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 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 [32A-6A-1 to 32A-6A-30 NMSA 1978].

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

History: 1978 Comp., § 32A-2-21, enacted by Laws 1993, ch. 77, § 50; 1995, ch. 206, § 15; 2005, ch. 189, § 18.

The 2005 amendment, effective June 17, 2005, in Subsection G, provided that if a child has been accused of an act that is 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 and recommend that the children's court attorney proceed under the Children's Mental Health and Development Disabilities Act; that in all other cases, the court shall stay the proceedings until the child is competent to stand trial, but not longer than one year; that the court may order treatment to enable the child to be competent to stand trail; that the child's competency shall be reviewed every ninety days for up to one year and that the court shall dismiss the petition during the year if the child cannot be treated to competency; and added Subsection H, which provided that involuntary residential treatment shall occur pursuant to the Children's Mental Health and Development Disabilities Act.

The 1995 amendment, effective July 1, 1995, inserted "delinquency" following "child in a" in the section heading; substituted "Children's Mental Health and Developmental Disabilities Act" for "Children's Code" and made minor stylistic changes throughout the section; deleted former Subsections B, C, F, and G, related to involuntary placement and residential treatment facilities, and redesignated the remaining subsections accordingly; in Subsection A, deleted former Paragraph (2) relating to a stay of the petition and redesignated former Paragraph (3) as Paragraph (2); in Subsection B, deleted "or department of health" following "the department"; rewrote Subsection E; and added Subsections F and G.

Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-35 NMSA 1978 have been included in the annotations to this section.

Disposition of petition regarding incompetent child. — Where the evidence persuades the court that a child cannot likely be treated to competency, the court may, in the sound exercise of its discretion, dismiss a delinquency petition without prejudice. In re Daniel H., 2003-NMCA-063, 133 N.M. 630, 68 P.3d 176.

A trial court is not required to dismiss a petition in every case where the child is found incompetent to stand trial and not amenable to treatment; rather, the court has the discretion to proceed consistent with 10-221(D) NMRA (now 10-242(D) NMRA), stay the proceedings on the petition, and order conditions of release or treatment. Dismissal without prejudice is an additional option for the trial court under such circumstances. In re Daniel H., 2003-NMCA-063, 133 N.M. 630, 68 P.3d 176.

Commitment to boys' school of mentally ill and delinquent child. — The children's court did not err in committing mentally ill, delinquent children to state boys' school and in ordering that psychiatric care be provided them at the school. State v. Doe, 1977-NMCA-066, 90 N.M. 572, 566 P.2d 121.

Section confers legislative grant of jurisdiction to the courts. — Children's court had jurisdiction to transfer child to the custody of state health and social services (now human services) department for further study and a report on the child's condition. In re Doe, 1975-NMCA-152, 88 N.M. 632, 545 P.2d 491.

Availability of accommodations controlling factor in determining admission. — Juvenile (now children's) courts do not have the power to commit juveniles to state institutions regardless of available accommodations. Availability of accommodations is made the controlling factor in determining admissions, and this question rests solely with the relators and not with the court. Carter v. Montoya, 1966-NMSC-021, 75 N.M. 730, 410 P.2d 951.

Court did not abuse its discretion in denying child's motion for transfer to more appropriate agency, where there was evidence that the only additional testing needed was an electroencephalogram and a neurological study which could be performed without the requested transfer. State v. Doe, 1978-NMCA-025, 91 N.M. 506, 576 P.2d 1137.

Law reviews. — For article, "Treating Children Under the New Mexico Mental Health and Developmental Disabilities Code," see 10 N.M.L. Rev. 279 (1980).