A. A child alleged to be a delinquent child may be placed or detained, pending a court hearing, in any of the following places:

(1) a licensed foster home or a home otherwise authorized under the law to provide foster or group care;

(2) a facility operated by a licensed child welfare services agency;

(3) a shelter-care facility provided for in the Children's Shelter Care Act [32A-9-1 to 32A-9-7 NMSA 1978] that is in compliance with all standards, conditions and regulatory requirements and that shall be considered a temporary placement subject to judicial review within thirty days of placement;

(4) a detention facility certified by the department for children alleged to be delinquent children;

(5) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court and that meets the standards for detention facilities pursuant to the Children's Code and federal law; or

(6) the child's home or place of residence, under conditions and restrictions approved by the court.

B. A child alleged to be a youthful offender may be detained, pending a court hearing, in any of the following places:

(1) a detention facility, licensed by the department, for children alleged to be delinquent children; or

(2) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent children may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court and that meets the standards for detention facilities pursuant to the Children's Code and federal law.

C. A child adjudicated as a youthful offender who is violent toward staff or other residents in a detention facility may be transferred and detained, pending a court hearing, in a county jail. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of the child's age, and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult.

D. A child who has previously been incarcerated as an adult or a person eighteen years of age or older shall not be detained in a juvenile detention facility or a facility for the long-term care and rehabilitation of delinquent children, but may be detained in a county jail. A child shall not be transferred to a county jail solely on the basis of attaining the age of eighteen while detained in a juvenile detention facility. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of the child's age, and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult.

E. A child alleged to be a serious youthful offender may be detained pending a court hearing in any of the following places, prior to arraignment in metropolitan, magistrate or district court:

(1) a detention facility, licensed by the department, for children alleged to be delinquent children;

(2) any other suitable place, other than a facility for the long-term care and rehabilitation of delinquent children to which children adjudicated as delinquent children may be confined pursuant to Section 32A-2-19 NMSA 1978, designated by the court that meets the standards for detention facilities pursuant to the Children's Code and federal law; or

(3) a county jail, if a facility in Paragraph (1) or (2) of this subsection is not appropriate. In the event that a child is detained in a jail, the director of the jail shall presume that the child is vulnerable to victimization by inmates within the adult population because of the child's age and shall take measures to provide protection to the child. However, provision of protective measures shall not result in diminishing a child's civil rights to less than those existing for an incarcerated adult.

F. When a person who is eighteen years of age or older is taken into custody and transported to an adult facility on a juvenile warrant or an adult warrant or other adult charges and an outstanding juvenile warrant exists, notice shall be given to the children's court attorney and the juvenile probation and parole office in the jurisdiction where the juvenile warrant was issued within one day of the person being taken into custody. The juvenile probation and parole office shall give notice that the person has been taken into custody to the children's court judge and the attorney who represented the person in the juvenile proceeding.

G. In addition to the judicial review required by Paragraph (3) of Subsection A of this section, a child detained in an out-of-home placement pursuant to this section may request judicial review of the appropriateness of the placement.

History: 1978 Comp., § 32A-2-12, enacted by Laws 1993, ch. 77, § 41; 2003, ch. 225, § 7; 2005, ch. 189, § 14; 2009, ch. 239, § 15.

The 2009 amendment, effective July 1, 2009, in Paragraph (3) of Subsection A, after "Children's Shelter Care Act", deleted "or a detention facility certified by the department for children alleged to be delinquent children" and added the remainder of the sentence; added Paragraph (4) of Subsection A; in Subsection D, added the second sentence; and added Subsection G.

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 F, which provided that when a person who is eighteen years of age or older is taken into custody and transported to an adult facility and an outstanding warranty exists, notice shall be given to the children's court attorney and the juvenile probation and parole officer in the jurisdiction where the warrant was issued within one day after the person is taken into custody and that the juvenile probation and parole officer shall give notice to the children's court judge and the person's attorney.

The 2003 amendment, effective July 1, 2003, in Paragraphs A(4) and E(2), substituted "pursuant to Section 32A-2-19" for "under Section 32-2-19" following "may be confined", substituted "pursuant to" for "under" following "for detention facilities"; added Paragraph A(5); added present Subsections B to D and redesignated former Subsection B as Subsection E; in Paragraph E(3), substituted "jail" for "facility" following "director of the", substituted "inmates" for "detainees" following "to victimization by", and substituted "provision of protective measures shall not" for "no such protective measure should" following "However".

Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-25 NMSA 1978 have been included in the annotations to this section.

Child in need of supervision may not be held in jail. — Under no circumstances may a child in need of supervision be held in a jail or other facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged to be delinquent children. This prohibition includes jail lock-up, drunk tanks or county jails. Every effort should be made to expedite transfer of physical custody of the child in need of supervision to a suitable shelter-care facility. 1979 Op. Att'y Gen. No. 79-08.

Effect of waiver. — A child alleged to be delinquent or in need of supervision, and the child's parents, cannot sign a waiver which would allow the child to be detained pending final adjudication in a local jail facility with total sight and only partial sound segregation from adult jail detainees. 1990 Op. Att'y Gen. No. 90-16.

Detention of child until bond posted not permitted. — City police acting unilaterally may not detain a child in jail until his parents post bond. In the absence of a court order or a determination by the juvenile probation office, no detention is permitted. 1975 Op. Att'y Gen. No. 75-58.

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. — Authority of court to order juvenile delinquent incarcerated in adult penal institution, 95 A.L.R.3d 568.