for attorney retained by parent, guardian or legal custodian)

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