A. Hearings on petitions shall be conducted by the court separate from other proceedings. A jury trial on the issues of alleged delinquent acts may be demanded by the child, parent, guardian, custodian or counsel in proceedings on petitions alleging delinquency when the offense alleged would be triable by jury if committed by an adult. If a jury is demanded and the child is entitled to a jury trial, the jury's function is limited to that of trier of the factual issue of whether the child committed the alleged delinquent acts. If no jury is demanded, the hearing shall be by the court without a jury. Jury trials shall be conducted in accordance with rules promulgated under the provisions of Subsection B of Section 32A-1-5 NMSA 1978. A delinquent child facing a juvenile disposition shall be entitled to a six-member jury. If the children's court attorney has filed a motion to invoke an adult sentence, the child is entitled to a twelve-member jury. A unanimous verdict is required for all jury trials. The proceedings shall be recorded by stenographic notes or by electronic, mechanical or other appropriate means.

B. All hearings to declare a person in contempt of court and all hearings on petitions pursuant to the provisions of the Delinquency Act shall be open to the general public, except where the court in its discretion, after a finding of exceptional circumstances, deems it appropriate to conduct a closed delinquency hearing. Only the parties, their counsel, witnesses and other persons approved by the court may be present at a closed hearing. Those other persons the court finds to have a proper interest in the case or in the work of the court may be admitted by the court to closed hearings on the condition that they refrain from divulging any information concerning the exceptional circumstances that resulted in the need for a closed hearing. Accredited representatives of the news media shall be allowed to be present at closed hearings subject to the conditions that they refrain from divulging information concerning the exceptional circumstances that resulted in the need for a closed hearing and subject to such enabling regulations as the court finds necessary for the maintenance of order and decorum and for the furtherance of the purposes of the Delinquency Act.

C. Those persons or parties granted admission to a closed hearing who intentionally divulge information in violation of Subsection B of this section are guilty of a petty misdemeanor.

D. The court shall determine if the allegations of the petition are admitted or denied. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court after hearing all of the evidence bearing on the allegations of delinquency shall make and record its findings on whether the delinquent acts subscribed to the child were committed by the child. If the court finds that the allegations of delinquency have not been established, it shall dismiss the petition and order the child released from any detention or legal custody imposed in connection with the proceedings.

E. The court shall make a finding of delinquency based on a valid admission of the allegations of the petition or on the basis of proof beyond a reasonable doubt.

F. If the court finds on the basis of a valid admission of the allegations of the petition or on the basis of proof beyond a reasonable doubt that the child is a delinquent, the court may proceed immediately or at a postponed hearing to make disposition of the case.

G. In that part of the hearings held under the Delinquency Act on dispositional issues, all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and may be relied upon to the extent of its probative value even though not competent had it been offered during the part of the hearings on adjudicatory issues.

H. On the court's motion or that of a party, the court may continue the hearing on the petition for a reasonable time to receive reports and other evidence in connection with disposition. The court may continue the hearing pending the receipt of the predisposition study and report if that document has not been prepared and received. During any continuances under this subsection, the court shall make an appropriate order for detention or legal custody.

History: 1978 Comp., § 32A-2-16, enacted by Laws 1993, ch. 77, § 45; 2009, ch. 239, § 18.

Cross references. — For sentencing for petty misdemeanors, see 31-19-1 NMSA 1978.

The 2009 amendment, effective July 1, 2009, in Subsection A, in the fifth sentence, changed the reference from Section 32-1-4 NMSA 1978 to Section 32A-1-5 NMSA 1978.

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.

Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-31 NMSA 1978 have been included in the annotations to this section.

Purpose of proceeding to determine "delinquency" is to decide whether the accused is responsible for prohibited conduct and, when criminal, the consequences may be the same as in the case of an adult. Indeed, it is even possible that ultimately this could result in the juvenile being incarcerated in the penitentiary with adult offenders. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716.

Criteria for detention. — This section does not require the court to consider criteria for detention before entering such an order. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.

Subsections F and H of this section do not permit the children's court to wholly bypass the criteria for detention. State v. Steven B., 2004-NMCA-086, 136 N.M. 111, 94 P.3d 854, cert. denied, 2004-NMCERT-007, 136 N.M. 452, 99 P.3d 1164.

No conflict with 10-229B NMRA. — There is no conflict between the time limit within which a dispositional hearing must be held under 10-229B NMRA (now 10-246 NMRA) and Section 32-1-31H NMSA 1978 (now Subsection H of this section) granting discretion to the children's court in a wide variety of circumstances; the rule simply states that in one specific circumstance that discretion should not be exercised to delay a hearing. In re Paul T., 1994-NMCA-123, 118 N.M. 538, 882 P.2d 1051.

Acceptance of admission by child involves accepting that the child has committed a delinquent act and accepting that the child is a delinquent child. State v. Doe, 1978-NMCA-025, 91 N.M. 506, 576 P.2d 1137.

Obligation to advise of rights. — Although the court has a statutory obligation to advise children before it of their rights under the Children's Code and other laws at each separate appearance, that obligation must be read in light of the legislative purposes expressed in the code, and since the child did not claim any prejudice nor claim that he was not otherwise advised by his attorney of his constitutional or other legal rights, the appellate court would not reverse a commitment order for failure of the trial court to advise the child of his rights. In re Doe, 1975-NMCA-124, 88 N.M. 481, 542 P.2d 61.

Demand requirement for jury trial is ineffective to change constitutional right to a jury trial. State v. Doe, 1980-NMCA-091, 94 N.M. 637, 614 P.2d 1086 (decided under prior law).

Failure to make jury demand — The children's court erred in concluding that a child was not entitled to a jury trial when he failed to make a timely jury demand as provided in 10-228A NMRA (now 10-245 NMRA); the rule can do no more than encourage a counseled decision at an early stage of the proceedings. State v. Eric M., 1996-NMSC-056, 122 N.M. 436, 925 P.2d 1198.

Child's right to waive jury trial. — The state has no right grounded in either state statute, court rule, or the state constitution to impose a right of concurrence on the right of a child to waive his jury trial. In re Christopher K., 1999-NMCA-157, 128 N.M. 406, 993 P.2d 120.

Waiver of right must be done knowingly. — Waiver of a right created by the constitution, a statute or a court-promulgated rule must be done intelligently and knowingly if the right is to be denied the one claiming it. State ex rel. Dep't of Human Servs. v. Perlman, 1981-NMCA-076, 96 N.M. 779, 635 P.2d 588.

Express waiver of right to jury trial required. — Where a child has a right to a trial by jury, such right may be waived, but only by an express waiver. State v. Doe, 1980-NMCA-091, 94 N.M. 637, 614 P.2d 1086, cert. denied, 94 N.M. 675, 615 P.2d 992.

Phrase "when the offense alleged would be triable by jury if committed by an adult" means a district court offense. A child charged with a petty misdemeanor which would have been triable by jury in the magistrate court if committed by an adult was not entitled to jury trial. State v. Doe, 1977-NMCA-092, 90 N.M. 776, 568 P.2d 612, cert. denied, 91 N.M. 3, 569 P.2d 413.

Same treatment as adult. — Prior to the adoption of the state's first juvenile law in 1917, a minor charged with having committed a criminal offense was handled no differently than an adult. Under the provisions of N.M. Const., art. II, § 12, which reads in part, "the right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate," he would have been entitled to have his guilt determined by a jury before he could have been imprisoned. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716.

No imprisonment without jury. — At the time of the adoption of the state constitution, a juvenile could not have been imprisoned without a trial by jury. This being true, no change in terminology or procedure may be invoked whereby incarceration could be accomplished in a manner which involved denial of the right to jury trial. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716.

Driving under the influence and violating Liquor Control Act. — Child who was charged with driving under the influence and violation of the Liquor Control Act was entitled to a jury trial, since an adult would have been entitled to a jury trial if facing two charges with the same penalties as the offenses on which the child was tried, and since the maximum possible aggregate sentence exceeded six months. State v. Benjamin C., 1989-NMCA-075, 109 N.M. 67, 781 P.2d 795, cert denied, 109 N.M. 54, 781 P.2d 782.

State's burden of proof in rebutting the presumption of inadmissibility in 32A-2-14F NMSA 1978. — To overcome the presumption of inadmissibility in 32A-2-14F NMSA 1978, the state must prove by clear and convincing evidence that at the time the thirteen or fourteen-year-old child made his or her statement to a person in a position of authority, the child had the maturity to understand his or her constitutional and statutory rights and the force of will to invoke such rights. In order to obtain the clear and convincing evidence needed to rebut the presumption of inadmissibility, the interrogator who is in a position of authority must first adequately advise the thirteen or fourteen-year-old child of his or her Miranda and statutory rights and then invite the child to explain, on the record, his or her actual comprehension and appreciation of each Miranda warning. State v. DeAngelo M., 2015-NMSC-033, aff'g on other grounds 2015-NMCA-019.

Where thirteen-year-old child, charged with murder, residential burglary, tampering with evidence, and larceny, was subjected to a custodial interrogation by three law enforcement officers, during which child made inculpatory statements regarding a burglary that connected child to a murder, the trial court erred in denying child's motion to suppress the statements where the officers failed to advise child of his Miranda and statutory rights in a clear and intelligible manner and where it was not clear from the record that child fully comprehended and appreciated his constitutional and statutory rights. Moreover, the fact that child continued to answer questions after unambiguously asserting his right to remain silent provided additional evidence that child did not possess either the maturity to understand his rights or the force of will to assert those rights. The state did not meet its burden of rebutting the presumption of inadmissibility under 32A-2-14F NMSA 1978. State v. DeAngelo M., 2015-NMSC-033, aff'g on other grounds 2015-NMCA-019.

Jury size for juvenile disposition. — Whether the child is entitled to a twelve-member jury is not determined by the charges, but by the state's decision to invoke an adult sentence; a child is entitled to a six-member jury unless subject to an adult sentence. State v. DeAngelo M., 2015-NMCA-019, cert. granted, 2015-NMCERT-002.

Where the state's petition for delinquency terms the child as a "delinquent child" and describes the offenses as "delinquent acts", and where the state did not seek an adult sentence, the child was not entitled to a twelve-member jury. State v. DeAngelo M., 2015-NMCA-019, cert. granted, 2015-NMCERT-002.

Felony evidence not charged in petition sustains finding. — Evidence of "an act" constituting a felony, in the absence of contrary evidence, sustains a finding that a child is in need of care or rehabilitation, whether or not the felony act was charged in the petition. State v. Doe, 1979-NMCA-021, 93 N.M. 206, 598 P.2d 1166.

Conviction of crime prerequisite to determination of delinquency. — It is a fundamental right of a party to be convicted of a crime, which is a necessary prerequisite to a determination of delinquency, based upon evidence of the elements of the crime, and in a prosecution for a violation of Section 30-31-23 NMSA 1978, the state must prove that the respondents had knowledge of the presence and character of the item possessed; a degree of furtiveness on the parts of juvenile respondents, in doing their smoking and passing a pipe around between buildings while changing classes, in light of a school regulation prohibiting the smoking of tobacco, was not conduct sufficient to infer that the smokers knew the character of the substance they were using. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Certified statement on appeal supports conclusion of delinquency. — Since the children's court judge's original findings did not support delinquency, but a certified statement by him on appeal did contain findings that supported the judgment, the findings were sufficient to support the conclusion that the child was a delinquent. State v. Doe, 1977-NMCA-078, 91 N.M. 92, 570 P.2d 923.

Two aspects to determination of delinquency. — There are two aspects to the determination that a child is a delinquent child - the act which he committed and the need for care or rehabilitation. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948 (decided under prior law).

On a petition alleging delinquency, the adjudicatory proceedings involve two aspects: (1) whether the child committed the delinquent act, and (2) whether the child is in need of care or rehabilitation. State v. Doe, 1979-NMCA-021, 93 N.M. 206, 598 P.2d 1166 (decided under prior law).

Standard for admissibility of evidence in adjudicatory phases of hearing is clearly different from that in the dispositional phase of the hearing. Doe v. State, 1978-NMSC-068, 92 N.M. 74, 582 P.2d 1287.

Use of predisposition report held constitutionally impermissible. — When a predisposition report received by a judge in a juvenile delinquency case is composed primarily of hearsay evidence which would be clearly incompetent in either of the adjudicatory phases of the proceedings, and it was not shown to be "competent, material and relevant in nature," then to use such hearsay and untested evidence to determine delinquency is constitutionally impermissible as a denial of the child's constitutional right to confront and cross-examine the witnesses against him. Doe v. State, 1978-NMSC-068, 92 N.M. 74, 582 P.2d 1287.

Evidence supporting need for rehabilitation. — Since the evidence showed that a child made an unauthorized entry of the residence of a victim at night with the intent to commit the offense of criminal sexual penetration (which is the third-degree felony of burglary) and that after entering he attempted to commit, at the least, the crime of criminal sexual penetration in the third degree (a fourth-degree felony), and there was no evidence to the contrary, the evidence of either of the felonies sustains the finding that the child is in need of care and rehabilitation. State v. Doe, 1979-NMCA-021, 93 N.M. 206, 598 P.2d 1166 (decided under prior law).

No abuse of discretion in order for committal. — Court did not abuse its discretion in ordering that a child convicted of involuntary manslaughter be committed to the custody of the youth authority (now children, youth and families departments) as there was evidence in the record to support the determination that the child had committed a delinquent act and that the child was in need of care and rehabilitation. State v. Cody R., 1991-NMCA-127, 113 N.M. 140, 823 P.2d 940, cert. denied, 113 N.M. 23, 821 P.2d 1060 (decided under prior law).

No authority to order evaluation although child committed delinquent acts. — Although a child was found to have committed delinquent acts, there was no finding that the child was in need of care or rehabilitation, or a finding that the child was a delinquent child, and thus the children's court lacked authority to order a diagnostic evaluation. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948 (decided under prior law).

Child's right to address court prior to sentencing. — A child has the right to address the children's court before disposition; the children's court should offer a child the opportunity to address the court before pronouncing sentence. State v. Ricky G., 1990-NMCA-101, 110 N.M. 646, 798 P.2d 596.

Conditions necessary to place child on probation. — The children's court can place a delinquent child on probation without finding that the child is in need of care and rehabilitation. Further, the court has discretion regarding whether to dismiss a case or place a child on probation when it has specifically found that the child is not in need of care and rehabilitation. State v. Michael R., 1988-NMCA-087, 107 N.M. 794, 765 P.2d 767 (decided under prior law).

Erroneous findings held not to require reversal. — Since there were findings that supported the judgment and findings that did not support the judgment, the erroneous findings did not require a reversal; they were unnecessary for a decision in this case. State v. Doe, 1977-NMCA-078, 91 N.M. 92, 570 P.2d 923.

Traffic offenses not public hearings. — Hearings for those traffic offenses which are delinquent acts, which come exclusively under the jurisdiction of the children's court, are expressly not public hearings. 1972 Op. Att'y Gen. No. 72-34 (rendered under prior law).

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).

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).

For comment, "Poteet v. Roswell Daily Record, Inc.: Balancing First Amendment Free Press Rights Against a Juvenile Victim's Right to Privacy," see 10 N.M.L. Rev. 185 (1979-1980).

For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980).

For comment, "The Right to Be Present: Should It Apply to the Involuntary Civil Commitment Hearing," see 17 N.M.L. Rev. 165 (1987).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 82 et seq.

Power of juvenile court to require children to testify, 151 A.L.R. 1229.

Applicability of rules of evidence in juvenile delinquency proceedings, 43 A.L.R.2d 1128.

Jury trial: right to jury trial in juvenile court delinquency proceedings, 100 A.L.R.2d 1241.

Defense of infancy in juvenile delinquency proceedings, 83 A.L.R.4th 1135.

Application of Dorszynski v. United States requiring that sentencing court make express finding of "no benefit" from treatment under Youth Corrections Act (18 USCS § 5005 et seq.), 54 A.L.R. Fed. 382.

43 C.J.S. Infants §§ 93, 96.