NM Stat § 32A-2-23 (2021)
2021 New Mexico Statutes|Chapter 32A - Children's Code|Article 2 - Delinquency|Section 32A-2-23 - Limitations on dispositional judgments; modification; termination or extension of court orders.

A. A judgment transferring legal custody of an adjudicated delinquent child to an agency responsible for the care and rehabilitation of delinquent children divests the court of jurisdiction at the time of transfer of custody, unless the transfer of legal custody is for a commitment not exceeding fifteen days pursuant to the provisions of Section 32A-2-19 NMSA 1978, in which case the court retains jurisdiction. B. A judgment of probation or protective supervision shall remain in force for an indeterminate period not to exceed the term of commitment from the date entered. C. A child shall be released by an agency and probation or supervision shall be terminated by juvenile probation and parole services or the agency providing supervision when it appears that the purpose of the order has been achieved before the expiration of the period of the judgment. A release or termination and the reasons therefor shall be reported promptly to the court in writing by the releasing authority. D. Prior to the expiration of a short-term commitment of one year, as provided for in Section 32A-2-19 NMSA 1978, the court may extend the judgment for up to one six-month period if the court finds that the extension is necessary to safeguard the welfare of the child or the public safety. If a short-term commitment is extended, the mandatory ninety-day supervised release, as required by Section 32A-2-19 NMSA 1978, shall be included in the extension. Notice and hearing are required for any extension of a juvenile's commitment. E. Prior to the expiration of a long-term commitment, as provided for in Section 32A-2-19 NMSA 1978, the court may extend the judgment for additional periods of one year until the child reaches the age of twenty-one if the court finds that the extension is necessary to safeguard the welfare of the child or the public safety. If a long-term commitment is extended, the mandatory ninety-day supervised release, as required by Section 32A-2-19 NMSA 1978, shall be included in the extension. Notice and hearing are required for any extension of a juvenile's commitment. F. Prior to the expiration of a judgment of probation, the court may extend the judgment for an additional period of one year until the child reaches the age of twenty-one if the court finds that the extension is necessary to protect the community or to safeguard the welfare of the child. G. The court may dismiss a motion if it finds after preliminary investigation that the motion is without substance. If the court is of the opinion that the matter should be reviewed, it may, upon notice to all necessary parties, proceed to a hearing in the manner provided for hearings on petitions alleging delinquency. The court may terminate a judgment if it finds that the child is no longer in need of care, supervision or rehabilitation or it may enter a judgment extending or modifying the original judgment if it finds that action necessary to safeguard the child or the public interest. H. A child may make a motion to modify a children's court or adult disposition within thirty days of the judge's decision. If the court is of the opinion that the matter should be reviewed, it may, upon notice to all necessary parties, proceed to a hearing in the manner provided for hearings on petitions alleging delinquency. I. The department may seek a bench warrant from the court when the child absconds from supervised release. History: 1978 Comp., § 32A-2-23, enacted by Laws 1993, ch. 77, § 52; 1995, ch. 206, § 17; 2003, ch. 225, § 12; 2005, ch. 189, § 20; 2009, ch. 239, § 22. ANNOTATIONSThe 2009 amendment, effective July 1, 2009, deleted Paragraph (1) of Subsection A, which provided that the juvenile parole board had exclusive power to parole or release the child; deleted Paragraph (2) of Subsection A, which provided that the supervision of a child after release shall be conducted by the department; deleted Paragraph (3) of Subsection A, which provided that the time a child absconds from parole or probation tolls all time limits for filing a petition to revoke probation or parole and the computation of the period of probation or parole; in Subsections D and E, changed "parole" to "supervised release"; and added Subsection I. Applicability. — Laws 2009, ch. 239, § 71, provided that the provisions of this act apply to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released. The 2005 amendment, effective June 17, 2005, deleted the former provision in Paragraph A(3), which provided that a child who completes a short term commitment of one year, upon release, shall be placed on parole and supervision for ninety days; added Subsection D, which provided that prior to the expiration of a short-term commitment of one year, the court may extend the judgment for up to one six-month period and if the short-term commitment is extended, the mandatory ninety-day parole shall be included in the extension; and added the provision in Subsection E that if a long-term commitment is extended, the mandatory ninety-day parole shall be included in the extension. The 2003 amendment, effective July 1, 2003, added "subject to the provisions of Section 32A-7-8 NMSA 1978" at the end of Paragraph A(1); rewrote Paragraph A(2); added present Paragraph A(3); redesignated former Paragraph A(3) as Paragraph A(4). The 1995 amendment, effective July 1, 1995, substituted "32A-2-19" for "32-2-19" in Subsections A and D, deleted former Subsection E, relating to extension of six-month commitments for juveniles, redesignated the remaining subsections accordingly, and made a minor stylistic change in Subsection E. Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-38 NMSA 1978 have been included in the annotations to this section. Court's jurisdiction to modify disposition. — The children's court may modify a child's disposition after transfer of custody to the children, youth and families department when the court invites reconsideration of the child's disposition and finds the modification necessary to safeguard the child or the public interest. State v. Dylan A., 2007-NMCA-114, 142 N.M. 467, 166 P.3d 1121, cert. quashed 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180. There is no conflict between Subsection G [H] of this section and 10-230.1 B NMRA (now 10-252 NMRA). In re Michael L., 2002-NMCA-076, 132 N.M. 479, 50 P.3d 574, cert. denied, 132 N.M. 484, 51 P.3d 527. Subsections F and G [G and H] set out exceptions to the general rule spelled out in Subsection A of this section. In re Michael L., 2002-NMCA-076, 132 N.M. 479, 50 P.3d 574, cert. denied, 132 N.M. 484, 51 P.3d 527. Age confinement must end. — Under the 1981 Children's Code, the courts do not have jurisdiction to extend a child's confinement beyond the age of eighteen. State v. Adam M., 1998-NMCA-014, 124 N.M. 505, 953 P.2d 40. The constitutional prohibition against ex post facto laws prevents the courts from applying the Children's Code adopted in 1993, which permits the confinement of a child until he or she reaches the age of twenty-one where the delinquent acts and original adjudication occurred while the prior code was in effect. State v. Adam M., 1998-NMCA-014, 124 N.M. 505, 953 P.2d 40. Length of commitments. — All commitments under Delinquency Act represent maximum time that a child may spend in custody. State v. Indie C., 2006-NMCA-014, 139 N.M. 80, 128 P.3d 508, cert. denied, 2006-NMCERT-001, 139 N.M. 273, 131 P.3d 660. Court's jurisdiction to extend commitment. — The court's jurisdiction to extend a delinquent child's commitment was not affected by the fact that the juvenile parole board had issued a certificate of discharge. In re Ruben D., 2001-NMCA-006, 130 N.M. 110, 18 P.3d 1063, cert. denied, 130 N.M. 154, 20 P.3d 811. Evidence sufficient to extend commitment. — Evidence that the child did not make any progress in his rehabilitation for the first 18 months of his two-year commitment and of his anger management problems, coupled with his escape and his failure to obtain his graduate equivalency diploma was sufficient to find that an extension of his commitment was necessary. In re Ruben D., 2001-NMCA-006, 130 N.M. 110, 18 P.3d 1063, cert. denied, 130 N.M. 154, 20 P.3d 811. Commitment to boys' school for two years was improper. State v. Doe, 1979-NMCA-021, 93 N.M. 206, 598 P.2d 1166. Motion for reconsideration filed after thirty-day period. — Children's court was without jurisdiction to modify a commitment to the children, youth and families department, where the child's motion for reconsideration on grounds of abuse was filed after the thirty-day period. Instead, the child's remedy for alleged abuses is under Section 32A-4-3 NMSA 1978. In re Zac McV., 1998-NMCA-114, 125 N.M. 583, 964 P.2d 144, cert. denied, 126 N.M. 107, 967 P.2d 447. Child is not entitled to precommitment credit for time served while on probation. State v. Dennis F., 1986-NMCA-081, 104 N.M. 619, 725 P.2d 595. Court's jurisdiction ends upon transferring child to human services department. — Once the children's court transfers legal custody of a child to the health and social services department (now human services department), the court's jurisdiction ends, and so, having transferred legal custody to the department, the children's court had no authority to order the department to place the physical custody of the child with any particular organization. Health & Soc. Servs. Dep't v. Doe, 1978-NMCA-045, 91 N.M. 675, 579 P.2d 801. Authority to petition for parole extension. — Probation officer has authority to petition the court for extension of the period of parole supervision of a child where such action is necessary to safeguard the welfare of the child or the public interest. State v. Doe, 1979-NMCA-024, 92 N.M. 589, 592 P.2d 189. Jurisdiction in subsequent proceeding. — Children's court could adjudicate child as delinquent and commit him to an indeterminate sentence not to exceed two years, notwithstanding his prior adjudication in another case. Moreover, the disposition was not rendered invalid by its effect on the child's eligibility for an alternative placement. In re Augustine R., 1998-NMCA-139, 126 N.M. 122, 967 P.2d 462. Children's court had jurisdiction to modify child's sentence four months after sentencing him to the custody of the children, youth and families department. State v. Carlos A., 1996-NMCA-082, 122 N.M. 241, 923 P.2d 608. Recommitment standard. — An order of recommitment under Subsection D must review the child's progress during his term of initial commitment; the acts that justified the original commitment cannot provide the sole basis for extending the commitment. State v. Sergio B., 2002-NMCA-070, 132 N.M. 375, 48 P.3d 764. Written motion was not required to allow the children's' court to modify a child's sentence. State v. Carlos A., 1996-NMCA-082, 122 N.M. 241, 923 P.2d 608. Court-invited motions. — 10-230.1 B NMRA (now 10-252 NMRA) makes no reference to court-invited motions allowed under Subsection F of this section. In re Michael L., 2002-NMCA-076, 132 N.M. 479, 50 P.3d 574, cert. denied, 132 N.M. 484, 51 P.3d 527. Time limit on court ruling. — Where 10-230.1 NMRA (now 10-252 NMRA) required juvenile's motion to reconsider, filed pursuant to Subsection 32A-2-23G (now H) NMSA 1978, to be ruled upon within 90 (now 60) days after filing, children's court erred in ruling on motion after the 90 (now 60) day period elapsed and the motion should have been deemed denied. In re Christobal V., 2002-NMCA-077, 132 N.M. 474, 50 P.3d 569, cert. denied, 132 N.M. 484, 51 P.3d 527. Court's authority after child in custody of department. — Once legal custody is in the department of human services, the children's court has no authority to prohibit the department from placing physical custody of the child with any particular person. In re Jacinta M., 1988-NMCA-100, 107 N.M. 769, 764 P.2d 1327. Sexual orientation of proposed custodian, standing alone, is not enough to support a conclusion that the person cannot provide a proper environment. In re Jacinta M., 1988-NMCA-100, 107 N.M. 769, 764 P.2d 1327. Time limitation on custody transfer void. — While the court possesses the power to transfer legal custody of delinquent children to an agency responsible for their care and rehabilitation, any attempt by the court to impose a time limitation on the transfer of custody, even if well within the time limitations already authorized by statute, is void as being in excess of the court's jurisdiction. 1979 Op. Att'y Gen. No. 79-37. Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973).