A. If in a hearing, at any stage of a proceeding on a neglect or abuse petition, the evidence indicates that a child has a mental disorder or a developmental disability, the court shall adjudicate the issue of neglect or abuse under the provisions of the Children's Code.

B. When a child in department 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 petition for that child's placement pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act [32A-6A-1 to 32A-6A-30 NMSA 1978].

C. Any child in department custody who is placed for residential treatment or habilitation pursuant to the provisions of the Children's Mental Health and Developmental Disabilities Act shall remain in the legal custody of the department while in residential treatment or habilitation or until further order of the court.

D. A court hearing for consideration of an involuntary placement of a child for residential treatment or habilitation, when the child is subject to the provisions of the Abuse and Neglect Act, may be heard by the court as part of the abuse or neglect proceedings or may be heard in a separate proceeding. All parties to the abuse or neglect proceedings shall be provided with notice of the involuntary placement hearing.

E. A guardian ad litem appointed pursuant to the Abuse and Neglect Act shall serve as a guardian ad litem for a child for the purposes of the Children's Mental Health and Developmental Disabilities Act. When a child is fourteen years of age or older, the child shall be represented by an attorney unless, after consultation between the child and the child's attorney, the child elects to be represented by counsel appointed in the proceedings under the Children's Mental Health and Developmental Disabilities Act.

F. When a child is subject to the provisions of the Abuse and Neglect Act and is receiving residential treatment or habilitation services, any documentation required pursuant to the Children's Mental Health and Developmental Disabilities Act shall be filed with the court as part of the abuse or neglect proceeding. A review of the child's placement in a residential treatment or habilitation program shall occur in the same manner and within the same time requirements as provided in the Children's Mental Health and Developmental Disabilities Act.

G. The clerk of the court shall maintain a separate section within an abuse or neglect file for documents pertaining to actions taken under the Children's Mental Health and Developmental Disabilities Act.

H. A child subject to the provisions of the Abuse and Neglect 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.

History: 1978 Comp., § 32A-4-23, enacted by Laws 1993, ch. 77, § 117; 1995, ch. 206, § 23; 2005, ch. 189, § 48.

The 2005 amendment, effective June 17, 2005, in Subsection D, provided that a hearing for involuntary placement for residential treatment or habilitation may be heard in a proceeding separate from an abuse or neglect proceeding; and in Subsection E, provided that when a child is fourteen years of age or older, the child shall be represented by an attorney, unless the child elects to be represented by counsel appointed in a proceeding under the Children's Mental Health and Developmental Disabilities Act.

The 1995 amendment, effective July 1, 1995, inserted "under the Abuse and Neglect Act" in the section heading, deleted former Subsection B, relating to abuse or neglect petitions, redesignated former Subsections C and D as Subsections B and C, substituted "When a child in department custody needs involuntary placement for residential" for "If the department has reason to believe that a child in department custody needs residential" in Subsection B, deleted Subsections E and F, relating to release from residential treatment or habilitation, and added Subsections D through H.