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:

Have a question?
Click here to chat with a criminal defense lawyer and protect your rights.

(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 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 N.M. Stat. Ann. § 32A-6A-1 to 32A-6A-30.

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 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 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 N.M. Stat. Ann.. 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. Involuntary residential treatment shall only occur pursuant to the provisions of the Children’s Mental Health and Developmental Disabilities Act.