0001| HOUSE BILL 767
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| TERRY T. MARQUARDT
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO JUVENILE JUSTICE; CHANGING THE AGE DESIGNATIONS AND
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0012| PREDICATE OFFENSES FOR SERIOUS YOUTHFUL OFFENDERS AND YOUTHFUL
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0013| OFFENDERS; REVISING DISPOSITIONS PURSUANT TO THE DELINQUENCY
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0014| ACT; PROVIDING THAT A SERIOUS YOUTHFUL OFFENDER OR YOUTHFUL
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0015| OFFENDER MAY NOT FILE A MOTION TO SEAL HIS RECORDS; PROVIDING
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0016| FOR PARENTAL FINANCIAL LIABILITY AND RESPONSIBILITY; AMENDING
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0017| SECTIONS OF THE NMSA 1978.
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0018|
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0019| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0020| Section 1. Section 31-18-15.2 NMSA 1978 (being Laws 1993,
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0021| Chapter 77, Section 1, as amended) is amended to read:
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0022| "31-18-15.2. DEFINITIONS.--As used in the Criminal
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0023| Sentencing Act:
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0024| A. "serious youthful offender" means an individual:
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0025| (1) [fifteen] fourteen to eighteen years
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0001| of age at the time of the offense who is charged with,
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0002| [and] indicted or bound over for trial for [first degree
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murder; and] one of the following offenses:
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0004| (a) first degree murder, as provided in
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0005| Section 30-2-1 NMSA 1978;
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0006| (b) second degree murder; as provided in
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0007| Section 30-2-1 NMSA 1978;
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0008| (c) voluntary manslaughter, as provided
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0009| in Section 30-2-3 NMSA 1978;
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0010| (d) aggravated assault with a deadly
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0011| weapon, as provided in Subsection A of Section 30-3-2 NMSA
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0012| 1978;
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0013| (e) aggravated battery inflicting great
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0014| bodily harm or with a deadly weapon, as provided in Subsection
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0015| C of Section 30-3-5 NMSA 1978;
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0016| (f) kidnapping, as provided in Section
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0017| 30-4-1 NMSA 1978; or
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0018| (g) robbery while armed with a deadly
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0019| weapon, as provided in Section 30-16-2 NMSA 1978; or
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0020| (2) fourteen to eighteen years of age who is
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0021| charged with committing at least one of the offenses set forth
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0022| in Subsection A of Section 32A-2-3 NMSA 1978 and who has
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0023| previously been committed to the custody of the corrections
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0024| department as a serious youthful offender or youthful offender;
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0025| and
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0001| B. "youthful offender" means a delinquent child
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0002| subject to adult or juvenile sanctions who is:
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0003| (1) [fourteen to] less than eighteen years
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0004| of age at the time of the offense and who is adjudicated for at
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0005| least one of the following offenses:
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0006| [(a) second degree murder, as provided
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in Section 30-2-1 NMSA 1978;
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(b)] (a) assault with intent to
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0009| commit a violent felony, as provided in Section 30-3-3 NMSA
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0010| 1978;
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0011| [(c) kidnapping, as provided in Section
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30-4-1 NMSA 1978;
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(d) aggravated battery, as provided in
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Subsection C of Section 30-3-5 NMSA 1978;
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(e)] (b) aggravated battery upon a
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0016| peace officer, as provided in [Subsection C of] Section
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0017| 30-22-25 NMSA 1978;
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0018| [(f)] (c) shooting at a dwelling or
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0019| occupied building or shooting at or from a motor vehicle, as
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0020| provided in Section 30-3-8 NMSA 1978;
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0021| [(g)] (d) dangerous use of
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0022| explosives, as provided in Section 30-7-5 NMSA 1978;
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0023| [(h)] (e) criminal sexual
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0024| penetration, as provided in Section 30-9-11 NMSA 1978;
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0025| [(i) robbery, as provided in Section
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30-16-2 NMSA 1978;
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(j)] (f) aggravated burglary, as
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0003| provided in Section 30-16-4 NMSA 1978;
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0004| [(k)] (g) aggravated arson, as
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0005| provided in Section 30-17-6 NMSA 1978; or
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0006| [(l)] (h) abuse of a child that
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0007| results in great bodily harm or death to the child, as provided
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0008| in Section 30-6-1 NMSA 1978;
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0009| (2) less than fourteen years of age at the
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0010| time of the offense and who is adjudicated for at least one of
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0011| the following offenses:
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0012| (a) second degree murder, as provided in
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0013| Section 30-2-1 NMSA 1978;
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0014| (b) voluntary manslaughter, as provided
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0015| in Section 30-2-3 NMSA 1978;
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0016| (c) aggravated assault with a deadly
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0017| weapon, as provided in Subsection A of Section 30-3-2 NMSA
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0018| 1978;
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0019| (d) aggravated battery inflicting great
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0020| bodily harm or with a deadly weapon, as provided in Subsection
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0021| C of Section 30-3-5 NMSA 1978;
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0022| (e) kidnapping, as provided in Section
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0023| 30-4-1 NMSA 1978; or
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0024| (f) robbery while armed with a deadly
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0025| weapon, as provided in Section 30-16-2 NMSA 1978;
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0001| [(2) fourteen to] (3) less than eighteen
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0002| years of age at the time of the offense and adjudicated for any
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0003| felony offense and who has had three prior, separate felony
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0004| adjudications within a three-year time period immediately
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0005| preceding the instant offense. The felony adjudications relied
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0006| upon as prior adjudications shall not have arisen out of the
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0007| same transaction or occurrence or series of events related in
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0008| time and location. Successful completion of consent decrees is
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0009| not considered a prior adjudication for the purposes of this
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0010| paragraph; or
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0011| [(3) fourteen] (4) less than thirteen
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0012| years of age and adjudicated for first degree murder, as
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0013| provided in Section 30-2-1 NMSA 1978."
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0014| Section 2. Section 31-18-15.3 NMSA 1978 (being Laws 1993,
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0015| Chapter 77, Section 3) is amended to read:
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0016| "31-18-15.3. SERIOUS YOUTHFUL OFFENDER--DISPOSITION.--
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0017| A. An alleged serious youthful offender may be
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0018| detained in any of the following places, prior to arraignment
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0019| in metropolitan, magistrate or district court:
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0020| (1) a detention facility for delinquent
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0021| children licensed by the children, youth and families
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0022| department;
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0023| (2) any other suitable place, other than a
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0024| facility for the care and rehabilitation of delinquent
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0025| children, that meets standards for detention facilities as set
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0001| forth in the Children's Code and federal law; or
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0002| (3) a county jail, if a facility described in
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0003| Paragraph (1) or (2) of this subsection is not appropriate.
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0004| B. When an alleged serious youthful offender is
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0005| detained in a juvenile detention facility prior to trial, the
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0006| time spent in the juvenile detention facility shall count
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0007| towards completion of any sentence imposed.
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0008| C. At arraignment, when a metropolitan or district
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0009| court judge or a magistrate determines that an alleged serious
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0010| youthful offender should remain in custody, the alleged serious
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0011| youthful offender may be detained in an adult or juvenile
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0012| detention facility, subject to the facility's accreditation and
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0013| the provisions of applicable federal law.
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0014| D. When an alleged serious youthful offender is
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0015| found guilty of [first degree murder] an offense set forth
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0016| in Subsection A of Section 31-18-15.2 NMSA 1978, the court
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0017| shall sentence the offender pursuant to the provisions of the
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0018| Criminal Sentencing Act. The court may sentence the offender
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0019| to less than, but not exceeding, the mandatory term for an
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0020| adult. The determination of guilt becomes a conviction for
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0021| purposes of the Criminal Sentencing Act.
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0022| E. Prior to the sentencing of an alleged serious
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0023| youthful offender who is convicted of [first degree murder]
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0024| an offense set forth in Subsection A of Section 31-18-15.2
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0025| NMSA 1978, adult probation services shall prepare a
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0001| presentence report and submit the report to the court and the
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0002| parties five days prior to the sentencing hearing.
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0003| F. When the alleged serious youthful offender is
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0004| convicted of a lesser offense than [first degree murder] an
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0005| offense set forth in Paragraph (1) of Subsection A of Section
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0006| 31-18-15.2 NMSA 1978 and is not a serious youthful offender as
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0007| provided in Paragraph (2) of Subsection A of Section 31-18-15.2
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0008| NMSA 1978, the court shall provide for disposition of the
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0009| offender pursuant to the provisions of Section [32-2-19 or 32-
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2-20] 32A-2-19 or 32A-2-20 NMSA 1978. When an offender is
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0011| adjudicated as a delinquent child, the conviction shall not be
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0012| used as a conviction for purposes of the Criminal Sentencing
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0013| Act."
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0014| Section 3. Section 32A-1-4 NMSA 1978 (being Laws 1993,
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0015| Chapter 77, Section 13, as amended) is amended to read:
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0016| "32A-1-4. DEFINITIONS.--As used in the Children's Code:
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0017| A. "adult" means an individual who is eighteen
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0018| years of age or older;
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0019| B. "child" means an individual who is less than
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0020| eighteen years old;
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0021| C. "court", when used without further
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0022| qualification, means the children's court division of the
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0023| district court and includes the judge, special master or
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0024| commissioner appointed pursuant to the provisions of the
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0025| Children's Code or supreme court rule;
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0001| D. "court appointed special advocate" or "CASA"
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0002| means a person appointed as a CASA, pursuant to the provisions
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0003| of the Children's Court Rules and Forms, who assists the court
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0004| in determining the best interests of the child by investigating
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0005| the case and submitting a report to the court;
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0006| E. "custodian" means a person, other than a parent
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0007| or guardian, who exercises physical control, care or custody of
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0008| the child, including any employee of a residential facility or
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0009| any persons providing out-of-home care;
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0010| F. "department" means the children, youth and
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0011| families department, unless otherwise specified;
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0012| G. "foster parent" means a person, including a
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0013| relative of the child, licensed or certified by the department
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0014| or a child placement agency to provide care for children in the
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0015| custody of the department or agency;
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0016| H. "guardian" means the person having the duty and
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0017| authority of guardianship;
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0018| I. "guardianship" means the duty and authority to
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0019| make important decisions in matters having a permanent effect
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0020| on the life and development of a child and to be concerned
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0021| about the child's general welfare and includes [but is not
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necessarily limited in either number or kind to]:
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0023| (1) the authority to consent to marriage, to
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0024| enlistment in the armed forces of the United States or to major
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0025| medical, psychiatric and surgical treatment;
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0001| (2) the authority to represent the child in
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0002| legal actions and to make other decisions of substantial legal
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0003| significance concerning the child;
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0004| (3) the authority and duty of reasonable
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0005| visitation of the child;
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0006| (4) the rights and responsibilities of legal
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0007| custody when the physical custody of the child is exercised by
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0008| the child's parents, except when legal custody has been vested
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0009| in another person; and
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0010| (5) when the rights of the child's parents
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0011| have been terminated as provided for in the laws governing
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0012| termination of parental rights or when both of the child's
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0013| parents are deceased, the authority to consent to the adoption
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0014| of the child and to make any other decision concerning the
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0015| child that the child's parents could have made;
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0016| J. "guardian ad litem" means an attorney appointed
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0017| by the children's court to represent and protect the best
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0018| interests of the child in a court proceeding; provided that no
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0019| party or employee or representative of a party to the
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0020| proceeding shall be appointed to serve as a guardian ad litem;
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0021| K. "Indian child" means an unmarried person who is:
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0022| (1) less than eighteen years old;
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0023| (2) a member of an Indian tribe or is eligible
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0024| for membership in an Indian tribe; and
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0025| (3) the biological child of a member of an
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0001| Indian tribe;
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0002| L. "Indian child's tribe" means:
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0003| (1) the Indian tribe in which an Indian child
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0004| is a member or eligible for membership; or
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0005| (2) in the case of an Indian child who is a
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0006| member or eligible for membership in more than one tribe, the
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0007| Indian tribe with which the Indian child has more significant
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0008| contacts;
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0009| M. "judge", when used without further
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0010| qualification, means the judge of the court;
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0011| N. "legal custody" means a legal status created by
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0012| the order of the court or other court of competent jurisdiction
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0013| that vests in a person, department or agency the right to
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0014| determine where and with whom a child shall live; the right and
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0015| duty to protect, train and discipline the child and to provide
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0016| the child with food, shelter, education and ordinary and
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0017| emergency medical care, provided that the department has no
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0018| financial responsibility for a child not in the actual physical
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0019| custody of the department; the right to consent to major
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0020| medical, psychiatric, psychological and surgical treatment and
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0021| to the administration of legally prescribed psychotropic
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0022| medications pursuant to the Children's Mental Health and
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0023| Developmental Disabilities Act; and the right to consent to the
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0024| child's enlistment in the armed forces of the United States,
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0025| all subject to the powers, rights, duties and responsibilities
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0001| of the guardian of the child and subject to any existing
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0002| parental rights and responsibilities. An individual granted
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0003| legal custody of a child shall exercise the rights and
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0004| responsibilities as custodian personally, unless otherwise
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0005| authorized by the court entering the order;
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0006| O. "parent" or "parents" includes a biological or
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0007| adoptive parent;
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0008| P. "person" means an individual or any other form
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0009| of entity recognized by law;
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0010| Q. "tribal court" means:
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0011| (1) a court established and operated pursuant
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0012| to a code or custom of an Indian tribe; or
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0013| (2) any administrative body of an Indian tribe
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0014| that is vested with judicial authority;
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0015| R. "tribal court order" means a document issued by
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0016| a tribal court that is signed by an appropriate authority,
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0017| including a judge, governor or tribal council member, and that
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0018| orders an action that is within the tribal court's
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0019| jurisdiction; and
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0020| S. "tribunal" means any judicial forum other than
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0021| the court."
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0022| Section 4. Section 32A-2-1 NMSA 1978 (being Laws 1993,
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0023| Chapter 77, Section 30) is amended to read:
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0024| "32A-2-1. SHORT TITLE.--Chapter [32] 32A, Article 2
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0025| NMSA 1978 may be cited as the "Delinquency Act"."
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0001| Section 5. Section 32A-2-3 NMSA 1978 (being Laws 1993,
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0002| Chapter 77, Section 32, as amended) is amended to read:
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0003| "32A-2-3. DEFINITIONS.--As used in the Delinquency Act:
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0004| A. "delinquent act" means an act committed by a
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0005| child that would be designated as a crime under the law if
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0006| committed by an adult, including the following offenses:
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0007| (1) pursuant to municipal traffic codes or the
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0008| Motor Vehicle Code:
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0009| (a) any driving while under the
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0010| influence of intoxicating liquor or drugs;
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0011| (b) any failure to stop in the event of
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0012| an accident causing death, personal injury or damage to
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0013| property;
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0014| (c) any unlawful taking of a vehicle or
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0015| motor vehicle;
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0016| (d) any receiving or transferring of a
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0017| stolen vehicle or motor vehicle;
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0018| (e) any homicide by vehicle;
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0019| (f) any injuring or tampering with a
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0020| vehicle;
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0021| (g) any altering or changing of an
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0022| engine number or other vehicle identification numbers;
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0023| (h) any altering or forging of a
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0024| driver's license or permit or any making of a fictitious
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0025| license or permit; or
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0001| [(i) reckless driving;
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(j) driving with a suspended or revoked
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license; or
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(k)] (i) any offense punishable as a
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0005| felony;
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0006| (2) buying, attempting to buy, receiving,
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0007| possessing or being served any alcoholic liquor or being
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0008| present in a licensed liquor establishment, other than a
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0009| restaurant or a licensed retail liquor establishment, except in
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0010| the presence of the child's parent, guardian, custodian or
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0011| adult spouse. As used in this paragraph, "restaurant" means
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0012| any establishment where meals are prepared and served primarily
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0013| for on-premises consumption and that has a dining room, a
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0014| kitchen and the employees necessary for preparing, cooking and
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0015| serving meals. "Restaurant" does not include establishments,
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0016| as defined in regulations promulgated by the director of the
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0017| special investigations division of the department of public
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0018| safety, that serve only hamburgers, sandwiches, salads and
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0019| other fast foods;
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0020| (3) any felony violation of the provisions of
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0021| Sections 17-1-1 through 17-5-9 NMSA 1978 or any regulations
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0022| adopted by the state game commission that relate to the time,
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0023| extent, means or manner that game animals, birds or fish may be
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0024| hunted, taken, captured, killed, possessed, sold, purchased or
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0025| shipped and for which a fine may be imposed or a civil damage
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0001| awarded;
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0002| (4) any violation of Section 30-29-2 NMSA
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0003| 1978, regarding the illegal use of a glue, aerosol spray
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0004| product or other chemical substance;
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0005| (5) any violation of the Controlled Substances
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0006| Act;
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0007| (6) escape from the custody of a law
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0008| enforcement officer or a juvenile probation or parole officer
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0009| or from any placement made by the department by a child who has
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0010| been adjudicated a delinquent child; or
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0011| (7) any violation of Section 30-15-1.1 NMSA
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0012| 1978 regarding unauthorized graffiti on personal or real
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0013| property;
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0014| B. "delinquent child" means a child who has
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0015| committed a delinquent act;
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0016| C. "delinquent offender" means a delinquent child
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0017| who is subject to juvenile sanctions only and who is not a
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0018| youthful offender or a serious youthful offender;
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0019| D. "detention facility" means a place where a child
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0020| less than eighteen years of age may be detained under the
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0021| Children's Code pending court hearing and does not include a
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0022| facility for the care and rehabilitation of an adjudicated
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0023| delinquent child;
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0024| E. "felony" means an act that would be a felony if
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0025| committed by an adult;
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0001| F. "misdemeanor" means an act that would be a
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0002| misdemeanor or petty misdemeanor if committed by an adult;
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0003| G. "restitution" means financial reimbursement by
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0004| the child to the victim or community service imposed by the
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0005| court and is limited to easily ascertainable damages for injury
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0006| to or loss of property, actual expenses incurred for medical,
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0007| psychiatric and psychological treatment for injury to a person
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0008| and lost wages resulting from physical injury, which are a
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0009| direct and proximate result of a delinquent act. "Restitution"
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0010| does not include reimbursement for damages for mental anguish,
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0011| pain and suffering or other intangible losses. As used in this
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0012| subsection, "victim" means any person who is injured or suffers
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0013| damage of any kind by an act that is the subject of a complaint
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0014| or referral to law enforcement officers or juvenile probation
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0015| authorities. Nothing contained in this definition limits or
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0016| replaces the provisions of Subsections A and B of Section
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0017| 32A-2-27 NMSA 1978;
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0018| H. "serious youthful offender" means an individual:
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0019| (1) [fifteen] fourteen to eighteen years
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0020| of age who is charged with, [and] indicted or bound over for
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0021| trial for [first degree murder.] one of the following
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0022| offenses:
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0023| (a) first degree murder, as provided in
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0024| Section 30-2-1 NMSA 1978;
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0025| (b) second degree murder, as provided in
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0001| Section 30-2-1 NMSA 1978;
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0002| (c) voluntary manslaughter, as provided
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0003| in Section 30-2-3 NMSA 1978;
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0004| (d) aggravated assault with a deadly
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0005| weapon, as provided in Subsection A of Section 30-3-2 NMSA
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0006| 1978;
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0007| (e) aggravated battery inflicting great
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0008| bodily harm or with a deadly weapon, as provided in Subsection
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0009| C of Section 30-3-5 NMSA 1978;
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0010| (f) kidnapping, as provided in Section
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0011| 30-4-1 NMSA 1978; or
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0012| (g) robbery while armed with a deadly
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0013| weapon, as provided in Section 30-16-2 NMSA 1978; or
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0014| (2) fourteen to eighteen years of age who is
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0015| charged with committing at least one of the offenses set forth
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0016| in Subsection A of Section 32A-2-3 NMSA 1978 and who has
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0017| previously been committed to the custody of the corrections
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0018| department as a serious youthful offender or youthful
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0019| offender.
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0020| A "serious youthful offender" is not a delinquent child as
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0021| defined [pursuant to the provisions of] in this section;
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0022| and
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0023| I. "youthful offender" means a delinquent child
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0024| subject to adult or juvenile sanctions who is:
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0025| (1) [fourteen to] less than eighteen years
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0001| of age at the time of the offense and who is adjudicated for at
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0002| least one of the following offenses:
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0003| [(a) second degree murder, as provided
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in Section 30-2-1 NMSA 1978;
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(b)] (a) assault with intent to
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0006| commit a violent felony, as provided in Section 30-3-3 NMSA
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0007| 1978;
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0008| [(c) kidnapping, as provided in Section
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30-4-1 NMSA 1978;
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(d) aggravated battery, as provided in
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Subsection C of Section 30-3-5 NMSA 1978;
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(e)] (b) aggravated battery upon a
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0013| peace officer, as provided in [Subsection C of] Section 30-
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0014| 22-25 NMSA 1978;
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0015| [(f)] (c) shooting at a dwelling or
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0016| occupied building or shooting at or from a motor vehicle, as
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0017| provided in Section 30-3-8 NMSA 1978;
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0018| [(g)] (d) dangerous use of
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0019| explosives, as provided in Section 30-7-5 NMSA 1978;
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0020| [(h)] (e) criminal sexual
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0021| penetration, as provided in Section 30-9-11 NMSA 1978;
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0022| [(i) robbery, as provided in Section
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30-16-2 NMSA 1978;
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(j)] (f) aggravated burglary, as
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0025| provided in Section 30-16-4 NMSA 1978;
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0001| [(k)] (g) aggravated arson, as
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0002| provided in Section 30-17-6 NMSA 1978; or
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0003| [(l)] (h) abuse of a child that
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0004| results in great bodily harm or death to the child, as provided
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0005| in Section 30-6-1 NMSA 1978;
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0006| (2) less than fourteen years of age at the
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0007| time of the offense and who is adjudicated for at least one of
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0008| the following offenses:
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0009| (a) second degree murder, as provided in
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0010| Section 30-2-1 NMSA 1978;
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0011| (b) voluntary manslaughter, as provided
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0012| in Section 30-2-3 NMSA 1978;
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0013| (c) aggravated assault with a deadly
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0014| weapon, as provided in Subsection A of Section 30-3-2 NMSA
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0015| 1978;
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0016| (d) aggravated battery inflicting great
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0017| bodily harm or with a deadly weapon, as provided in Subsection
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0018| C of Section 30-3-5 NMSA 1978;
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0019| (e) kidnapping, as provided in Section
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0020| 30-4-1 NMSA 1978; or
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0021| (f) robbery while armed with a deadly
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0022| weapon, as provided in Section 30-16-2 NMSA 1978;
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0023| [(2) fourteen to] (3) less than eighteen
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0024| years of age at the time of the offense and adjudicated for any
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0025| felony offense and who has had three prior, separate felony
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0001| adjudications within a three-year time period immediately
|
0002| preceding the instant offense. The felony adjudications relied
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0003| upon as prior adjudications shall not have arisen out of the
|
0004| same transaction or occurrence or series of events related in
|
0005| time and location. Successful completion of consent decrees
|
0006| are not considered a prior adjudication for the purposes of
|
0007| this paragraph; or
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0008| [(3) fourteen] (4) less than thirteen
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0009| years of age and adjudicated for first degree murder, as
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0010| provided in Section 30-2-1 NMSA 1978."
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0011| Section 6. Section 32A-2-5 NMSA 1978 (being Laws 1993,
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0012| Chapter 77, Section 34, as amended) is amended to read:
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0013| "32A-2-5. JUVENILE PROBATION AND PAROLE SERVICES--
|
0014| ESTABLISHMENT--JUVENILE PROBATION AND PAROLE OFFICERS--POWERS
|
0015| AND DUTIES.--
|
0016| A. Juvenile probation and parole services shall be
|
0017| provided by the department.
|
0018| B. To carry out the objectives and provisions of
|
0019| the Delinquency Act, but subject to its limitations, the
|
0020| department has the power and duty to:
|
0021| (1) receive and examine complaints and
|
0022| allegations that a child is a delinquent child for the purpose
|
0023| of considering beginning a proceeding pursuant to the
|
0024| provisions of the Delinquency Act;
|
0025| (2) make case referrals for services as appear
|
0001| appropriate or desirable;
|
0002| (3) make predisposition studies and
|
0003| assessments and submit reports and recommendations to the
|
0004| court;
|
0005| (4) supervise and assist a child placed on
|
0006| probation or parole or under supervision by court order or by
|
0007| the juvenile parole board;
|
0008| (5) give notice to any individual who has been
|
0009| the subject of a petition filed pursuant to the provisions of
|
0010| the Delinquency Act of the sealing of that individual's records
|
0011| in accordance with that act;
|
0012| (6) informally dispose of up to three
|
0013| misdemeanor charges brought against a child within two years;
|
0014| (7) give notice to the children's court
|
0015| attorney of the receipt of any felony complaint and of any
|
0016| recommended adjustment of such felony complaint;
|
0017| (8) identify an Indian child for the purpose
|
0018| of contacting the Indian child's tribe in delinquency cases;
|
0019| and
|
0020| (9) contact an Indian child's tribe to consult
|
0021| and exchange information for the purpose of preparing a
|
0022| predisposition report when commitment or placement of an Indian
|
0023| child is contemplated or has been ordered and indicate in the
|
0024| report the name of the person contacted in the Indian child's
|
0025| tribe and the results of the contact.
|
0001| C. A juvenile probation and parole officer does not
|
0002| have the powers of a law enforcement officer. A juvenile
|
0003| probation and parole officer may take into physical custody and
|
0004| place in detention a child who is under supervision as a
|
0005| delinquent child when there is reasonable cause to believe that
|
0006| the child has violated the conditions of his probation, that
|
0007| the child is in the department's custody and is on pre-parole
|
0008| leave or family emergency leave release from an institution and
|
0009| has violated the conditions of his leave, or that the child
|
0010| may leave the jurisdiction of the court. Taking a child into
|
0011| custody under this subsection is subject to and shall proceed
|
0012| in accordance with the provisions of the Delinquency Act
|
0013| relating to custody and detention procedures and criteria."
|
0014| Section 7. Section 32A-2-7 NMSA 1978 (being Laws 1993,
|
0015| Chapter 77, Section 36) is amended to read:
|
0016| "32A-2-7. COMPLAINTS--REFERRAL--PRELIMINARY INQUIRY--TIME
|
0017| WAIVER.--
|
0018| A. Complaints alleging delinquency shall first be
|
0019| referred to probation services, which shall conduct a
|
0020| preliminary inquiry to determine the best interests of the
|
0021| child and of the public with regard to any action to be taken.
|
0022| B. During the preliminary inquiry on a
|
0023| delinquency complaint, the matter may be referred to another
|
0024| appropriate agency and conferences may be conducted for the
|
0025| purpose of effecting adjustments or agreements that will
|
0001| obviate the necessity for filing a petition. At the
|
0002| commencement of the preliminary inquiry, the parties shall be
|
0003| advised of their basic rights pursuant to Section [32-2-14]
|
0004| 32A-2-14 NMSA 1978, and no party may be compelled to appear
|
0005| at any conference, to produce any papers or to visit any place.
|
0006| The preliminary inquiry shall be completed within the time
|
0007| limits set forth in the Children's Court Rules and Forms.
|
0008| C. When a child is in detention or custody and the
|
0009| children's court attorney does not file a petition within the
|
0010| time limits authorized by the Children's Court Rules and Forms,
|
0011| the child shall be released immediately.
|
0012| D. After completion of the preliminary inquiry on a
|
0013| delinquency complaint involving a misdemeanor, probation
|
0014| services may notify the children's court attorney and recommend
|
0015| an appropriate disposition for the case. If the child has been
|
0016| referred for three or more prior misdemeanors within two years
|
0017| of the instant offense, probation services shall notify the
|
0018| children's court attorney and recommend an appropriate
|
0019| disposition for the case.
|
0020| E. Probation services shall notify the children's
|
0021| court attorney of the receipt of any complaint involving an act
|
0022| that constitutes a felony under the applicable criminal law.
|
0023| Probation services shall also recommend a disposition to the
|
0024| children's court attorney.
|
0025| F. The child, through counsel, and the children's
|
0001| court attorney may agree, without judicial approval, to a
|
0002| waiver of time limitations imposed after a petition is filed.
|
0003| A time waiver defers adjudication of the charges. The
|
0004| children's court attorney may place restrictions on a child's
|
0005| behavior as a condition of a time waiver. If the child
|
0006| completes the agreed upon conditions and no new charges are
|
0007| filed against the child, the pending petition shall be
|
0008| dismissed. If the children's court attorney files a new
|
0009| petition against the child, the children's court attorney may
|
0010| proceed on both the original petition and the new charges. The
|
0011| department shall become a party if probation services are
|
0012| requested as a condition of the time waiver."
|
0013| Section 8. Section 32A-2-17 NMSA 1978 (being Laws 1993,
|
0014| Chapter 77, Section 46, as amended) is amended to read:
|
0015| "32A-2-17. PREDISPOSITION STUDIES--REPORTS AND
|
0016| EXAMINATIONS.--
|
0017| A. After a petition has been filed and either a
|
0018| finding with respect to the allegations of the petition has
|
0019| been made or a notice of intent to admit the allegations of the
|
0020| petition has been filed, the court may direct that a
|
0021| predisposition study and report to the court be made in writing
|
0022| by the department or an appropriate agency designated by the
|
0023| court concerning the child, the family of the child, the
|
0024| environment of the child and any other matters relevant to the
|
0025| need for treatment or to appropriate disposition of the case.
|
0001| The following predisposition reports shall be provided to the
|
0002| parties and the court five days before actual disposition or
|
0003| sentencing:
|
0004| (1) the adult probation and parole division of
|
0005| the corrections department shall prepare a predisposition
|
0006| report for serious youthful offenders;
|
0007| (2) the department shall prepare a
|
0008| predisposition report for serious youthful offenders who are
|
0009| convicted of an offense other than first degree murder;
|
0010| (3) the department, using the services of a
|
0011| licensed psychologist, shall prepare a predisposition report
|
0012| for youthful offenders concerning the youthful offender's
|
0013| amenability to treatment and if:
|
0014| (a) the court determines that a juvenile
|
0015| disposition is appropriate, the department shall prepare a
|
0016| subsequent predisposition report; or
|
0017| (b) the court makes the findings
|
0018| necessary to impose an adult sentence pursuant to Section
|
0019| 32A-2-20 NMSA 1978, the adult probation and parole division of
|
0020| the corrections department shall prepare a subsequent
|
0021| predisposition report; and
|
0022| (4) the department shall prepare a
|
0023| predisposition report for delinquent offenders, upon the
|
0024| court's request.
|
0025| B. Where there are indications that the child may
|
0001| be mentally disordered or developmentally disabled, the court,
|
0002| on motion by the children's court attorney or that of counsel
|
0003| for the child, may order the child to be examined at a suitable
|
0004| place by a physician, a licensed psychologist or a licensed,
|
0005| independent social worker prior to a hearing on the merits of
|
0006| the petition. An examination made prior to the hearing or as a
|
0007| part of the predisposition study and report shall be conducted
|
0008| on an outpatient basis, unless the court finds that placement
|
0009| in a hospital or other appropriate facility is necessary.
|
0010| C. The court, after a hearing, may order
|
0011| examination by a physician, a licensed psychologist or a
|
0012| licensed, independent social worker of a parent or custodian
|
0013| whose ability to care for or supervise a child is an issue
|
0014| before the court.
|
0015| D. The court may order that a child adjudicated as
|
0016| a delinquent child be transferred to the facility designated by
|
0017| the secretary of the department for a period of not more than
|
0018| fifteen days within a three hundred sixty-five day time period
|
0019| for purposes of diagnosis, with direction that the court be
|
0020| given a report indicating what disposition appears most
|
0021| suitable when the interests of the child and the public are
|
0022| considered.
|
0023| E. Once the child is committed, the department
|
0024| shall determine when the child is released. The release shall
|
0025| be any time after commitment, but not more than fifteen days
|
0001| after commitment. Upon petition by the department to the
|
0002| court, the judge may extend the commitment for an additional
|
0003| fifteen days upon good cause shown."
|
0004| Section 9. Section 32A-2-19 NMSA 1978 (being Laws 1993,
|
0005| Chapter 77, Section 48, as amended) is amended to read:
|
0006| "32A-2-19. DISPOSITION OF AN ADJUDICATED DELINQUENT
|
0007| OFFENDER.--
|
0008| A. At the conclusion of the dispositional hearing,
|
0009| the court may make and include in the dispositional judgment
|
0010| its findings on the following:
|
0011| (1) the interaction and interrelationship of
|
0012| the child with the child's parents, siblings and any other
|
0013| person who may significantly affect the child's best interests;
|
0014| (2) the child's adjustment to his home, school
|
0015| and community;
|
0016| (3) the mental and physical health of all
|
0017| individuals involved;
|
0018| (4) the wishes of the child as to his
|
0019| custodian;
|
0020| (5) the wishes of the child's parents as to
|
0021| the child's custody;
|
0022| (6) whether there exists a relative of the
|
0023| child or other individual who, after study by the department,
|
0024| is found to be qualified to receive and care for the child;
|
0025| (7) the availability of services recommended
|
0001| in the predisposition report; and
|
0002| (8) the ability of the parents to care for the
|
0003| child in the home.
|
0004| B. If a child is found to be delinquent, the court
|
0005| may impose a fine not to exceed the fine that could be imposed
|
0006| if the child were an adult and, subject to the provisions of
|
0007| the Delinquency Act relating to the disposition of adjudicated
|
0008| serious youthful offenders and youthful offenders, may enter
|
0009| its judgment making any of the following dispositions for the
|
0010| supervision, care and rehabilitation of the child:
|
0011| (1) any disposition that is authorized for the
|
0012| disposition of a neglected or abused child, in accordance with
|
0013| the Abuse and Neglect Act;
|
0014| (2) transfer legal custody to the department,
|
0015| an agency responsible for the care and rehabilitation of
|
0016| delinquent children, which shall receive the child at a
|
0017| facility designated by the secretary of the department as a
|
0018| juvenile reception facility. The department shall thereafter
|
0019| determine the appropriate placement, supervision and
|
0020| rehabilitation program for the child. The judge may include
|
0021| recommendations for placement of the child. Commitments are
|
0022| subject to limitations and modifications set forth in Section
|
0023| 32A-2-23 NMSA 1978. The types of commitments include:
|
0024| (a) a short-term commitment of not more
|
0025| than one year;
|
0001| (b) a long-term commitment for no more
|
0002| than two years in a long-term facility for the care and
|
0003| rehabilitation of adjudicated delinquent children;
|
0004| (c) if the child is a delinquent
|
0005| offender who committed one of the criminal offenses set forth
|
0006| in Subsection I of Section 32A-2-3 NMSA 1978, a commitment to
|
0007| age twenty-one, unless sooner discharged; or
|
0008| (d) if the child is a youthful offender,
|
0009| a commitment to age twenty-one, unless sooner discharged
|
0010| pursuant to the provisions of Section 32A-2-23 NMSA 1978, to
|
0011| be followed by a mandatory parole period of not less than one
|
0012| year following discharge or release regardless of the amount of
|
0013| time served during placement or commitment;
|
0014| (3) place the child on probation under those
|
0015| conditions and limitations as the court may prescribe;
|
0016| (4) place the child in a local detention
|
0017| facility that has been certified in accordance with the
|
0018| provisions of Section 32A-2-4 NMSA 1978 for a period not to
|
0019| exceed fifteen days within a three hundred sixty-five day time
|
0020| period;
|
0021| (5) if a child is found to be delinquent
|
0022| solely on the basis of Paragraph (3) of Subsection A of Section
|
0023| 32A-2-3 NMSA 1978, the court shall only enter a judgment
|
0024| placing the child on probation or ordering restitution or
|
0025| imposing a fine not to exceed the fine that could be imposed if
|
0001| the child were an adult or any combination of these
|
0002| dispositions; or
|
0003| (6) if a child is found to be delinquent
|
0004| solely on the basis of Paragraph (2), (4) or (5) of Subsection
|
0005| A of Section 32A-2-3 NMSA 1978, the court may make any
|
0006| disposition provided by this section and may enter its judgment
|
0007| placing the child on probation and, as a condition of
|
0008| probation, transfer custody of the child to the department for
|
0009| a period not to exceed six months without further order of the
|
0010| court; provided that this transfer shall not be made unless the
|
0011| court first determines that the department is able to provide
|
0012| or contract for adequate and appropriate treatment for the
|
0013| child and that the treatment is likely to be beneficial.
|
0014| C. When the child is an Indian child, the Indian
|
0015| child's cultural needs shall be considered in the dispositional
|
0016| judgment and reasonable access to cultural practices and
|
0017| traditional treatment shall be provided.
|
0018| D. No child found to be delinquent shall be
|
0019| committed or transferred to a penal institution or other
|
0020| facility used for the execution of sentences of persons
|
0021| convicted of crimes.
|
0022| E. Whenever the court vests legal custody in an
|
0023| agency, institution or department, it shall transmit with the
|
0024| dispositional judgment copies of the clinical reports,
|
0025| predisposition study and report and other information it has
|
0001| pertinent to the care and treatment of the child.
|
0002| F. Prior to any child being placed in the custody
|
0003| of the department, the department shall be provided with
|
0004| reasonable oral or written notification and an opportunity to
|
0005| be heard.
|
0006| G. In addition to any other disposition pursuant to
|
0007| this section or any other penalty provided by law, if a child
|
0008| fifteen years of age or older is adjudicated delinquent on the
|
0009| basis of Paragraph (2), (4) or (5) of Subsection A of Section
|
0010| 32A-2-3 NMSA 1978, the child's driving privileges may be denied
|
0011| or the child's driver's license may be revoked for a period of
|
0012| ninety days. For a second or a subsequent adjudication, the
|
0013| child's driving privileges may be denied or the child's
|
0014| driver's license revoked for a period of one year. Within
|
0015| twenty-four hours of the dispositional judgment, the court may
|
0016| send to the motor vehicle division of the taxation and revenue
|
0017| department the order adjudicating delinquency. Upon receipt of
|
0018| an order from the court adjudicating delinquency, the director
|
0019| of the motor vehicle division of the taxation and revenue
|
0020| department may revoke or deny the delinquent's driver's license
|
0021| or driving privileges. Nothing in this section may prohibit
|
0022| the delinquent from applying for a limited driving privilege
|
0023| pursuant to Section 66-5-35 NMSA 1978, and nothing in this
|
0024| section precludes the delinquent's participation in an
|
0025| appropriate educational, counseling or rehabilitation program.
|
0001| H. In addition to any other disposition pursuant to
|
0002| this section or any other penalty provided by law, when a child
|
0003| is adjudicated delinquent on the basis of Paragraph (7) of
|
0004| Subsection A of Section 32A-2-3 NMSA 1978, the child shall
|
0005| perform the mandatory community service set forth in Section
|
0006| 30-15-1.1 NMSA 1978. When a child fails to completely perform
|
0007| the mandatory community service, the name and address of the
|
0008| child's parent or legal guardian shall be published in a
|
0009| newspaper of general circulation, accompanied by a notice that
|
0010| he is the parent or legal guardian of a child adjudicated
|
0011| delinquent for committing graffiti."
|
0012| Section 10. Section 32A-2-20 NMSA 1978 (being Laws 1993,
|
0013| Chapter 77, Section 49, as amended) is amended to read:
|
0014| "32A-2-20. DISPOSITION OF A YOUTHFUL OFFENDER.--
|
0015| A. The court has the discretion to invoke either an
|
0016| adult sentence or juvenile sanctions on a youthful offender.
|
0017| The children's court attorney shall file a notice of intent to
|
0018| invoke an adult sentence within ten working days of the filing
|
0019| of the petition, provided that the court may extend the time
|
0020| for filing of the notice of intent to invoke an adult sentence,
|
0021| for good cause shown, prior to the adjudicatory hearing. A
|
0022| preliminary hearing by the court or a hearing before a grand
|
0023| jury shall be held, within ten days after the filing of the
|
0024| intent to invoke an adult sentence, to determine whether
|
0025| probable cause exists to support the allegations contained in
|
0001| the petition.
|
0002| B. If the children's court attorney has filed a
|
0003| notice of intent to invoke an adult sentence and the child is
|
0004| adjudicated as a youthful offender, the court shall make the
|
0005| following findings in order to invoke an adult sentence:
|
0006| (1) the child is not amenable to treatment or
|
0007| rehabilitation as a child in available facilities; and
|
0008| (2) the child is not eligible for commitment
|
0009| to an institution for the developmentally disabled or mentally
|
0010| disordered.
|
0011| C. In making the findings set forth in Subsection B
|
0012| of this section, the judge shall consider the following
|
0013| factors:
|
0014| (1) the seriousness of the alleged offense;
|
0015| (2) whether the alleged offense was committed
|
0016| in an aggressive, violent, premeditated or willful manner;
|
0017| (3) whether a firearm was used to commit the
|
0018| alleged offense;
|
0019| (4) whether the alleged offense was against
|
0020| persons or against property, greater weight being given to
|
0021| offenses against persons, especially if personal injury
|
0022| resulted;
|
0023| (5) the sophistication and maturity of the
|
0024| child as determined by consideration of the child's home,
|
0025| environmental situation, emotional attitude and pattern of
|
0001| living;
|
0002| (6) the record and previous history of the
|
0003| child;
|
0004| (7) the prospects for adequate protection of
|
0005| the public and the likelihood of reasonable rehabilitation of
|
0006| the child by the use of procedures, services and facilities
|
0007| currently available; and
|
0008| (8) any other relevant factor, provided that
|
0009| factor is stated on the record.
|
0010| D. If the court invokes an adult sentence, the
|
0011| court may sentence the child to less than, but shall not
|
0012| exceed, the mandatory adult sentence. A youthful offender
|
0013| given an adult sentence shall be treated as an adult offender
|
0014| and shall be transferred to the legal custody of an agency
|
0015| responsible for incarceration of persons sentenced to adult
|
0016| sentences. This transfer terminates the jurisdiction of the
|
0017| court over the child with respect to the delinquent acts
|
0018| alleged in the petition.
|
0019| E. If a juvenile disposition is appropriate, the
|
0020| court shall follow the provisions set forth in Section 32A-2-19
|
0021| NMSA 1978. A youthful offender may be subject to extended
|
0022| commitment in the care of the department until the age of
|
0023| twenty-one, pursuant to the provisions of Section 32A-2-23 NMSA
|
0024| 1978.
|
0025| F. A fourteen to eighteen year old child who is
|
0001| charged with [first degree murder] an offense set forth in
|
0002| Paragraph (1) of Subsection H of Section 32A-2-3 NMSA 1978,
|
0003| but convicted of [an offense less than first degree murder]
|
0004| a lesser offense and who is not a serious youthful offender as
|
0005| set forth in Paragraph (2) of Subsection H of Section 32A-2-3
|
0006| NMSA 1978, is subject to the dispositions set forth in this
|
0007| section."
|
0008| Section 11. Section 32A-2-23 NMSA 1978 (being Laws 1993,
|
0009| Chapter 77, Section 52, as amended) is amended to read:
|
0010| "32A-2-23. LIMITATIONS ON DISPOSITIONAL JUDGMENTS--
|
0011| MODIFICATION--TERMINATION OR EXTENSION OF COURT ORDERS.--
|
0012| A. A judgment transferring legal custody of an
|
0013| adjudicated delinquent child to an agency responsible for the
|
0014| care and rehabilitation of delinquent children divests the
|
0015| court of jurisdiction at the time of transfer of custody,
|
0016| unless the transfer of legal custody is for a commitment not
|
0017| exceeding fifteen days pursuant to the provisions of Section
|
0018| 32A-2-19 NMSA 1978, in which case the court retains
|
0019| jurisdiction, and:
|
0020| (1) the juvenile parole board pursuant to the
|
0021| Juvenile Parole Board Act has the exclusive power to parole or
|
0022| release the child;
|
0023| (2) the supervision of a child after release
|
0024| under Paragraph (1) of this subsection may be conducted by the
|
0025| juvenile parole board in conjunction with the department or any
|
0001| other suitable state agency or under any contractual
|
0002| arrangements the juvenile parole board deems appropriate; and
|
0003| (3) the period of time a child absconds from
|
0004| parole or probation supervision shall toll all time limits for
|
0005| the requirement of filing a petition to revoke probation or
|
0006| parole and shall toll the computation of the period of
|
0007| probation or parole supervision pursuant to the provisions of
|
0008| the Delinquency Act.
|
0009| B. A judgment of probation or protective
|
0010| supervision shall remain in force for an indeterminate period
|
0011| not to exceed the term of commitment from the date entered.
|
0012| C. A child shall be released by an agency and
|
0013| probation or supervision shall be terminated by juvenile
|
0014| probation and parole services or the agency providing
|
0015| supervision when it appears that the purpose of the order has
|
0016| been achieved before the expiration of the period of the
|
0017| judgment. A release or termination and the reasons therefor
|
0018| shall be reported promptly to the court in writing by the
|
0019| releasing authority.
|
0020| D. Prior to the expiration of a long-term
|
0021| commitment, as provided for in Section 32A-2-19 NMSA 1978, the
|
0022| court may extend the judgment for additional periods of one
|
0023| year until the child reaches the age of twenty-one if the court
|
0024| finds that the extension is necessary to safeguard the welfare
|
0025| of the child or the public interest.
|
0001| E. Prior to the expiration of a judgment of
|
0002| probation, the court may extend the judgment for an additional
|
0003| period of one year until the child reaches the age of twenty-
|
0004| one if the court finds that the extension is necessary to
|
0005| protect the community or to safeguard the welfare of the child.
|
0006|
|
0007| F. The court may dismiss a motion if it finds after
|
0008| preliminary investigation that the motion is without substance.
|
0009| If the court is of the opinion that the matter should be
|
0010| reviewed, it may, upon notice to all necessary parties, proceed
|
0011| to a hearing in the manner provided for hearings on petitions
|
0012| alleging delinquency. The court may terminate a judgment if it
|
0013| finds that the child is no longer in need of care, supervision
|
0014| or rehabilitation or it may enter a judgment extending or
|
0015| modifying the original judgment if it finds that action
|
0016| necessary to safeguard the child or the public interest.
|
0017| G. A child may make a motion to modify a children's
|
0018| court or adult disposition within thirty days of the judge's
|
0019| decision. If the court is of the opinion that the matter
|
0020| should be reviewed, it may, upon notice to all necessary
|
0021| parties, including the victims of the offense for which the
|
0022| child was adjudicated a delinquent offender or a youthful
|
0023| offender, proceed to a hearing in the manner provided for
|
0024| hearings on petitions alleging delinquency."
|
0025| Section 12. Section 32A-2-26 NMSA 1978 (being Laws 1993,
|
0001| Chapter 77, Section 55) is amended to read:
|
0002| "32A-2-26. SEALING OF RECORDS.--
|
0003| A. On motion by or on behalf of an individual who
|
0004| has been the subject of a delinquency petition or on the
|
0005| court's own motion, the court shall vacate its findings, orders
|
0006| and judgments on the petition and order the legal and social
|
0007| files and records of the court, probation services and any
|
0008| other agency in the case sealed [and]. If requested in the
|
0009| motion, the court shall also order law enforcement files and
|
0010| records sealed. An individual adjudicated as a youthful
|
0011| offender or serious youthful offender may not file a motion to
|
0012| seal his records pursuant to the provisions of this section.
|
0013| An order sealing records and files shall be entered if the
|
0014| court finds that:
|
0015| (1) two years have elapsed since the final
|
0016| release of the individual from legal custody and supervision or
|
0017| two years have elapsed since the entry of any other judgment
|
0018| not involving legal custody or supervision; and
|
0019| (2) the individual has not, within the two
|
0020| years immediately prior to filing the motion, been convicted of
|
0021| a felony or of a misdemeanor involving moral turpitude or been
|
0022| found delinquent by a court and no proceeding is pending
|
0023| seeking such a conviction or finding.
|
0024| B. Reasonable notice of the motion shall be given
|
0025| to:
|
0001| (1) the children's court attorney;
|
0002| (2) the authority granting the release;
|
0003| (3) the law enforcement officer, department
|
0004| and central depository having custody of the law enforcement
|
0005| files and records if those records are included in the motion;
|
0006| and
|
0007| (4) any other agency having custody of records
|
0008| or files subject to the sealing order.
|
0009| C. Upon the entry of the sealing order, the
|
0010| proceedings in the case shall be treated as if they never
|
0011| occurred and all index references shall be deleted [and].
|
0012| The court, law enforcement officers and departments and
|
0013| agencies shall reply, and the individual may reply, to an
|
0014| inquiry that no record exists with respect to such person.
|
0015| Copies of the sealing order shall be sent to each agency or
|
0016| official named in the order.
|
0017| D. Inspection of the files and records or the
|
0018| release of information in the records included in the sealing
|
0019| order may thereafter be permitted by the court only:
|
0020| (1) upon motion by the individual who is the
|
0021| subject of the records and only to those persons named in the
|
0022| motion; and
|
0023| (2) in its discretion, in an individual case,
|
0024| to any clinic, hospital or agency that has the individual under
|
0025| care or treatment or to persons engaged in fact finding or
|
0001| research.
|
0002| E. Any finding of delinquency or need of services
|
0003| or conviction of a crime subsequent to the sealing order may at
|
0004| the court's discretion be used by the court as a basis to set
|
0005| aside the sealing order.
|
0006| F. A person who has been the subject of a petition
|
0007| filed pursuant to the provisions of the Delinquency Act shall
|
0008| be notified in writing by the juvenile probation and parole
|
0009| officer of the right to have records sealed at the expiration
|
0010| of the disposition."
|
0011| Section 13. Section 32A-2-27 NMSA 1978 (being Laws 1993,
|
0012| Chapter 77, Section 56) is amended to read:
|
0013| "32A-2-27. INJURY TO PERSON OR DESTRUCTION OF PROPERTY--
|
0014| LIABILITY--COSTS AND ATTORNEYS' FEES--RESTITUTION.--
|
0015| A. Any person may recover actual damages not to
|
0016| exceed four thousand dollars ($4,000) [in a civil action] in
|
0017| a court, including children's court, or tribunal of competent
|
0018| jurisdiction from the parent, guardian or custodian having
|
0019| custody and control of a child when the child has maliciously
|
0020| or willfully injured a person or damaged, destroyed or deprived
|
0021| use of property, real or personal, belonging to the person
|
0022| bringing the action.
|
0023| B. Any person may recover actual damages in a
|
0024| civil action in a court of competent jurisdiction from a
|
0025| parent, guardian or custodian who has custody or control of a
|
0001| child, when the child maliciously or willfully injures another
|
0002| person or maliciously or willfully damages or destroys real or
|
0003| personal property belonging to another person, when the court
|
0004| determines that the child's parent, guardian or custodian
|
0005| failed to exercise appropriate supervision and control of the
|
0006| child.
|
0007| [B.] C. Recovery of damages under this section
|
0008| is limited to the actual damages proved in the action [not to
|
exceed four thousand dollars ($4,000) taxable court costs]
|
0010| and, in the discretion of the court, reasonable attorneys' fees
|
0011| to be fixed by the court or tribunal.
|
0012| [C.] D. Nothing contained in this section
|
0013| limits the discretion of the court to issue an order requiring
|
0014| damages or restitution to be paid by the child when the child
|
0015| has been found to be within the provisions of the Delinquency
|
0016| Act.
|
0017| [D.] E. Nothing contained in this section shall
|
0018| be construed so as to impute liability to any foster parent."
|
0019| Section 14. Section 32A-2-28 NMSA 1978 (being Laws 1993,
|
0020| Chapter 77, Section 57) is amended to read:
|
0021| "32A-2-28. PARENTAL RESPONSIBILITY.--
|
0022| A. In any complaint alleging delinquency, a parent
|
0023| of the child alleged to be delinquent [may] shall be made a
|
0024| party in the petition, unless the court finds that making the
|
0025| parent a party will be detrimental to the child's
|
0001| rehabilitation. If a parent is made a party and if a child is
|
0002| adjudicated a delinquent, the court may order the parent or
|
0003| parents to submit to counseling, participate in any probation
|
0004| or other treatment program ordered by the court and, if the
|
0005| child is committed for institutionalization, participate in any
|
0006| institutional treatment or counseling program, including
|
0007| attendance at the site of the institution. The court shall
|
0008| order the [parent] parents to support the child committed
|
0009| for institutionalization by paying the reasonable costs of
|
0010| support, maintenance and treatment of the child that the parent
|
0011| is financially able to pay. The court may use the child
|
0012| support guidelines set forth in Section 40-4-11.1 NMSA 1978 to
|
0013| calculate a reasonable payment.
|
0014| B. The court may order a child placed on probation
|
0015| or parole, or the child's parents, to pay the reasonable costs
|
0016| of that probation or parole.
|
0017| [B.] C. If a fine is imposed against a child by
|
0018| a court of this state, the [parent] parents of the child
|
0019| [is] are not liable to pay the fine.
|
0020| [C.] D. The court may enforce any of its orders
|
0021| issued pursuant to this section by use of its contempt power."
|
0022| Section 15. Section 32A-2-31 NMSA 1978 (being Laws 1993,
|
0023| Chapter 77, Section 60) is amended to read:
|
0024| "32A-2-31. CHILD ADJUDICATED DELINQUENT--VICTIM
|
0025| RESTITUTION--COMPENSATION--DEDUCTIONS.--
|
0001| A. A delinquent child may be ordered by the court
|
0002| to pay restitution [to the victim of the child's delinquent
|
act]. If the court orders payment of restitution, it shall be
|
0004| paid to the court clerk and the clerk shall transmit the
|
0005| restitution payment to the victim of the child's delinquent
|
0006| act.
|
0007| B. The department may provide compensation to a
|
0008| delinquent child engaged in a rehabilitative work program and
|
0009| shall promulgate necessary rules and regulations to provide
|
0010| deductions from that compensation for:
|
0011| (1) victim restitution ordered by the court
|
0012| and for transmitting those deductions to the clerk of that
|
0013| court;
|
0014| (2) the crime victims reparation fund and for
|
0015| transmitting those deductions to the state treasurer for credit
|
0016| to that fund; and
|
0017| (3) the reasonable costs incident to the
|
0018| confinement of the delinquent child.
|
0019| C. The deductions provided by Subsection B of this
|
0020| section shall not exceed fifty percent of the compensation
|
0021| earned by the child and shall not be less than five percent of
|
0022| that compensation."
|
0023| Section 16. Section 32A-2-32 NMSA 1978 (being Laws 1993,
|
0024| Chapter 77, Section 61) is amended to read:
|
0025| "32A-2-32. CONFIDENTIALITY--RECORDS.--
|
0001| A. All social records, including diagnostic
|
0002| evaluation, psychiatric reports, medical reports, social
|
0003| studies reports, pre-parole reports and supervision histories
|
0004| obtained by the juvenile probation office, parole officers and
|
0005| parole board or in possession of the department, are privileged
|
0006| and shall not be disclosed directly or indirectly to the
|
0007| public. For the purposes of this section, names and referral
|
0008| histories are not social records.
|
0009| B. The records described in Subsection A of this
|
0010| section shall be open to inspection only by:
|
0011| (1) court personnel;
|
0012| (2) court appointed special advocates;
|
0013| (3) the child's guardian ad litem;
|
0014| (4) department personnel;
|
0015| (5) any local substitute care review board or
|
0016| any agency contracted to implement local substitute care review
|
0017| boards;
|
0018| (6) corrections department personnel;
|
0019| (7) law enforcement officials;
|
0020| (8) district attorneys;
|
0021| (9) any state government social services
|
0022| agency in any state;
|
0023| (10) those persons or entities of a child's
|
0024| Indian tribe specifically authorized to inspect such records
|
0025| pursuant to the federal Indian Child Welfare Act of 1978 or any
|
0001| regulations promulgated thereunder;
|
0002| (11) tribal juvenile justice system and social
|
0003| service representatives;
|
0004| (12) a foster parent, if the records are those
|
0005| of a child currently placed with that foster parent or of a
|
0006| child being considered for placement with that foster parent
|
0007| when the records concern the social, medical, psychological or
|
0008| educational needs of the child;
|
0009| (13) school personnel involved with the child
|
0010| if the records concern the child's social or educational needs;
|
0011| (14) health care or mental health
|
0012| professionals involved in the evaluation or treatment of the
|
0013| child, the child's parents, guardians or custodian or other
|
0014| family members; (15) representatives of the
|
0015| protection and advocacy system, pursuant to the provisions of
|
0016| the federal Developmental Disabilities Assistance and Bill of
|
0017| Rights Act and the federal Protection and Advocacy for Mentally
|
0018| Ill Individuals Act of 1991; and
|
0019| (16) any other person or entity, by order of
|
0020| the court, having a legitimate interest in the case or the work
|
0021| of the court.
|
0022| C. Whoever intentionally and unlawfully releases
|
0023| any information or records closed to the public pursuant to
|
0024| this section or releases or makes other unlawful use of records
|
0025| in violation of this section is guilty of a petty misdemeanor."
|
0001| Section 17. EFFECTIVE DATE.--The effective date of the
|
0002| provisions of this act is July 1, 1997.
|
0003|
|
0004| State of New Mexico
|
0005| House of Representatives
|
0006|
|
0007| FORTY-THIRD LEGISLATURE
|
0008| FIRST SESSION, 1997
|
0009|
|
0010|
|
0011| March 19, 1997
|
0012|
|
0013|
|
0014| Mr. Speaker:
|
0015|
|
0016| Your JUDICIARY COMMITTEE, to whom has been referred
|
0017|
|
0018| HOUSE BILL 767
|
0019|
|
0020| has had it under consideration and reports same with
|
0021| recommendation that it DO NOT PASS, but that
|
0022|
|
0023| HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR HOUSE
|
0024| BILL 767
|
0025|
|
0001| DO PASS, and thence referred to the APPROPRIATIONS
|
0002| AND FINANCE COMMITTEE.
|
0003|
|
0004| Respectfully submitted,
|
0005|
|
0006|
|
0007|
|
0008|
|
0009|
|
0010| Thomas P. Foy, Chairman
|
0011|
|
0012|
|
0013| Adopted Not Adopted
|
0014|
|
0015| (Chief Clerk) (Chief Clerk)
|
0016|
|
0017| Date
|
0018|
|
0019| The roll call vote was 11 For 0 Against
|
0020| Yes: 11
|
0021| Excused: Rios, Sanchez
|
0022| Absent: None
|
0023|
|
0024| G:\BILLTEXT\BILLW_97\H0767
|
0025|
|
0001| FORTY-THIRD LEGISLATURE
|
0002| FIRST SESSION, 1997
|
0003|
|
0004|
|
0005| March 21, 1997
|
0006|
|
0007| Mr. President:
|
0008|
|
0009| Your JUDICIARY COMMITTEE, to whom has been referred
|
0010|
|
0011| HOUSE BILL 767
|
0012|
|
0013| has had it under consideration and reports same with
|
0014| recommendation that it DO PASS.
|
0015|
|
0016| Respectfully submitted,
|
0017|
|
0018|
|
0019|
|
0020|
|
0021| __________________________________
|
0022| Fernando R. Macias, Chairman
|
0023|
|
0024|
|
0025|
|
0001| Adopted_______________________ Not
|
0002| Adopted_______________________
|
0003| (Chief Clerk) (Chief Clerk)
|
0004|
|
0005|
|
0006|
|
0007| Date ________________________
|
0008|
|
0009|
|
0010| The roll call vote was 6 For 2 Against
|
0011| Yes: 6
|
0012| No: McSorley, Macias
|
0013| Excused: None
|
0014| Absent: None
|
0015|
|
0016|
|
0017| H0767JU1
|