33.1 PURPOSE OF THE DELINQUENCY ACT
An act committed by a child that would be designated a crime if committed by an adult is considered a “delinquent act” and addressed under the Delinquency Act, §§32A-2-1 through 32A-2-33.  Part of the Children’s Code, the Delinquency Act is intended to remove from children the adult consequences of criminal behavior while at the same time holding them accountable for their actions to the extent of the child’s age, education, mental and physical condition, background and other relevant factors. 

The Act is intended also to provide these children a program of supervision, care and rehabilitation, and to provide effective deterrents to acts of juvenile delinquency, including an emphasis on community-based alternatives. An additional purpose of the Delinquency Act is to strengthen families and to successfully reintegrate children into homes and communities.  §32A-2-2.

33.2 RELATIONSHIP BETWEEN DELINQUENCY AND ABUSE OR NEGLECT
Children who are in CYFD’s custody because of abuse or neglect are sometimes involved in the juvenile justice system as well.  Also, children who are not already in the abuse or neglect system may be placed in the care of CYFD by virtue of the delinquency proceeding.  While probation services are a part of CYFD’s Juvenile Justice Services, a social worker may also be involved in providing services to the child.
 
Delinquency proceedings focus on the acts of the child. In contrast, an abuse or neglect proceeding focuses on the acts of the parents.  The abuse and neglect case is brought if it is in the best interests of the child while the delinquency case is brought if it is in the best interest of the child and the public. Compare §32A-2-8 and §32A-4-15.

A child who is involved in both an abuse or neglect proceeding and a delinquency proceeding will be represented by a guardian ad litem or youth attorney, depending on the child’s age, in the abuse and neglect case and counsel in the delinquency case.  The term “youth attorney” is used simply to describe the attorney who represents an older youth.  Both this attorney and the youth’s attorney in the delinquency case represent the young person under the traditional client-directed model of representation.

Although the guardian ad litem (GAL) in the abuse or neglect case is an attorney, he or she performs a different role than the youth attorney and legal counsel in delinquency proceedings, both of whom are client-directed. See Chapter 6.  Until recently, in some small communities, the same attorney served both as a child’s GAL and delinquency counsel. However, the potential conflict in these roles was recognized by the Supreme Court in State v. Joanna V., 2004-NMSC-024, ¶¶12, 13, 136 N.M. 40, wherein it described the potential conflict between the role of the GAL, who represents the best interests of the child, and the attorney, who follows the instruction of the child client, even though those instructions may not be in the child’s best interests.  In 2005, the legislature amended the Children’s Code to provide that “[a] guardian ad litem shall not serve concurrently as both the child’s delinquency attorney and guardian ad litem.”  §32A-1-7(I). 

33.3 DELINQUENT CHILDREN
A “delinquent child” means a child who has committed a delinquent act.  §32A-2-3(B). A “delinquent act” is defined as an act committed by a child that would be designated as a crime under the law if committed by an adult.  §32A-2-3(A). Examples of delinquent acts include, but are not limited to, driving while intoxicated; reckless driving; illegal use of glue, aerosol spray or other chemical substance; violating the Criminal Code provisions on unauthorized graffiti; or violating an order of protection under the Family Violence Protection Act.  Id.

Children within the juvenile justice system are in one of three categories:

Delinquent Offender:  this designation refers to a child who has committed a delinquent act, who is subject to juvenile sanctions only, and who is not a youthful offender or a serious youthful offender.  §32A-2-3(C).

In American Civil Liberties Union of New Mexico v. City of Albuquerque, 1999-NMSC-044, ¶19, 128 N.M. 315, the Supreme Court held that the Children’s Code preempts local government from enacting a teen curfew ordinance which subjects minors to criminal sanctions of incarceration and fines for activity which is not unlawful when committed by adults.  As previously noted, under §32A-2-3(A), a delinquent act is an act that would be a crime if committed by an adult.  In the ACLU case, the Court reasoned that, because an adult could not be charged with violating the curfew law, it could not be a delinquent act, and held that imposing criminal sanctions on children outside the context of the Children’s Code was an invalid exercise of power by the city.  Id. ¶¶10-19.

Youthful Offender:  this designation refers to a delinquent child who is subject to juvenile or adult sanctions because he or she:

• was 14 through 18 years of age at the time of the offense and is adjudicated for second degree murder, assault with intent to commit a violent felony, kidnapping, aggravated battery, aggravated battery against a household member or upon a peace officer, shooting at a dwelling or occupied building or shooting at or from a motor vehicle, dangerous use of explosives, robbery, aggravated burglary, aggravated arson, or abuse of a child that results in great bodily harm or death to that child;
• was 14 through 18 years of age at the time of the offense and is adjudicated for any felony offense after having three prior, separate felony adjudications within a three-year period immediately preceding the present offense; or
• was 14 years old and adjudicated for first degree murder.  §32A-2-3(I).

Serious Youthful Offender:  this designation refers to an individual 15 through 18 years of age who is charged with and indicted or bound over for trial for first degree murder.  A serious youthful offender is not considered a delinquent child, being the only juvenile who can be tried as an adult in New Mexico. §32A-2-3(H).  For that reason, and because of the differences in the way the cases are handled, serious youthful offenders will not be further discussed in this chapter. 

33.4 PRELIMINARY INQUIRY; INFORMAL ACTION BY JUVENILE PROBATION OFFICER
A child becomes involved in the juvenile justice system by referral to CYFD’s Juvenile Justice Division, which provides juvenile probation and parole services.  Upon receiving the referral, CYFD will conduct a preliminary inquiry to determine the best interests of the child and the public regarding what action should be taken.  §32A-2-7(A).

At the outset of a preliminary inquiry, CYFD must advise the parties of their basic rights.  CYFD must specifically inform the child of the right to remain silent.  §32A-2-7(B).

If the child is not in custody, a preliminary inquiry must be conducted within thirty days of CYFD’s receipt of the referral from law enforcement.  This period may be extended if necessary to complete a thorough inquiry and if the extension is not prejudicial to the best interests of the child.  §32A-2-7(C). 

If the child is in detention, probation or parole services must give the child’s parent, guardian or custodian, or attorney reasonable notice of the preliminary inquiry, as well as an opportunity to be present at the preliminary inquiry.  §32A-2-7(C).  When a child is detained, CYFD must complete its preliminary inquiry and the children’s court attorney must file a delinquency petition within twenty-four hours from the time the child is taken into custody or the child must be released. §32A-2-13(A).

If, as a result of the preliminary inquiry, CYFD determines that a delinquency petition is unnecessary, it has the authority, among other things, to make referrals for services that are appropriate or desirable and to informally dispose of up to three misdemeanor charges brought against a child within two years.  §32A-2-5(B).
 
Examples of informal dispositions by the juvenile probation officer include:

• counseling and releasing the child without further action;
• referring the child to a particular program; or
• some form of informal supervision.

Some of the programs that may be available include first offender diversion programs, parent-child mediation, victim-offender mediation, family counseling, or alcohol and drug education.  Even letters of apology or essays are used. See Juvenile Referrals and Dispositions in New Mexico 1998, prepared for the New Mexico Criminal and Juvenile Justice Coordinating Council, March 2000.

If the report alleges a felony or the child has been referred for three or more prior misdemeanors within two years of the current offense, probation services must refer the case to the district attorney’s children’s court attorney (not to be confused with CYFD’s children’s court attorney, who handles abuse and neglect cases).  §32A-2-7(E)-(F).  See §32A-1-6 regarding children’s court attorneys. 

33.5 FORMAL ACTIONS

33.5.1 COMMENCEMENT OF CASE
A formal delinquency proceeding is begun by the filing of a petition in children’s court.  The petition alleging delinquency is filed by the children’s court attorney who, after consulting with probation services, has determined and endorsed on the petition that the filing of the petition is in the best interest of the public and the child.  §32A-2-8. The form of the petition is set out in the Children’s Court Rules and Forms adopted by the Supreme Court.  See Form 10-406.

The parents of the child may be joined as parties to the delinquency action and if the child is adjudicated a delinquent, may be ordered to submit to counseling or participate in any probation or other treatment program ordered by the court.  §32A-2-28. If not joined as parties, parents must be given notice of the filing of the petition. Rule 10-204(D).

A child involved in a formal delinquency proceeding is entitled to counsel and will have a public defender appointed if the child’s parent, guardian or custodian is unable or unwilling to pay for an attorney. Rule 10-205.  As noted above, a guardian ad litem appointed for a child in an abuse or neglect proceeding may not simultaneously serve as the child’s legal counsel in delinquency proceedings.  §32A-1-7(I) (2005).  No similar rule prevents a youth attorney appointed in an abuse or neglect case from representing the same child in a delinquency proceeding.  Nevertheless, a youth attorney should be alert to potential conflicts that may arise when representing a child in both kinds of cases.

The court may also appoint a guardian ad litem for the child if the child does not have a parent, guardian or custodian appearing on behalf of the child or if their interests conflict.  The court will appoint a guardian, as distinct from a guardian ad litem, if the child does not have a parent or legal guardian in a position to exercise effective guardianship.  §32A-2-14(J)- (K). 

The children’s court attorney may file with the children’s court a notice of intent to invoke an adult sentence on an alleged youthful offender.  Any such notice must be filed within 10 working days of the filing of the petition, although the court may extend the time for good cause shown prior to the adjudicatory hearing.  §32A-2-20(A). Section 32A-2-20 and Rule 10-222 outline the procedures and findings required.

The Children’s Court Rules apply in delinquency cases in children’s court.  Rule 10-101(A)(1).  The Rules of Criminal Procedure apply in district court proceedings in which a child is alleged to be a serious youthful offender.  Rule 10-101(A)(2).  In cases in which the children’s court attorney has filed a notice of intent to invoke adult sanctions and has alleged that the child is a youthful offender, the Rules of Criminal Procedure apply during the adjudicatory proceeding and the Children’s Court Rules apply during the dispositional proceeding.  State v. Stephen F., 2005-NMCA-48, ¶5, 137 N.M. 409, affirmed on this issue, 2006-NMSC-030, 140 N.M. 24.  (Note that this chapter concentrates primarily on cases of children alleged to be delinquent, not on youthful offender cases.)

33.5.2 DETENTION HEARING
The provisions of the Delinquency Act on detention were extensively amended in 2003 and 2005.  The following discussion reflects those amendments and all citations are to the law in effect September 2006.  The Children’s Court Rules may no longer comport with the Act, and hence are not cited.

If a child is taken into custody for a delinquent act, the petition alleging delinquency must be filed within 24 hours of the child coming into custody, excluding Saturdays, Sundays and holidays, and if not filed within that time, the child must be released.  §32A-2-13(A)(2).  Not all children charged with delinquent acts may be held in detention.  In 2005, the legislature decided that children under the age of 11 may not be held in detention, but may be detained and transported for emergency mental health evaluation and care if the child “poses a substantial risk of harm to himself or others.”  §32A-2-10(C).

For children 11 and older who are detained, the court must hold a detention hearing within 24 hours of filing the petition, again excluding weekends and holidays.  At the detention hearing, the court must decide whether continued detention is justified.  §32A-2-13(A)(3).   Unless ordered by the court under other provisions of the Delinquency Act, a child taken into custody for an alleged delinquent act may not be placed in detention unless a detention risk assessment instrument is completed and a determination is made that the child:

• poses a substantial risk of harm to himself;
• poses a substantial risk of harm to others; or
• has demonstrated that he may leave the jurisdiction of the court. §32A-2-11(A).

If none of these criteria exist, the court must order release of the child.  As a condition of release, the court may order one or more of the following conditions to meet the individual needs of the child:

• place the child in the custody of a parent, guardian or custodian or under the supervision of an agency agreeing to supervise the child;
• place restrictions on the child’s travel, association or place of abode; or
• impose any other condition deemed reasonably necessary and consistent with the criteria for detaining children including a condition that the child return to custody as required.  §32A-2-13(F).

If it is determined that a child must be detained pending a court hearing, the child may be placed or detained in any of the following places:

• a licensed foster home or a home authorized to provide group care;
• a facility operated by a licensed child welfare services agency;
• a shelter-care facility provided for in the Children’s Shelter Care Act, §§32A-9-1 to 32A-9-7, or a detention facility certified for children alleged to be delinquent children;
• any other suitable facility designated by the court that meets the standards for detention facilities under state and federal law, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent may be confined; or
• the child’s home or place of residence, under conditions and restrictions approved by the court.  §32A-2-12(A). 

There are special provisions for a child alleged to be a youthful offender or a serious youthful offender.  Also, a child adjudicated as a youthful offender who is violent toward staff or other residents in a detention facility may be detained in the county jail.  A child who was previously incarcerated as an adult or a person over age 18 may be detained in the county jail and may not be detained in a juvenile detention facility. In the event a child is detained in a jail, the director of the jail must takes measures to provide protection to the child, who is presumed to be vulnerable to victimization by adult inmates. §32A-2-12(B)-(E).

33.5.3 COMPETENCY
A child’s competency to stand trial or participate in his or her own defense may be raised by any party at any time during a proceeding.  If the court finds the child incompetent and the child has been accused of an offense that would be a misdemeanor if the child were an adult, the court must dismiss the delinquency petition with prejudice and may recommend that the children’s court attorney initiate proceedings under the Children’s Mental Health and Developmental Disabilities (MHDD) Act, §§32A-6A-1 through 32A-6A-29, which was significantly revised in 2007.  §32A-2-21(G). 

In all other cases, the court shall stay the proceedings until the child is competent to stand trial, but in no case shall the proceedings be stayed more than one year.  If the court stays the proceedings, it may order treatment to enable the child to attain competency to stand trial and may amend the conditions of release.  During the stay, the child’s competency must be reviewed every ninety days.  The court must dismiss the petition without prejudice if, at any time during the stay, the court finds that the child cannot be treated to competency or if, after one year, the child remains incompetent to stand trial and unable to participate in his or her own defense. Upon dismissal, the court may recommend that the children’s court attorney initiate proceedings under the Children’s MHDD Act.  §32A-2-21(G). 

33.5.4 ADJUDICATORY HEARING
The adjudicatory hearing is the equivalent of a criminal trial in an adult case in district court.  The Children’s Court Rules provide that, for the most part, the hearing should be conducted in the same manner as trials are conducted under the Rules of Criminal Procedure for the District Courts.  Rule 10-227.  A child in a delinquency case has all of the rights of an adult, except as otherwise provided in the Children’s Code.  §32A-2-14(A).

As a general rule, if the child is in detention, the adjudicatory hearing must take place within 30 days of the petition being filed or of the child being placed in detention, whichever occurs latest.  Rule 10-226(A).  If the child is not in detention or is released prior to this time limit, the adjudicatory hearing must be commenced within 120 days of the petition being served on the child.  (The 120 days could also run from a number of other events that occur less frequently.) Rule 10-226(B).  If the hearing does not take place within this time period or within any extension of time granted under the rule, the case must be dismissed with prejudice.  Rule 10-226(F).

The child is entitled to a jury trial if the act is one for which an adult would have a right to a jury trial.  This right to a jury trial may be waived only through an understanding and intelligent decision by the child.  State v. Eric M., 1996-NMSC-056, ¶6, 122 N.M. 436.  A child facing a juvenile disposition is entitled to a six-person jury; if the children’s court attorney has filed a motion to invoke adult sanctions, the child is entitled to a twelve-person jury. §32A-2-16(A).  The state does not have a right to insist on a jury trial in a delinquency case.  In re Christopher K., 1999-NMCA-157, ¶12, 128 N.M. 406.

The Rules of Evidence apply.  See Rules 10-115 and 11-1101.  Before any statement or confession by the child may be introduced into evidence, however, the state must prove that the statement or confession was elicited only after a knowing, intelligent and voluntary waiver of the child’s constitutional rights.  §32A-2-14(D). No confessions, statements or admissions may be introduced against a child under the age of 13 at all, whether made to a person in authority or simply to a friend or neighbor.  State v. Jade G., 2005-NMCA-019, 137 N.M. 128, cert. granted, 2005-NMCERT-002, 137 N.M. 265.  There is a rebuttable presumption that any confession, statement or admission made by a child age 13 or 14 to a person in a position of authority is inadmissible.  §32A-2-14(F). Section 32A-2-14 also provides children with broader rights in the area of police questioning than adults.  Miranda protections are triggered when a child is subject to investigatory detention, not custodial interrogation.  State v. Javier M., 2001-NMSC-030, ¶1, 131 N.M. 1.

Unlike abuse and neglect proceedings, delinquency hearings are generally open to the public.  However, with a finding of exceptional circumstances, the court can decide that a closed hearing is appropriate.  §32A-2-16(B).

33.5.5 TIME WAIVERS
The child, through counsel, and the children’s court attorney may agree to defer adjudication of the charges on the condition that the child comply with certain restrictions on his or her behavior.  The petition is dismissed if the child completes the conditions and no new charges are filed against the child during that time. §32A-2-7(G).  This disposition is called a “time waiver,” because the parties agree to waive the strict time limits for adjudication and disposition.

33.5.6 CONSENT DECREES
A consent decree is an order that suspends delinquency proceedings and continues a child under the supervision of probation services without a judgment. §32A-2-22(A).  Any time before the court’s entry of its judgment in a delinquency proceeding, either party may move the court to suspend the proceedings and continue the child’s supervision with certain agreed-upon terms and conditions. §32A-2-22(A); In re Crystal L., 2002-NMCA-063, 132 N.M. 349.  Although Crystal L. held that a court could only accept a consent decree if the child admitted guilt, the legislature eliminated this requirement in 2005.  §32A-2-22(A).  Entry of a consent decree is within the court’s discretion.  §32A-2-22(A); In re Crystal L., 2002-NMCA-063, ¶10, 132 N.M. 349.  In addition, the 2005 amendments eliminated the provision restricting the court from issuing more than one consent decree every two years per child.  Compare §32A-2-22(H) prior to 2005 and §32A-2-22 (as amended in 2005, deleting subsection (H)). 

A consent decree remains in force for six months unless the child is discharged earlier by probation services or the court extends the consent decree for an additional six months upon the application of CYFD.  No hearing is required on the department’s application to extend the probation unless the child objects.  §32A-2-22(C). 

If the children’s court attorney believes that the child is not fulfilling the terms of the consent decree, the attorney may file a petition to revoke the consent decree. Proceedings on the petition are conducted in the same manner as proceedings on petitions to revoke probation.  If the court finds that the child violated the consent decree, the court may extend the period of the consent decree or make any other disposition that would have been appropriate in the original proceeding, including reinstatement of the original delinquency petition. §32A-2-22(D).

The court retains jurisdiction to hear a timely filed petition to revoke a child’s consent degree after the probation period has expired. State v. Katrina G., 2007-NMCA-048, 141 N.M. 501. Rule 10-226 governs the time limits within which the court must hear a petition to revoke a child’s probation, not Section 32A-2-22(E).  ¶¶12, 19. 

A judge who elicits or examines information or material about a child during consent decree proceedings that would be inadmissible in a hearing on the allegations of the delinquency petition shall not participate in any subsequent delinquency proceedings if the child objects and either: (1) the consent decree is denied and the allegations in the petition remain to be decided in a hearing where the child denies them; or (2) a consent decree is granted but the delinquency petition is subsequently reinstated. §32A-2-22(F).

33.5.7 DISPOSITIONAL HEARING
If the child is in detention, the dispositional hearing must begin within 30 days from the date the court concludes the adjudicatory hearing in a delinquency proceeding or trial in a youthful offender proceeding or accepts from the child an admission of the factual allegations of the petition.

Copies of any social, diagnostic or other predisposition reports ordered by or submitted to the court must be provided to the parties at least five days before the actual disposition or sentencing. §32A-2-17(A); Rule 10-229(A)-(B). The Court of Appeals recently held that predispositional studies are required for the disposition of youthful and serious youthful offenders based on the purpose behind the Children’s Code. State v. Jose S., 2007-NMCA-146, ¶16, cert. granted, No. 30,696 (November 7, 2007).  The court also held that upon making a finding of non-amenability, the trial court must order a subsequent predisposition report from the adult department of corrections and thereafter conduct a separate sentencing hearing at a later time.  ¶17.  Where the trial court denied the child a predisposition report, the child need not show specific prejudice given that the child would have no way of demonstrating that the report would have been favorable to him.  Id.

The court may order a child adjudicated as a delinquent child to be committed to a facility for purposes of diagnosis and recommendations to the court as to what disposition is in the best interest of the child and the public.  In this case, the dispositional hearing must be recommenced within 45 days after the filing of the court order committing the child for evaluation. Rule 10-229(C); see also §32A-2-17.  However, if the child is in detention, the dispositional proceedings shall commence within thirty days from the date the court concludes the adjudicatory hearing in a delinquency proceeding or trial in a youthful offender proceeding or accepts an admission of the petition’s factual allegations.  Rule 10-229(B).  These time limits apply both to delinquent offenders and youthful offenders. State v. Stephen F., 2006-NMSC-030, ¶9, 140 N.M. 24.  When the court or the state is unable to present evidence relevant to a disposition or commence the hearing within the time required, the child should be released from detention until the hearing can proceed.  Rule 10-229(C), effective for cases filed on or after March 15, 2006, allows the court to set appropriate conditions on that release.

As in an abuse or neglect case, the dispositional hearing is not subject to the Rules of Evidence.  All relevant and material evidence may be received, even if it would not be competent if it were offered during the adjudicatory hearing. §32A-2-16(G); Rule 11-1101 of the Rules of Evidence.

The court can make any number of dispositions for the supervision, care, and rehabilitation of the child, depending on the delinquent act committed the child and the child’s circumstances.  §32A-2-19(B).  The court is limited to options specifically provided for in the Children’s Code.  State ex rel. CYFD v. Paul G., 2006-NMCA-038, ¶15, 139 N.M. 258.  Options, singly or in combination, include:

• a fine;
• transfer of legal custody to CYFD through its Juvenile Justice Division.  CYFD would then determine the appropriate placement, supervision and rehabilitation program for the child, considering the judge’s recommendations for placement, if any.  Types of commitment include:
• a short-term commitment of one year, of which a maximum of 9 months may be served in a facility and at least 90 days must be served on parole;
• a long-term commitment of no more than two years in a facility for the care and rehabilitation of adjudicated delinquent children (such as the Girls’ School or Boys’ School), of which no more than 21 months shall be served at the facility and at least 90 days must be served on parole;
• if youthful offender felonies were committed, a commitment to age 21, unless discharged sooner, regardless of the age of the offender (State v. Indie C., 2006-NMCA-014, ¶8, 139 N.M. 80);
• probation;
• restitution;
• community service; and or
• denial or revocation of driving privileges. §32A-2-19(B).

Section 32A-2-19(B)(2) does not authorize the court to impose a disposition allowing a commitment less than to age twenty-one, unless it is a short-term commitment of one year or a long-term commitment of no more than two years.  Paul G. ¶20.  Until recently, the court could also impose any disposition authorized for an abused or neglected child under the Abuse and Neglect Act. §32A-2-19(B)(1) (2003).  To protect the due process rights of parents, the legislature eliminated this provision in 2005.  Instead, the court may now refer the child and family to CYFD for an abuse or neglect investigation and, if warranted, abuse or neglect proceedings.  §32A-2-19(G).

Before a short-term commitment of one year expires, the court may extend the judgment for one six-month period if the court finds that the extension is necessary to safeguard the welfare of the child or the public safety.  Notice and hearing are required for any such extension to take place.  If a short-term commitment is extended, the mandatory ninety-day parole shall be included in the extension.  §32A-2-23(D).

Before a long-term commitment of two years expires, the court may extend the judgment for additional periods of one year until the child turns 21 if necessary to safeguard the welfare of the child or the public interest.  Notice and hearing are required for any such extension to take place.  If a long-term commitment is extended, the mandatory ninety-day parole shall be included in the extension. §32A-2-23(E).

The court may also extend a judgment of probation for an additional period of one year until the child reaches 21, if necessary to protect the community or safeguard the child’s welfare. §32A-2-23(F).

When the child is an Indian child, the Indian child’s cultural needs must be considered in the dispositional judgment and reasonable access to cultural practices and traditional treatment must be provided. §32A-2-19(C).

The court may not impose consecutive commitments on the same child.  State v. Adam M., 2000-NMCA-049, ¶14, 129 N.M. 146.  However, it may impose two separate concurrent commitments arising out of different facts at the same hearing, as long as each commitment is statutorily authorized.  State v. Jose S., 2005-NMCA-094, ¶11, 138 N.M. 44.

Rule 10-230.1(B)(1) governs the time limits for a child to file a motion to reconsider the disposition in a delinquency case. Where the initial commitment period is two years or less, the deadline for filing the motion is within thirty days after the judgment is filed. However, that thirty-day limit does not apply to court-invited motions to reconsider.  State v. Dylan A., 2007-NMCA-114, ¶29, cert. granted, No. 30,539 (August 8, 2007). 

While most delinquent acts subject the child only to juvenile sanctions, the children’s court may order the imposition of adult sanctions in the case of youthful offenders.  §32A-2-20(A).  The Court of Appeals has held that the law allowing the trial judge to decide whether to impose a juvenile or adult sentence is constitutional.  According to the court in State v. Ernesto M., Jr., the Delinquency Act adequately protects the child’s right to due process and is not unconstitutionally vague.  1996-NMCA-039, ¶¶3-8, 121 N.M. 562.

To invoke an adult sentence, the court must find under §32A-2-20(B) that:

• the child is not amenable to treatment or rehabilitation as a child in available facilities; and
• the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders.  See Handbook Chapter 32 on the Children’s Mental Health and Developmental Disabilities Act.

The statute lists several factors that judges will consider when making their findings, including a rebuttable presumption that a child who has previously been sentenced as an adult is not amenable to treatment or rehabilitation as a child in available facilities.  §32A-2-20(D).

A youthful offender given an adult sentence is then treated as an adult offender and transferred to the legal custody of an agency responsible for incarceration of persons sentenced to adult sentences. §32A-2-20(E).  The determination of guilt at trial also becomes a conviction under the Criminal Code and hence may apply toward habitual offender status. §32A-2-18(C); §31-18-1 et seq.

Children over 14 who have been charged with first degree murder, but who are found guilty of only youthful offenses or delinquent acts, are subject to disposition for those offenses only.  §32A-2-20(G) and (H) (as amended in 2005).  In other words, children over 14 who are charged with first degree murder, but who are found to have committed a youthful offense only, may be sentenced as adults if the court finds that the child is not amenable to treatment or rehabilitation as a child in available facilities or the child is not eligible for commitment to an institution for children with developmental disabilities.  §32A-2-20(B) and (G).  Likewise, children over 14 who are charged with first degree murder, but who are found to have committed delinquent acts only, are subject to disposition as delinquents.  §§32A-2-19 and 32A-2-20(H).  These statutory changes effectively overrule State v. Muniz, 2003-NMSC-021, 134 N.M. 152, which allowed the courts to sentence children over 14 who had been charged with first degree murder as adults even if they had only been convicted of a youthful or delinquent offense.

33.5.8 REVOCATION OF PROBATION
Proceedings to revoke probation are governed “by the procedures, rights and duties applicable to proceedings on a delinquency petition,” except that the hearing is held before the judge without a jury. To establish a violation of probation in a delinquency proceeding, the State must prove the violation beyond a reasonable doubt and must prove willful conduct on the part of the probationer. In re Bruno R., 2003-NMCA-057, ¶11, 133 N.M. 566; see also §32A-2-24(A) and (B).

In Matter of Aaron L., 2000-NMCA-024, 128 N.M. 641, the Court of Appeals held that Rule 10-224, requiring that the court address the child and ensure that the child understands the charges and that an admission is voluntary, applies to probation revocations as well as delinquency proceedings, by virtue of §32A-2-24. “[T]he trial court had an affirmative duty under Rule 10-224(C) to ascertain whether Child’s admission was supported by an adequate factual basis and whether Child’s admission was knowing, intelligent, and voluntary.” Id. ¶16. Extrajudicial admissions and confessions are not sufficient to prove beyond a reasonable doubt that a child committed delinquent acts, including violations of probation, absent other corroborating evidence. In re Bruno R., 2003-NMCA-057, ¶17, 133 N.M. 566.

In State v. Erickson K., 2002-NMCA-058, ¶18, 132 N.M. 258, the court held that the Rules of Evidence apply to the adjudicatory portion of a juvenile probation revocation hearing. While the Rules are inapplicable to adult probation revocation hearings under Rule 11-1101(D)(2), they do apply to juvenile hearings. As a result, “the children’s court must take pains to maintain some separation between disputed adjudicatory issues and the dispositional matters that arise as a consequence of that adjudication.” The Rules of Evidence do not apply to the dispositional phase. Id. ¶17.

33.5.9 APPEALS
A child has a right to appeal a judgment under the Delinquency Act. Appeals from judgments and dispositions on petitions alleging delinquency are governed by the Rules of Appellate Procedure. §32A-1-17(A); Rule 10-230(C).

33.6 MOTOR VEHICLE CASES
Jurisdiction over children who commit Motor Vehicle Code violations is split between Children’s Court and the courts of limited jurisdiction (municipal, magistrate and metropolitan).  §32A-2-29.  Generally, Children’s Court has jurisdiction over the most serious offenses and any offenses alleged to have been committed by the child arising out of the same occurrence.  The complete list of offenses is listed in §32A-2-3(A)(1).  Only the Children’s Court may incarcerate a child who has been found guilty of traffic offenses.

33.7 CONFIDENDIALITY OF JUVENILE RECORDS
With certain limited exceptions, all social records pertaining to a child involved in the juvenile justice system are confidential and may not be disclosed directly or indirectly to the public.  §32A-2-32(A). Social records include, but are not limited to:

• diagnostic evaluations;
• psychiatric reports;
• medical reports;
• social studies reports;
• records from local detention facilities; 
• client-identifying records from facilities for the care and rehabilitation of delinquent children; and
• pre-parole reports and supervision histories obtained by the juvenile probation office, parole officers and parole board or in the possession of CYFD.  §32A-2-32(A).

These social records may be disclosed to only the following individuals or entities:

• court personnel;
• CASAs;
• the child’s attorney or guardian ad litem;
• CYFD personnel;
• any local substitute care review board or agency contracted to implement same;
• corrections department personnel;
• law enforcement officials;
• district attorneys;
• any state government social services agency in any state;
• those persons or entities of a child’s Indian tribe specifically authorized to inspect such records under the Indian Child Welfare Act or its regulations;
• tribal juvenile justice system and social services representatives;
• a foster parent, if the records are those of a child currently placed with the foster parent or of a child being considered for placement with that foster parent, and if the records disclose information that is necessary for the child’s treatment or care.  Only that information necessary for the treatment and care of the child may be disclosed;
• school personnel involved with the child if the records concern the child’s educational needs and are necessary for educational planning.  Only that information necessary to provide for the educational needs of the child shall be disclosed;
• health care or mental health professionals involved in the evaluation or treatment of the child, the child’s parents, guardians or custodian, or other family members;
• representatives of the protection and advocacy system;
• the child’s parent, guardian or legal custodian, when the disclosure is necessary for the child’s treatment or care.  The disclosure shall include only that information necessary to the child’s treatment or care; and
• Any other person or entity, by order of the court, having a legitimate interest in the case or the work of the court.  §32A-2-32(B).

33.8 SEALING OF RECORDS
Children’s Court Rule 10-233(A) provides that when a filed delinquency petition does not result in an adjudication of delinquency, the Children’s Court attorney must present the court with an order sealing the files and records in the case, which the court must enter upon the case’s conclusion.  This rule implements the automatic sealing of record provision of §32A-2-26(G), enacted in 2003.  Records are also supposed to be sealed automatically if two years have passed since the person was released from legal custody and supervision and there have been no new allegations of delinquency.  §32A-2-26(H).

In addition to the automatic sealing of records, §32A-2-26 continues to allow for sealing of records by motion.  The court will seal records upon motion if the court finds that two years have elapsed since the final release of the person from legal custody and supervision, or two years have elapsed since the entry of any other judgment not involving legal custody or supervision, and the person has not, within the past two years, been convicted of a felony or of a misdemeanor involving moral turpitude or been found delinquent by a court and no proceeding is pending seeking such a conviction or finding. §32A-2-26(A).

Following the entry of a sealing order, the proceedings are required to be treated as if they never occurred and all index references to the matter deleted.  If an inquiry about the case is made, “the court, law enforcement and state agencies and departments shall reply, and the person may reply, to an inquiry that no record exists with respect to the person.”  §32A-2-26(C).  However, a finding of delinquency or conviction of a crime following the sealing of records may, within the court’s discretion, be used by it as a basis for setting aside the order.  §32A-2-26(E). 

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