A. A child shall be represented by an attorney at all commitment or treatment guardianship proceedings under the Children's Mental Health and Developmental Disabilities Act if the child is fourteen years of age or older or by a guardian ad litem if the child is under fourteen years of age.

B. When a child has not retained an attorney or a guardian ad litem in a commitment or treatment guardian proceeding and is unable to do so, the court shall appoint an attorney or a guardian ad litem to represent the child in the proceeding. Only an attorney with appropriate experience shall be appointed as an attorney or a guardian ad litem for the child. Whenever reasonable and appropriate, the court shall appoint a guardian ad litem or attorney who is knowledgeable about the child's cultural background.

C. A child of any age shall have access to the state's designated protection and advocacy system pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Individuals with Mental Illness Act and access to an attorney of the child's choice regarding any matter related to the Children's Mental Health and Developmental Disabilities Act.

D. The child is not entitled to appointment of an attorney at public expense, except as set forth in Subsections A and B of this section.

E. A child shall not be represented or counseled by an attorney or guardian ad litem who has a conflict of interest, including but not limited to any conflict of interest resulting from prior representation of the child's parent, guardian, legal custodian or residential treatment or habilitation program.

History: Laws 2007, ch. 162, § 13; 2008, ch. 75, § 4.

Cross references. — For legal representation of clients applicable to the Mental Health and Developmental Disabilities Code, see 43-1-4 NMSA 1978.

For provisions of the 1995 Children's Mental Health and Developmental Disabilities Act, relating to legal representation of children, see the 2006 NMSA 1978 (32A-6-4) on NMOneSource.com.

The 2008 amendment, effective May 14, 2008, in Subsection C, provided that a child shall have access to the state's protection and advocacy system pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and the federal Protection and Advocacy for Individuals with Mental Illness Act regarding any matter related to the Children's Mental Health and Developmental Disabilities Act.

Pro bono representation. — In entertaining petition for pro bono appointment of attorney to represent a child, the district court was exercising jurisdiction conferred on district courts by the Children's Mental Health and Developmental Disabilities Act. In re Kleinsmith, 2005-NMCA-136, 138 N.M. 681, 124 P.3d 579, cert. denied, 546 U.S. 1034, 126 S. Ct. 758, 163 L. Ed. 2d 574.

Face-to-face representation. — Although a face-to-face meeting is preferred, an appointed attorney could have interviewed the child by telephone to carry out his responsibilities. In re Kleinsmith, 2005-NMCA-136, 138 N.M. 601, 124 P.3d 579, cert. denied, 546 U.S. 1034, 126 S. Ct. 758, 163 L. Ed. 2d 574.