HB0334

HOUSE BILL 334

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Andrea Reeb and Nicole Chavez and Alan T. Martinez

AN ACT

RELATING TO CHILDREN; PROVIDING THAT A REPORT OF COMPETENCY EVALUATION SHALL INCLUDE A QUALIFIED PROFESSIONAL'S OPINION AS TO WHETHER A CHILD IS COMPETENT FOR ADJUDICATION AND IF, IN THE OPINION OF THE PROFESSIONAL, THE CHILD IS NOT COMPETENT, TO INCLUDE AN OPINION AS TO WHETHER THE CHILD SATISFIES THE CRITERIA FOR INVOLUNTARY PLACEMENT; PROVIDING FOR COMMUNITY-BASED COMPETENCY RESTORATION FOR NONDANGEROUS CHILDREN; PROVIDING A LIST OF CRIMES FOR WHICH A CHILD MAY BE CRIMINALLY COMMITTED; PROVIDING THAT WITHIN NINETY DAYS AFTER THE COURT ISSUES AN ORDER FOR INVOLUNTARY PLACEMENT OR COMMITMENT, THE COURT SHALL CONDUCT A REVIEW HEARING TO DETERMINE COMPETENCY; PROVIDING THAT A COURT MAY HOLD A CRIMINAL COMMITMENT HEARING IF THE CHILDREN'S COURT DETERMINES THAT THERE IS NOT A SUBSTANTIAL PROBABILITY THAT THE CHILD WILL BE RESTORED TO COMPETENCY; ALLOWING A COURT TO AUTHORIZE A CHILDREN'S COURT ATTORNEY OF THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT TO USE THE REPORT; PROVIDING THAT THE CHILDREN'S COURT SHALL HOLD A HEARING TO DETERMINE WHETHER THE CHILD IS NOT COMPETENT DUE TO A DEVELOPMENTAL OR INTELLECTUAL DISABILITY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 32A-2-21 NMSA 1978 (being Laws 1993, Chapter 77, Section 50, as amended) is amended to read:

"32A-2-21. DISPOSITION OF A CHILD WITH A MENTAL DISORDER OR DEVELOPMENTAL DISABILITY IN A DELINQUENCY PROCEEDING.--

A. If in a hearing at any stage of a proceeding on a delinquency petition the evidence indicates that the child has or may have a mental disorder or developmental disability, the court may:

(1) order the child detained if appropriate under the criteria established pursuant to the provisions of the Delinquency Act; and

(2) initiate proceedings for the involuntary placement or commitment of the child as a minor with a mental disorder or developmental disability pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

B. If the child is placed for residential treatment or habilitation pursuant to the Children's Mental Health and Developmental Disabilities Act, the department shall retain legal custody during the period of involuntary placement or commitment or until further order of the court.

C. If a child is committed to a psychiatric hospital for treatment or habilitation and in the event that the department should be required to pay more than four hundred dollars ($400) per day because of the individualized treatment plan, the annual costs over four hundred dollars ($400) per child per day will be reported annually by the department to the legislative finance committee.

D. The child may remain in the residential treatment or habilitation facility pending the disposition of the delinquency petition.

E. When a child in departmental custody needs involuntary placement or commitment for residential mental health or developmental disability services as a result of a mental disorder or developmental disability, the department shall request the children's court attorney to petition for that child's placement pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

F. A child subject to the provisions of the Delinquency Act who receives treatment in a residential treatment or habilitation program shall enjoy all the substantive and procedural rights set forth in the Children's Mental Health and Developmental Disabilities Act.

[G. A child's competency to stand trial or participate in his own defense may be raised by a party at any time during a proceeding. If the child has been accused of an act that would be considered a misdemeanor if the child were an adult and the child is found to be incompetent to stand trial, the court shall dismiss the petition with prejudice and may recommend that the children's court attorney initiate proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act. In all other cases, the court shall stay the proceedings until the child is competent to stand trial; provided that a petition shall not be stayed for more than one year. The court may order treatment to enable the child to attain competency to stand trial and may amend the conditions of release pursuant to Sections 32A-2-11 and 32A-2-13 NMSA 1978. The child's competency to stand trial shall be reviewed every ninety days for up to one year. The court shall dismiss the petition without prejudice if, at any time during the year, the court finds that a child cannot be treated to competency or if, after one year, the court determines that a child is incompetent to stand trial or participate in his own defense. Upon dismissal, the court may recommend that the children's court attorney initiate proceedings pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

H.] G. Involuntary residential treatment shall only occur pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act.

H. A question regarding a child's competency for adjudication or participation in the child's own defense may be raised by any party or the court at any time during a proceeding. If a party or the court raises a question as to a child's competency, the delinquency proceeding shall be suspended until the question is resolved.

I. A child's competency shall be evaluated by a psychologist or psychiatrist or other qualified professional recognized by the children's court as an expert. The qualified professional who evaluates a child's competency shall prepare an evaluation report and submit the report as ordered by the court.

J. An evaluation report shall include a qualified professional's opinion as to whether a child is competent for adjudication and has:

(1) a sufficient, present ability to consult with the child's lawyer with a reasonable degree of rational understanding;

(2) a rational and factual understanding of the proceedings against the child; and

(3) the capacity to assist in the child's own defense and to comprehend the reasons for punishment.

K. If, in the opinion of the qualified professional, a child is not competent for adjudication, an evaluation report shall include the qualified professional's opinion as to whether the child satisfies the criteria for involuntary placement or commitment in accordance with the Children's Mental Health and Developmental Disabilities Act.

L. A competency hearing shall be held:

(1) within thirty days from the date an evaluation report is submitted to the court for a detained child alleged to have committed a felony;

(2) within ten days from the date an evaluation report is submitted to the court for a detained child alleged to have committed a misdemeanor; and

(3) within a reasonable time after an evaluation report is submitted to the court for a child who is not detained."

SECTION 2. A new section of the Delinquency Act, Section 32A-2-21.1 NMSA 1978, is enacted to read:

"32A-2-21.1. [NEW MATERIAL] DETERMINATION OF COMPETENCY--INVOLUNTARY PLACEMENT OR COMMITMENT--REPORT.--

A. If, after a competency hearing, a court determines that a child is not competent for adjudication, the court shall determine if the child is dangerous. A child who is not competent is dangerous if the court finds by clear and convincing evidence that the child presents a serious threat of:

(1) committing murder in the first or second degree, as provided in Section 30-2-1 NMSA 1978;

(2) inflicting great bodily harm, as defined in Section 30-1-12 NMSA 1978, on another person;

(3) committing criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(4) committing criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

(5) committing abuse of a child, as provided in Subsection D of Section 30-6-1 NMSA 1978;

(6) violating a provision of the Sexual Exploitation of Children Act;

(7) committing human trafficking, as provided in Section 30-52-1 NMSA 1978;

(8) committing aggravated arson, as provided in Section 30-17-6 NMSA 1978; or

(9) committing any "serious violent offense" enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection N of Section 33-2-34 NMSA 1978 with the use of a firearm.

B. If the court determines that a child is not dangerous, the court may order the child to participate in a nonresidential treatment or habilitation program or dismiss the delinquency petition without prejudice in the interests of justice; provided that if the court dismisses the petition, the court may:

(1) advise the children's court attorney to consider the initiation of involuntary placement or commitment proceedings in accordance with the Children's Mental Health and Developmental Disabilities Act and may order the child's detention at a detention facility for a maximum of seven days to facilitate initiation of those proceedings; or

(2) advise the children's court attorney to consider initiation of proceedings in accordance with the Children's Mental Health and Developmental Disabilities Act but may not detain a child for that purpose.

C. A treatment plan for a nonresidential treatment or habilitation program that is ordered pursuant to this section shall be targeted to restore a child to competency. A court may order a child to participate in a nonresidential treatment or habilitation program for no longer than ninety days, and:

(1) within thirty days of the date that the child was ordered to participate in the program, the person supervising the child's treatment or habilitation shall submit a progress report to the court and both parties that includes:

(a) an initial assessment of the child and a description of the programming that will be provided to the child;

(b) a report on the child's amenability to competency restoration;

(d) an opinion as to the probability of the child being restored to competency within ninety days from the date that the court ordered the child's participation in the program;

(2) no later than ninety days from the date that the court ordered the child to participate in a nonresidential treatment or habilitation program, the court shall hold a review hearing and determine if the child has been restored to competency, and at least seven days prior to the review hearing, the person supervising the child's treatment or habilitation shall submit a written report that includes:

(a) an opinion as to whether the child has been restored to competency;

(b) if the child is receiving medication, information from the prescribing physician about the type, dosage and effect of the medication on the child's appearance, actions and demeanor;

(c) if the child remains not competent, an opinion as to whether the child satisfies the criteria for involuntary commitment in accordance with the Children's Mental Health and Developmental Disabilities Act and whether: 1) as a result of a mental disorder, the child presents a likelihood of serious harm to the child's self or others; 2) the child needs and is likely to benefit from involuntary placement and treatment; and 3) the proposed placement is consistent with the treatment needs of the child and the least drastic means principle; and

(d) if the child remains not competent, an opinion as to whether the child satisfies the criteria for involuntary placement in accordance with the Children's Mental Health and Developmental Disabilities Act and whether the child: 1) has a primary diagnosis of a mental disorder; 2) has demonstrated a history of lack of compliance with treatment for a mental disorder; 3) is unwilling or unlikely, as a result of a mental disorder, to participate in voluntary treatment that would enable the child to live safely in the community with the child's natural supports and without court supervision; 4) is in need of residential treatment or habilitation as the least restrictive appropriate alternative to prevent a relapse or deterioration likely to result in serious harm to the child's self or others; and 5) will likely benefit from residential treatment or habilitation and have the child's best interests served; and

(3) if, after a review hearing, the court finds that the child is competent, the petition shall proceed to the adjudication hearing, but if the court finds that the child remains not competent, the case shall be dismissed without prejudice and the court may advise the children's court attorney to consider initiating proceedings in accordance with the Children's Mental Health and Developmental Disabilities Act.

D. If the court determines that a child who is not competent is dangerous, the court may order the child's placement at a residential treatment or habilitation program for competency restoration. If the court orders such placement, the court shall enter a transport order that provides for the child's return to the local detention facility within seventy-two hours upon the child being restored to competency, completion of the competency residential treatment or habilitation program or as otherwise required by the court. A child placed at a residential treatment or habilitation program for competency restoration shall be provided with treatment available to children subject to involuntary placement and shall:

(1) be detained by the department in a secure, locked facility; and

(2) not be released from that facility except pursuant to an order of the court that committed the child.

E. The department shall admit a child for competency restoration within thirty days of receipt of the court's order of commitment of an incompetent child and of the necessary and available documents reasonably required for admission pursuant to written policies adopted by the secretary of children, youth and families or the secretary's designee. If the secretary of children, youth and families or the secretary's designee determines that the department does not have the ability to meet the needs of the child, the secretary or the secretary's designee may refuse admission by providing written certification to the committing court and the parties of the department's inability to meet the needs of the child. The certification shall be made within fourteen days of the receipt of the court's order of commitment and necessary and available documents reasonably required for admission pursuant to written policies adopted by the secretary of children, youth and families or the secretary's designee. Within ten days of filing of the certification, the court shall conduct a hearing for further disposition of the criminal case.

F. Within thirty days of a child's admission to a facility for competency restoration, the department shall file with the court, the state and the defense:

(1) an initial assessment of the child and treatment plan;

(2) a report on the child's amenability to competency restoration;

(3) an assessment of the department's capacity to provide appropriate treatment for the child; and

(4) an opinion as to the probability of the child being restored to competency within nine months from the date the court determined the child is not competent for adjudication."

SECTION 3. A new section of the Delinquency Act, Section 32A-2-21.2 NMSA 1978, is enacted to read:

"32A-2-21.2. [NEW MATERIAL] DETERMINATION OF COMPETENCY--NINETY-DAY REVIEW--REPORTS--CONTINUING TREATMENT.--

A. Within ninety days after a court issues an order for involuntary placement or commitment of a child for competency restoration, the court, sitting without a jury, shall conduct a review hearing, unless waived by the defense, and shall determine:

(1) whether the child has been restored to competency or remains not competent for adjudication;

(2) if the child remains not competent, whether the child is making progress under treatment toward being restored to competency within nine months from the date the court determined the defendant is not competent for adjudication; and

(3) whether the child remains dangerous as determined by the court.

B. At least seven days prior to the review hearing, the treatment supervisor shall submit a written progress report to the court, the state and the defense that includes:

(1) the clinical findings regarding the child's progress toward competency restoration and the facts upon which the findings are based;

(2) an opinion as to whether the child has been restored to competency or as to whether the child is making progress toward being restored to competency within nine months from the date the court determined the child is not competent for adjudication and whether there is a substantial probability that the child will be restored to competency within nine months from the date the court determined the child is not competent for adjudication;

(3) an opinion as to whether the child remains dangerous as determined by the court; and

(4) if the child is receiving medication, information from the prescribing physician indicating the type, dosage and effect of the medication on the child's appearance, actions and demeanor.

C. If the children's court finds the child is restored to competency, the court shall set the matter for adjudication; provided that if the child is in need of continued care or treatment and the department agrees to continue to provide it, the court may order continued care or treatment of the child until the conclusion of the delinquency proceedings.

D. If the children's court finds that the child remains not competent but is making progress toward being restored to competency, the court may continue or modify its original treatment order entered; provided that:

(1) the question of the child's competency shall be reviewed again not later than nine months from the date the court determined the child is not competent for adjudication; and

(2) the treatment supervisor shall submit a written progress report as specified in Subsection B of this section at least seven days prior to such hearing.

E. If the children's court finds that the child remains not competent, that the child is not making progress toward being restored to competency and that there is not a substantial probability that the child will be restored to competency within nine months from the date the court determined the child is not competent for adjudication, the court shall proceed pursuant to Section 32A-2-21.4 NMSA 1978. However, if the child is in need of continued care and treatment and the department agrees to continue to provide continued care and treatment, the children's court may order continued care or treatment of the child by the department until the conclusion of the delinquency proceedings."

SECTION 4. A new section of the Delinquency Act, Section 32A-2-21.3 NMSA 1978, is enacted to read:

"32A-2-21.3. [NEW MATERIAL] DETERMINATION OF COMPETENCY--INCOMPETENT CHILDREN.--If at any time the children's court determines that there is not a substantial probability that a child will be restored to competency within nine months from the date the court determined the child is not competent for adjudication, the children's court may:

A. hold a child commitment hearing in accordance with Section 32A-2-21.4 NMSA 1978 within three months if the child is charged with:

(1) murder in the first or second degree, as provided in Section 30-2-1 NMSA 1978;

(2) a felony involving infliction of great bodily harm, as defined in Section 30-1-12 NMSA 1978, on another person;

(3) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

(4) criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;

(5) abuse of a child, as provided in Subsection D of Section 30-6-1 NMSA 1978;

(6) a crime provided for in the Sexual Exploitation of Children Act;

(7) human trafficking, as provided in Section 30-52-1 NMSA 1978;

(8) aggravated arson, as provided in Section 30-17-6 NMSA 1978; or

(9) any "serious violent offense" enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection N of Section 33-2-34 NMSA 1978 with the use of a firearm;

B. release the child from custody and dismiss the petition with prejudice; or

C. dismiss the petition without prejudice in the interest of justice; provided that if the treatment supervisor reports to the court that the child satisfies the criteria for involuntary commitment in accordance with the Children's Mental Health and Developmental Disabilities Act, the department shall initiate those proceedings, and the court may order the detention of the child for a maximum of seven days to facilitate the initiation of those proceedings; and provided further that the children's court attorney may initiate involuntary placement or commitment proceedings in the department's stead."

SECTION 5. A new section of the Delinquency Act, Section 32A-2-21.4 NMSA 1978, is enacted to read:

"32A-2-21.4. [NEW MATERIAL] DETERMINATION OF COMPETENCY--CRIMINAL COMMITMENT--EVIDENTIARY HEARING.--

A. If the court determines that there is not a substantial probability that a child who is not competent for adjudication will be restored to competency, a disposition hearing to determine the sufficiency of the evidence of the child's guilt shall be held if the child is charged with: