2023 New Mexico Statutes › Chapter 32A - Children's Code › Article 2 - Delinquency › Section 32A-2-10 - Release or delivery from custody.

A. A person taking a child into custody shall, with all reasonable speed:
(1) release the child to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian and issue verbal counsel or warning as may be appropriate;
(2) release the child to the child's parent, guardian or custodian or an adult authorized to sign on behalf of the child's parent, guardian or custodian upon written promise to bring the child before the court when requested by the court. If the parent, guardian or custodian or an adult authorized to sign on behalf of the child's parent, guardian or custodian fails, when requested, to bring the child before the court as promised, the court may order the child taken into custody and brought before the court;
(3) deliver the child to a place of detention as provided in Section 32A-2-12 NMSA 1978;
(4) deliver the child to a medical facility, if available, if the child is believed to be suffering from a serious illness that requires prompt treatment or prompt diagnosis;
(5) deliver the child to an evaluation facility, if available, if the person taking the child into custody has reasonable grounds to believe the child presents a likelihood of serious harm to the child's self or others or is suffering from some other serious mental condition or illness that requires prompt treatment or prompt diagnosis; or
(6) deliver the child to a center or organization that the court or the department recognizes as an alternative to secure detention.
B. When an alleged delinquent child is delivered to a place of detention or a center or organization recognized as an alternative to secure detention as provided in Section 32A-2-12 NMSA 1978, only a department employee or a trained county detention professional designated by the department may place the child in detention or with a center or organization recognized as an alternative to secure detention in accordance with the criteria for detention set forth in Section 32A-2-11 NMSA 1978. If the criteria for detention of an alleged delinquent child are not met, the child shall be released from custody.
C. A child under the age of twelve shall not be held in detention. If a child under the age of twelve poses a substantial risk of harm to the child's self or others, a peace officer may detain and transport that child for emergency mental health evaluation and care in accordance with Section 32A-6A-19 NMSA 1978.
D. If a child is taken into custody and is not released to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian, the person taking the child into custody shall give written notice thereof as soon as possible, and in no case later than twenty-four hours, to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian and to the court, together with a statement of the reason for taking the child into custody.
E. In all cases when a child is taken into custody, the child shall be released to the child's parent, guardian or custodian or an adult authorized by the child's parent, guardian or custodian in accordance with the conditions and time limits set forth in the Children's Court Rules.
History:
1978 Comp., § 32A-2-10, enacted by Laws 1993, ch. 77, § 39; 2003, ch. 225, § 5; 2005, ch. 189, § 13.; 2009, ch. 239, § 14; 2023, ch. 125, § 1.
ANNOTATIONS
The 2023 amendment,
effective June 16, 2023, raised the age limit at which a child may be held in custody to twelve years of age or older; and in Subsection C, after each occurrence of "age of", changed "eleven" to "twelve".
The 2009 amendment,
effective July 1, 2009, in Paragraph (1) of Subsection A, after "guardian or custodian", added "or an adult authorized by the child's parent, guardian or custodian"; in Paragraph (2) of Subsection A, after "guardian or custodian", added "or an adult authorized to sign on behalf of the child's parent, guardian or custodian"; added Paragraph (6) of Subsection A; in Subsection B, after "a place of detention" added "or a center or organization recognized as an alternative to secure detention" and after "place the child in detention", added "or with a center or organization recognized as an alternative to secure detention"; in Subsection C, changed the reference from Section 32A-6-11 NMSA 1978 to Section 32A-6A-19 NMSA 1978; in Subsection D, in two places, after "guardian or custodian", added "or an adult authorized by the child's parent, guardian or custodian"; and in Subsection E, after "guardian or custodian", added "or an adult authorized by the child's parent, guardian or custodian".
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, added Subsection D to provide that a child under the age of eleven shall not be held in detention and that if a child under eleven poses a risk or harm to himself or others, a peace officer may detain and transport the child for emergency mental health evaluation and care.
The 2003 amendment,
effective July 1, 2003, substituted "Section 32A-2-12" for "Section 32-2-11" in Paragraph A(3); rewrote Subsection B; and deleted "and Forms" at the end of Subsection D.
Decisions under prior law.
— In light of the similarity of the provisions, annotations decided under former Section 32-1-23 NMSA 1978 have been included in the annotations to this section.
Scope of custody.
— While there appears to be no doubt that juveniles may be taken into custody for the purpose of questioning, care must be exercised as to what is done with them after the taking of custody, particularly in view of the provision of the law that a juvenile is not to be unduly detained in a prison or jail. Furthermore, in most cases, the juvenile should be released to the custody of his parent or other responsible adult until his case is to be disposed of. 1960 Op. Att'y Gen. No. 60-166 (see 1964 Op. Att'y Gen. No. 64-56).
No detention in absence of court order or probation determination.
— In the absence of a court order, detention was not permitted by statute in the absence of the juvenile probation office's determination that it is warranted. Thus the city police, acting on their own, may not detain a child. 1975 Op. Att'y Gen. No. 75-58.
No bail or bond as of right.
— Under the Juvenile (now Children's) Code, a juvenile is not entitled to bail nor is he entitled, as a matter of right, to bond on supersedeas after a determination has been made that he is a juvenile delinquent and a sentence of detention has been passed against him. Of course, so far as the question of supersedeas bond is concerned, the matter would be under the rules of the court and discretionary with the court. 1957 Op. Att'y Gen. No. 57-215.
Law reviews.
— For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules,"
see
6 N.M.L. Rev. 331 (1976).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Bail: right of bail in proceedings in juvenile courts, 53 A.L.R.3d 848.