HB 334

                                1  HOUSE BILL 334
                                2     57TH LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 2026
                                3  INTRODUCED BY
                                4  Andrea Reeb and Nicole Chavez and Alan T. Martinez
                                5
                                6
                                7
                                8
                                9
                                10  AN ACT
                                11   RELATING TO CHILDREN; PROVIDING THAT A REPORT OF COMPETENCY
                                12   EVALUATION SHALL INCLUDE A QUALIFIED PROFESSIONAL'S OPINION AS
                                13   TO WHETHER A CHILD IS COMPETENT FOR ADJUDICATION AND IF, IN THE
                                14   OPINION OF THE PROFESSIONAL, THE CHILD IS NOT COMPETENT, TO
                                15   INCLUDE AN OPINION AS TO WHETHER THE CHILD SATISFIES THE
                                16   CRITERIA FOR INVOLUNTARY PLACEMENT; PROVIDING FOR COMMUNITY-
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                                17   BASED COMPETENCY RESTORATION FOR NONDANGEROUS CHILDREN;
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                                18   PROVIDING A LIST OF CRIMES FOR WHICH A CHILD MAY BE CRIMINALLY
                                19   COMMITTED; PROVIDING THAT WITHIN NINETY DAYS AFTER THE COURT
                                20   ISSUES AN ORDER FOR INVOLUNTARY PLACEMENT OR COMMITMENT, THE
                                21   COURT SHALL CONDUCT A REVIEW HEARING TO DETERMINE COMPETENCY;
                                22   PROVIDING THAT A COURT MAY HOLD A CRIMINAL COMMITMENT HEARING
                                23   IF THE CHILDREN'S COURT DETERMINES THAT THERE IS NOT A
                                24   SUBSTANTIAL PROBABILITY THAT THE CHILD WILL BE RESTORED TO
                                25   COMPETENCY; ALLOWING A COURT TO AUTHORIZE A CHILDREN'S COURT
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                                1    ATTORNEY OF THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT TO USE
                                2    THE REPORT; PROVIDING THAT THE CHILDREN'S COURT SHALL HOLD A
                                3    HEARING TO DETERMINE WHETHER THE CHILD IS NOT COMPETENT DUE TO
                                4    A DEVELOPMENTAL OR INTELLECTUAL DISABILITY.
                                5
                                6    BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
                                7  SECTION 1.    Section 32A-2-21 NMSA 1978 (being Laws 1993,
                                8    Chapter 77, Section 50, as amended) is amended to read:
                                9  "32A-2-21.    DISPOSITION OF A CHILD WITH A MENTAL DISORDER
                                10   OR DEVELOPMENTAL DISABILITY IN A DELINQUENCY PROCEEDING.--
                                11  A.   If in a hearing at any stage of a proceeding on
                                12   a delinquency petition the evidence indicates that the child
                                13   has or may have a mental disorder or developmental disability,
                                14   the court may:
                                15  (1)   order the child detained if appropriate
                                16   under the criteria established pursuant to the provisions of
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                                17   the Delinquency Act; and
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                                18  (2)   initiate proceedings for the involuntary
                                19   placement or commitment of the child as a minor with a mental
                                20   disorder or developmental disability pursuant to the provisions
                                21   of the Children's Mental Health and Developmental Disabilities
                                22   Act.
                                23  B.   If the child is placed for residential treatment
                                24   or habilitation pursuant to the Children's Mental Health and
                                25   Developmental Disabilities Act, the department shall retain
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                                1    legal custody during the period of involuntary placement or
                                2    commitment or until further order of the court.
                                3  C.    If a child is committed to a psychiatric
                                4    hospital for treatment or habilitation and in the event that
                                5    the department should be required to pay more than four hundred
                                6    dollars ($400) per day because of the individualized treatment
                                7    plan, the annual costs over four hundred dollars ($400) per
                                8    child per day will be reported annually by the department to
                                9    the legislative finance committee.
                                10  D.    The child may remain in the residential
                                11   treatment or habilitation facility pending the disposition of
                                12   the delinquency petition.
                                13  E.    When a child in departmental custody needs
                                14   involuntary placement or commitment for residential mental
                                15   health or developmental disability services as a result of a
                                16   mental disorder or developmental disability, the department
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                                17   shall request the children's court attorney to petition for
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                                18   that child's placement pursuant to the provisions of the
                                19   Children's Mental Health and Developmental Disabilities Act.
                                20  F.    A child subject to the provisions of the
                                21   Delinquency Act who receives treatment in a residential
                                22   treatment or habilitation program shall enjoy all the
                                23   substantive and procedural rights set forth in the Children's
                                24   Mental Health and Developmental Disabilities Act.
                                25  [G.    A child's competency to stand trial or
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                                1    participate in his own defense may be raised by a party at any
                                2    time during a proceeding.    If the child has been accused of an
                                3    act that would be considered a misdemeanor if the child were an
                                4    adult and the child is found to be incompetent to stand trial,
                                5    the court shall dismiss the petition with prejudice and may
                                6    recommend that the children's court attorney initiate
                                7    proceedings pursuant to the provisions of the Children's Mental
                                8    Health and Developmental Disabilities Act.    In all other cases,
                                9    the court shall stay the proceedings until the child is
                                10   competent to stand trial; provided that a petition shall not be
                                11   stayed for more than one year.     The court may order treatment
                                12   to enable the child to attain competency to stand trial and may
                                13   amend the conditions of release pursuant to Sections 32A-2-11
                                14   and 32A-2-13 NMSA 1978.     The child's competency to stand trial
                                15   shall be reviewed every ninety days for up to one year.     The
                                16   court shall dismiss the petition without prejudice if, at any
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                                17   time during the year, the court finds that a child cannot be
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                                18   treated to competency or if, after one year, the court
                                19   determines that a child is incompetent to stand trial or
                                20   participate in his own defense.     Upon dismissal, the court may
                                21   recommend that the children's court attorney initiate
                                22   proceedings pursuant to the provisions of the Children's Mental
                                23   Health and Developmental Disabilities Act.
                                24  H.] G.   Involuntary residential treatment shall only
                                25   occur pursuant to the provisions of the Children's Mental
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                                1    Health and Developmental Disabilities Act.
                                2  H.    A question regarding a child's competency for
                                3    adjudication or participation in the child's own defense may be
                                4    raised by any party or the court at any time during a
                                5    proceeding.      If a party or the court raises a question as to a
                                6    child's competency, the delinquency proceeding shall be
                                7    suspended until the question is resolved.
                                8  I.    A child's competency shall be evaluated by a
                                9    psychologist or psychiatrist or other qualified professional
                                10   recognized by the children's court as an expert.        The qualified
                                11   professional who evaluates a child's competency shall prepare
                                12   an evaluation report and submit the report as ordered by the
                                13   court.
                                14  J.    An evaluation report shall include a qualified
                                15   professional's opinion as to whether a child is competent for
                                16   adjudication and has:
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                                17  (1)   a sufficient, present ability to consult
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                                18   with the child's lawyer with a reasonable degree of rational
                                19   understanding;
                                20  (2)   a rational and factual understanding of
                                21   the proceedings against the child; and
                                22  (3)   the capacity to assist in the child's own
                                23   defense and to comprehend the reasons for punishment.
                                24  K.    If, in the opinion of the qualified
                                25   professional, a child is not competent for adjudication, an
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                                1    evaluation report shall include the qualified professional's
                                2    opinion as to whether the child satisfies the criteria for
                                3    involuntary placement or commitment in accordance with the
                                4    Children's Mental Health and Developmental Disabilities Act.
                                5  L.   A competency hearing shall be held:
                                6  (1)    within thirty days from the date an
                                7    evaluation report is submitted to the court for a detained
                                8    child alleged to have committed a felony;
                                9  (2)    within ten days from the date an
                                10   evaluation report is submitted to the court for a detained
                                11   child alleged to have committed a misdemeanor; and
                                12  (3)    within a reasonable time after an
                                13   evaluation report is submitted to the court for a child who is
                                14   not detained."
                                15  SECTION 2.    A new section of the Delinquency Act, Section
                                16   32A-2-21.1 NMSA 1978, is enacted to read:
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                                17  "32A-2-21.1.       [NEW MATERIAL] DETERMINATION OF
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                                18   COMPETENCY--INVOLUNTARY PLACEMENT OR COMMITMENT--REPORT.--
                                19  A.   If, after a competency hearing, a court
                                20   determines that a child is not competent for adjudication, the
                                21   court shall determine if the child is dangerous.       A child who
                                22   is not competent is dangerous if the court finds by clear and
                                23   convincing evidence that the child presents a serious threat
                                24   of:
                                25  (1)    committing murder in the first or second
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                                1    degree, as provided in Section 30-2-1 NMSA 1978;
                                2  (2)   inflicting great bodily harm, as defined
                                3    in Section 30-1-12 NMSA 1978, on another person;
                                4  (3)   committing criminal sexual penetration, as
                                5    provided in Section 30-9-11 NMSA 1978;
                                6  (4)   committing criminal sexual contact of a
                                7    minor, as provided in Section 30-9-13 NMSA 1978;
                                8  (5)   committing abuse of a child, as provided
                                9    in Subsection D of Section 30-6-1 NMSA 1978;
                                10  (6)   violating a provision of the Sexual
                                11   Exploitation of Children Act;
                                12  (7)   committing human trafficking, as provided
                                13   in Section 30-52-1 NMSA 1978;
                                14  (8)   committing aggravated arson, as provided
                                15   in Section 30-17-6 NMSA 1978; or
                                16  (9)   committing any "serious violent offense"
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                                17   enumerated in Subparagraphs (a) through (n) of Paragraph (4) of
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                                18   Subsection N of Section 33-2-34 NMSA 1978 with the use of a
                                19   firearm.
                                20  B.   If the court determines that a child is not
                                21   dangerous, the court may order the child to participate in a
                                22   nonresidential treatment or habilitation program or dismiss the
                                23   delinquency petition without prejudice in the interests of
                                24   justice; provided that if the court dismisses the petition, the
                                25   court may:
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                                1  (1)   advise the children's court attorney to
                                2    consider the initiation of involuntary placement or commitment
                                3    proceedings in accordance with the Children's Mental Health and
                                4    Developmental Disabilities Act and may order the child's
                                5    detention at a detention facility for a maximum of seven days
                                6    to facilitate initiation of those proceedings; or
                                7  (2)   advise the children's court attorney to
                                8    consider initiation of proceedings in accordance with the
                                9    Children's Mental Health and Developmental Disabilities Act but
                                10   may not detain a child for that purpose.
                                11  C.   A treatment plan for a nonresidential treatment
                                12   or habilitation program that is ordered pursuant to this
                                13   section shall be targeted to restore a child to competency.  A
                                14   court may order a child to participate in a nonresidential
                                15   treatment or habilitation program for no longer than ninety
                                16   days, and:
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                                17  (1)   within thirty days of the date that the
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                                18   child was ordered to participate in the program, the person
                                19   supervising the child's treatment or habilitation shall submit
                                20   a progress report to the court and both parties that includes:
                                21  (a)   an initial assessment of the child
                                22   and a description of the programming that will be provided to
                                23   the child;
                                24  (b)   a report on the child's amenability
                                25   to competency restoration;
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                                1  (c)   an assessment of the program's
                                2    capacity to provide appropriate programming for the child; and
                                3  (d)   an opinion as to the probability of
                                4    the child being restored to competency within ninety days from
                                5    the date that the court ordered the child's participation in
                                6    the program;
                                7  (2)   no later than ninety days from the date
                                8    that the court ordered the child to participate in a
                                9    nonresidential treatment or habilitation program, the court
                                10   shall hold a review hearing and determine if the child has been
                                11   restored to competency, and at least seven days prior to the
                                12   review hearing, the person supervising the child's treatment or
                                13   habilitation shall submit a written report that includes:
                                14  (a)   an opinion as to whether the child
                                15   has been restored to competency;
                                16  (b)   if the child is receiving
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                                17   medication, information from the prescribing physician about
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                                18   the type, dosage and effect of the medication on the child's
                                19   appearance, actions and demeanor;
                                20  (c)   if the child remains not competent,
                                21   an opinion as to whether the child satisfies the criteria for
                                22   involuntary commitment in accordance with the Children's Mental
                                23   Health and Developmental Disabilities Act and whether:   1) as a
                                24   result of a mental disorder, the child presents a likelihood of
                                25   serious harm to the child's self or others; 2) the child needs
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                                1    and is likely to benefit from involuntary placement and
                                2    treatment; and 3) the proposed placement is consistent with the
                                3    treatment needs of the child and the least drastic means
                                4    principle; and
                                5  (d)   if the child remains not competent,
                                6    an opinion as to whether the child satisfies the criteria for
                                7    involuntary placement in accordance with the Children's Mental
                                8    Health and Developmental Disabilities Act and whether the
                                9    child:   1) has a primary diagnosis of a mental disorder; 2) has
                                10   demonstrated a history of lack of compliance with treatment for
                                11   a mental disorder; 3) is unwilling or unlikely, as a result of
                                12   a mental disorder, to participate in voluntary treatment that
                                13   would enable the child to live safely in the community with the
                                14   child's natural supports and without court supervision; 4) is
                                15   in need of residential treatment or habilitation as the least
                                16   restrictive appropriate alternative to prevent a relapse or
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                                17   deterioration likely to result in serious harm to the child's
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                                18   self or others; and 5) will likely benefit from residential
                                19   treatment or habilitation and have the child's best interests
                                20   served; and
                                21  (3)   if, after a review hearing, the court
                                22   finds that the child is competent, the petition shall proceed
                                23   to the adjudication hearing, but if the court finds that the
                                24   child remains not competent, the case shall be dismissed
                                25   without prejudice and the court may advise the children's court
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                                1    attorney to consider initiating proceedings in accordance with
                                2    the Children's Mental Health and Developmental Disabilities
                                3    Act.
                                4  D.   If the court determines that a child who is not
                                5    competent is dangerous, the court may order the child's
                                6    placement at a residential treatment or habilitation program
                                7    for competency restoration.    If the court orders such
                                8    placement, the court shall enter a transport order that
                                9    provides for the child's return to the local detention facility
                                10   within seventy-two hours upon the child being restored to
                                11   competency, completion of the competency residential treatment
                                12   or habilitation program or as otherwise required by the court.
                                13   A child placed at a residential treatment or habilitation
                                14   program for competency restoration shall be provided with
                                15   treatment available to children subject to involuntary
                                16   placement and shall:
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                                17  (1)   be detained by the department in a secure,
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                                18   locked facility; and
                                19  (2)   not be released from that facility except
                                20   pursuant to an order of the court that committed the child.
                                21  E.   The department shall admit a child for
                                22   competency restoration within thirty days of receipt of the
                                23   court's order of commitment of an incompetent child and of the
                                24   necessary and available documents reasonably required for
                                25   admission pursuant to written policies adopted by the secretary
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                                1    of children, youth and families or the secretary's designee.
                                2    If the secretary of children, youth and families or the
                                3    secretary's designee determines that the department does not
                                4    have the ability to meet the needs of the child, the secretary
                                5    or the secretary's designee may refuse admission by providing
                                6    written certification to the committing court and the parties
                                7    of the department's inability to meet the needs of the child.
                                8    The certification shall be made within fourteen days of the
                                9    receipt of the court's order of commitment and necessary and
                                10   available documents reasonably required for admission pursuant
                                11   to written policies adopted by the secretary of children, youth
                                12   and families or the secretary's designee.    Within ten days of
                                13   filing of the certification, the court shall conduct a hearing
                                14   for further disposition of the criminal case.
                                15  F.   Within thirty days of a child's admission to a
                                16   facility for competency restoration, the department shall file
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                                17   with the court, the state and the defense:
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                                18  (1)   an initial assessment of the child and
                                19   treatment plan;
                                20  (2)   a report on the child's amenability to
                                21   competency restoration;
                                22  (3)   an assessment of the department's capacity
                                23   to provide appropriate treatment for the child; and
                                24  (4)   an opinion as to the probability of the
                                25   child being restored to competency within nine months from the
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                                1    date the court determined the child is not competent for
                                2    adjudication."
                                3  SECTION 3.     A new section of the Delinquency Act, Section
                                4    32A-2-21.2 NMSA 1978, is enacted to read:
                                5  "32A-2-21.2.       [NEW MATERIAL] DETERMINATION OF
                                6    COMPETENCY--NINETY-DAY REVIEW--REPORTS--CONTINUING TREATMENT.--
                                7  A.   Within ninety days after a court issues an order
                                8    for involuntary placement or commitment of a child for
                                9    competency restoration, the court, sitting without a jury,
                                10   shall conduct a review hearing, unless waived by the defense,
                                11   and shall determine:
                                12  (1)    whether the child has been restored to
                                13   competency or remains not competent for adjudication;
                                14  (2)    if the child remains not competent,
                                15   whether the child is making progress under treatment toward
                                16   being restored to competency within nine months from the date
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                                17   the court determined the defendant is not competent for
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                                18   adjudication; and
                                19  (3)    whether the child remains dangerous as
                                20   determined by the court.
                                21  B.   At least seven days prior to the review hearing,
                                22   the treatment supervisor shall submit a written progress report
                                23   to the court, the state and the defense that includes:
                                24  (1)    the clinical findings regarding the
                                25   child's progress toward competency restoration and the facts
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                                1    upon which the findings are based;
                                2  (2)   an opinion as to whether the child has
                                3    been restored to competency or as to whether the child is
                                4    making progress toward being restored to competency within nine
                                5    months from the date the court determined the child is not
                                6    competent for adjudication and whether there is a substantial
                                7    probability that the child will be restored to competency
                                8    within nine months from the date the court determined the child
                                9    is not competent for adjudication;
                                10  (3)   an opinion as to whether the child remains
                                11   dangerous as determined by the court; and
                                12  (4)   if the child is receiving medication,
                                13   information from the prescribing physician indicating the type,
                                14   dosage and effect of the medication on the child's appearance,
                                15   actions and demeanor.
                                16  C.   If the children's court finds the child is
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                                17   restored to competency, the court shall set the matter for
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                                18   adjudication; provided that if the child is in need of
                                19   continued care or treatment and the department agrees to
                                20   continue to provide it, the court may order continued care or
                                21   treatment of the child until the conclusion of the delinquency
                                22   proceedings.
                                23  D.   If the children's court finds that the child
                                24   remains not competent but is making progress toward being
                                25   restored to competency, the court may continue or modify its
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                                1    original treatment order entered; provided that:
                                2  (1)    the question of the child's competency
                                3    shall be reviewed again not later than nine months from the
                                4    date the court determined the child is not competent for
                                5    adjudication; and
                                6  (2)    the treatment supervisor shall submit a
                                7    written progress report as specified in Subsection B of this
                                8    section at least seven days prior to such hearing.
                                9  E.   If the children's court finds that the child
                                10   remains not competent, that the child is not making progress
                                11   toward being restored to competency and that there is not a
                                12   substantial probability that the child will be restored to
                                13   competency within nine months from the date the court
                                14   determined the child is not competent for adjudication, the
                                15   court shall proceed pursuant to Section 32A-2-21.4 NMSA 1978.
                                16   However, if the child is in need of continued care and
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                                17   treatment and the department agrees to continue to provide
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                                18   continued care and treatment, the children's court may order
                                19   continued care or treatment of the child by the department
                                20   until the conclusion of the delinquency proceedings."
                                21        SECTION 4.     A new section of the Delinquency Act, Section
                                22   32A-2-21.3 NMSA 1978, is enacted to read:
                                23        "32A-2-21.3.       [NEW MATERIAL] DETERMINATION OF
                                24   COMPETENCY--INCOMPETENT CHILDREN.--If at any time the
                                25   children's court determines that there is not a substantial
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                                1    probability that a child will be restored to competency within
                                2    nine months from the date the court determined the child is not
                                3    competent for adjudication, the children's court may:
                                4  A.   hold a child commitment hearing in accordance
                                5    with Section 32A-2-21.4 NMSA 1978 within three months if the
                                6    child is charged with:
                                7  (1)   murder in the first or second degree, as
                                8    provided in Section 30-2-1 NMSA 1978;
                                9  (2)   a felony involving infliction of great
                                10   bodily harm, as defined in Section 30-1-12 NMSA 1978, on
                                11   another person;
                                12  (3)   criminal sexual penetration, as provided
                                13   in Section 30-9-11 NMSA 1978;
                                14  (4)   criminal sexual contact of a minor, as
                                15   provided in Section 30-9-13 NMSA 1978;
                                16  (5)   abuse of a child, as provided in
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                                17   Subsection D of Section 30-6-1 NMSA 1978;
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                                18  (6)   a crime provided for in the Sexual
                                19   Exploitation of Children Act;
                                20  (7)   human trafficking, as provided in Section
                                21   30-52-1 NMSA 1978;
                                22  (8)   aggravated arson, as provided in Section
                                23   30-17-6 NMSA 1978; or
                                24  (9)   any "serious violent offense" enumerated
                                25   in Subparagraphs (a) through (n) of Paragraph (4) of Subsection
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                                1    N of Section 33-2-34 NMSA 1978 with the use of a firearm;
                                2  B.   release the child from custody and dismiss the
                                3    petition with prejudice; or
                                4  C.   dismiss the petition without prejudice in the
                                5    interest of justice; provided that if the treatment supervisor
                                6    reports to the court that the child satisfies the criteria for
                                7    involuntary commitment in accordance with the Children's Mental
                                8    Health and Developmental Disabilities Act, the department shall
                                9    initiate those proceedings, and the court may order the
                                10   detention of the child for a maximum of seven days to
                                11   facilitate the initiation of those proceedings; and provided
                                12   further that the children's court attorney may initiate
                                13   involuntary placement or commitment proceedings in the
                                14   department's stead."
                                15        SECTION 5.    A new section of the Delinquency Act, Section
                                16   32A-2-21.4 NMSA 1978, is enacted to read:
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                                17        "32A-2-21.4.       [NEW MATERIAL] DETERMINATION OF
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                                18   COMPETENCY--CRIMINAL COMMITMENT--EVIDENTIARY HEARING.--
                                19  A.   If the court determines that there is not a
                                20   substantial probability that a child who is not competent for
                                21   adjudication will be restored to competency, a disposition
                                22   hearing to determine the sufficiency of the evidence of the
                                23   child's guilt shall be held if the child is charged with:
                                24  (1)    murder in the first or second degree, as
                                25   provided in Section 30-2-1 NMSA 1978;
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                                1  (2)   a felony involving infliction of great
                                2    bodily harm, as defined in Section 30-1-12 NMSA 1978, on
                                3    another person;
                                4  (3)   criminal sexual penetration, as provided
                                5    in Section 30-9-11 NMSA 1978;
                                6  (4)   criminal sexual contact of a minor, as
                                7    provided in Section 30-9-13 NMSA 1978;
                                8  (5)   abuse of a child, as provided in
                                9    Subsection D of Section 30-6-1 NMSA 1978;
                                10  (6)   a crime provided for in the Sexual
                                11   Exploitation of Children Act;
                                12  (7)   human trafficking, as provided in Section
                                13   30-52-1 NMSA 1978;
                                14  (8)   aggravated arson, as provided in Section
                                15   30-17-6 NMSA 1978; or
                                16  (9)   any "serious violent offense" enumerated
[bracketed material] = delete
                                17   in Subparagraphs (a) through (n) of Paragraph (4) of Subsection
underscored material = new
                                18   N of Section 33-2-34 NMSA 1978 with the use of a firearm.
                                19  B.   A disposition hearing shall be conducted by the
                                20   children's court without a jury.    The children's court attorney
                                21   may introduce evidence relevant to the question of the child's
                                22   guilt of the crime charged.     The children's court may admit
                                23   hearsay or affidavit evidence on secondary matters such as
                                24   testimony to establish the chain of possession of physical
                                25   evidence, laboratory reports, authentication of transcripts
                                     .232985.2
                                                                    - 18 -
                                1    taken by official reporters, children's court and business
                                2    records and public documents.
                                3  C.   If the evidence does not establish by clear and
                                4    convincing evidence that the child committed the crime charged,
                                5    the children's court shall dismiss the criminal case with
                                6    prejudice.
                                7  D.   If the children's court finds by clear and
                                8    convincing evidence that the child committed the crime and has
                                9    not made a finding of dangerousness in accordance with Section
                                10   32A-2-21.1 NMSA 1978, the court shall dismiss the criminal case
                                11   without prejudice.
                                12  E.   If the children's court finds by clear and
                                13   convincing evidence that the child committed the crime charged
                                14   and enters a finding that the child remains not competent for
                                15   adjudication and remains dangerous as determined by the court
                                16   in accordance with Section 32A-2-21.1 NMSA 1978:
[bracketed material] = delete
                                17  (1)   legal custody of the child shall be
underscored material = new
                                18   transferred to the department for commitment to a residential
                                19   treatment or habilitation program;
                                20  (2)   the maximum term of a child's commitment
                                21   shall be until the child reaches the age of twenty-five;
                                22  (3)   significant changes in the child's
                                23   condition, including trial competency and dangerousness, shall
                                24   be reported in writing to the court, state and defense; and
                                25  (4)   at least every year, the children's court
                                     .232985.2
                                                                     - 19 -
                                1    shall conduct a hearing upon notice to the parties and the
                                2    department charged with detaining the child.    At the hearing,
                                3    the court shall enter findings on the issues of trial
                                4    competency and dangerousness:
                                5  (a)   upon a finding that the child is
                                6    competent to proceed in a criminal case, the court shall
                                7    continue with the criminal proceeding;
                                8  (b)   if the child continues to remain not
                                9    competent for adjudication and dangerous, the court shall
                                10   review the child's competency and dangerousness every two years
                                11   until expiration of the period of commitment equal to the
                                12   maximum sentence to which the child would have been subject had
                                13   the child been convicted in a criminal proceeding; and
                                14  (c)   if the court finds upon the court's
                                15   two-year review hearing that the child is no longer dangerous,
                                16   the child shall be released.
[bracketed material] = delete
                                17  F.   At any time, including after a court dismisses a
underscored material = new
                                18   case against a child, the department or the children's court
                                19   attorney may initiate involuntary commitment proceedings in
                                20   accordance with the Children's Mental Health and Developmental
                                21   Disabilities Act.    If the children's court attorney indicates
                                22   an intent to initiate involuntary commitment proceedings in
                                23   accordance with that act, the court may detain the child for a
                                24   maximum of seven days only to facilitate the initiation of
                                25   those proceedings at any licensed psychiatric hospital."
                                     .232985.2
                                                                    - 20 -
                                1  SECTION 6.    A new section of the Delinquency Act, Section
                                2    32A-2-21.5 NMSA 1978, is enacted to read:
                                3  "32A-2-21.5.    [NEW MATERIAL] HEARING TO DETERMINE
                                4    DEVELOPMENTAL OR INTELLECTUAL DISABILITY.--
                                5  A.   Upon motion of the defense, the court shall hold
                                6    a hearing to determine whether a child is not competent due to
                                7    a developmental or intellectual disability, and the evaluator
                                8    shall be provided with the necessary and available documents
                                9    reasonably required for admission pursuant to written policies
                                10   adopted by the secretary of children, youth and families or the
                                11   secretary's designee.
                                12  B.   If the court finds by a preponderance of the
                                13   evidence that the child is not competent for adjudication due
                                14   to a developmental or intellectual disability and that there is
                                15   not a substantial probability that the child will be restored
                                16   to competency within nine months from the date the court
[bracketed material] = delete
                                17   determined the child is not competent for adjudication, the
underscored material = new
                                18   court shall notify the department of the court's finding.
                                19   Within sixty days of receipt of the court's notification, the
                                20   department shall determine whether the child presents a
                                21   likelihood of serious harm to the child's self or others.
                                22  C.   If the department determines that the child
                                23   presents a likelihood of serious harm to self or others, the
                                24   department shall initiate involuntary commitment proceedings in
                                25   accordance with the Children's Mental Health and Developmental
                                     .232985.2
                                                                   - 21 -
                                1    Disabilities Act is charged with:
                                2  (1)   murder in the first or second degree, as
                                3    provided in Section 30-2-1 NMSA 1978;
                                4  (2)   a felony involving infliction of great
                                5    bodily harm, as defined in Section 30-1-12 NMSA 1978, on
                                6    another person;
                                7  (3)   criminal sexual penetration, as provided
                                8    in Section 30-9-11 NMSA 1978;
                                9  (4)   criminal sexual contact of a minor, as
                                10   provided in Section 30-9-13 NMSA 1978;
                                11  (5)   abuse of a child, as provided in
                                12   Subsection D of Section 30-6-1 NMSA 1978;
                                13  (6)   a crime provided for in the Sexual
                                14   Exploitation of Children Act;
                                15  (7)   human trafficking, as provided in Section
                                16   30-52-1 NMSA 1978;
[bracketed material] = delete
                                17  (8)   aggravated arson, as provided in Section
underscored material = new
                                18   30-17-6 NMSA 1978; or
                                19  (9)   any "serious violent offense" enumerated
                                20   in Subparagraphs (a) through (n) of Paragraph (4) of Subsection
                                21   N of Section 33-2-34 NMSA 1978 with the use of a firearm.
                                22  D.   After the involuntary commitment hearing or upon
                                23   expiration of fourteen months from the court's initial
                                24   determination that the child is not competent for adjudication,
                                25   the criminal case shall be dismissed without prejudice."
                                     .232985.2
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