A. Complaints alleging delinquency shall be referred to probation services, which shall conduct a preliminary inquiry to determine the best interests of the child and of the public with regard to any action to be taken.

B. During the preliminary inquiry on a delinquency complaint, the matter may be referred to another appropriate agency and conferences may be conducted for the purpose of effecting adjustments or agreements that will obviate the necessity for filing a petition. At the commencement of the preliminary inquiry, the parties shall be advised of their basic rights pursuant to Section 32A-2-14 NMSA 1978, and no party may be compelled to appear at any conference, to produce any papers or to visit any place. The child shall be informed of the child's right to remain silent. The preliminary inquiry shall be completed within the time limits set forth in the Children's Court Rules.

C. Prior to a preliminary inquiry being conducted with a child who is detained, the child's parent, guardian or custodian or the child's attorney shall be given reasonable notice by the juvenile probation and parole officer and an opportunity to be present at the preliminary inquiry. If a child is not detained, the preliminary inquiry shall be conducted within thirty days of receipt of the referral from law enforcement. The thirty-day time period may be extended upon a determination by the department that an extension is necessary to conduct a thorough preliminary inquiry and that the extension is not prejudicial to the best interests of the child.

D. When a child is in detention or custody and the children's court attorney does not file a petition within the time limits authorized by the Children's Court Rules, the child shall be released immediately. If a child is not detained and a determination is made to file a petition, the petition shall be filed within sixty days of completion of the preliminary inquiry, unless a motion is granted to extend the time limit for good cause shown. If a child is not in custody or detention, a petition shall not be dismissed for failure to comply with the time limit set forth in this subsection unless there is a showing of prejudice to the child.

E. After completion of the preliminary inquiry on a delinquency complaint involving a misdemeanor, probation services may notify the children's court attorney and recommend an appropriate disposition for the case. If the child has been referred for three or more prior misdemeanors within two years of the instant offense, probation services shall notify the children's court attorney and recommend an appropriate disposition for the case.

F. Probation services shall notify the children's court attorney of the receipt of any complaint involving an act that constitutes a felony under the applicable criminal law. Probation services shall also recommend a disposition to the children's court attorney.

G. The child, through counsel, and the children's court attorney may agree, without judicial approval, to a waiver of time limitations imposed after a petition is filed. A time waiver defers adjudication of the charges. The children's court attorney may place restrictions on a child's behavior as a condition of a time waiver. If the child completes the agreed upon conditions and no new charges are filed against the child, the pending petition shall be dismissed. If the children's court attorney files a new petition against the child, the children's court attorney may proceed on both the original petition and the new charges. The department shall become a party if probation services are requested as a condition of the time waiver.

History: 1978 Comp., § 32A-2-7, enacted by Laws 1993, ch. 77, § 36; 2005, ch. 189, § 12.

The 2005 amendment, effective June 17, 2005, in Subsection B, provided that in a preliminary inquiry the child shall be informed of the child's right to remain silent; added Subsection C, which provided that prior to a preliminary inquiry concerning a child who is detained, the child's parent, guardian or custodian or attorney shall be given notice by the juvenile probation and parole officer and an opportunity to be present; that if the child is not detained, the inquiry shall be conducted within thirty days after receipt of referral from law enforcement; and that the thirty day period may be extended if the extension is necessary to conduct a thorough inquiry and the extension is not prejudicial to the child; and in Subsection D, provided that if a child is not detained and a determination is made to file a petition, the petition shall be filed within sixty days after completion of the preliminary inquiry, unless a motion is granted to extend the time and that if a child is not in custody or detention, a petition shall not be dismissed for failure to comply with the time limit unless the child is prejudiced.

Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-14 NMSA 1978 have been included in the annotations to this section.

Legislative intent. — The legislature intended that there be prompt adjudication of cases under the Children's Code. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Purpose of preliminary inquiry is not to determine guilt or innocence, but to afford probation services insight into the need for filing a petition. State v. Doe, 1977-NMCA-124, 91 N.M. 232, 572 P.2d 960, cert. denied, 91 N.M. 249, 572 P.2d 1257.

There can be valid preliminary inquiry without conference, and therefore without an initial conference involving the child, the parents and probation services. State v. Doe, 1977-NMCA-124, 91 N.M. 232, 572 P.2d 960, cert. denied, 91 N.M. 249, 572 P.2d 1257.

Best interests determination involves exercise of discretion. — A best interest determination, whether by probation services, the children's court attorney, or both, involves the exercise of discretion. State v. Doe, 1982-NMCA-065, 97 N.M. 792, 643 P.2d 1244.

Social determination, not a legal one. — The best interests determination as to the filing of a delinquency petition is a social determination, not a legal determination. State v. Doe, 1982-NMCA-065, 97 N.M. 792, 643 P.2d 1244.

Habeas corpus writ additional means of bringing child before court. — The statutory remedy for bringing dependent and neglected children before the district court was not exclusive and the court could issue a writ of habeas corpus upon application by state department of public welfare (now human services department) to obtain custody of an alleged dependent and neglected child. New Mexico Dep't of Pub. Welfare v. Cromer, 1948-NMSC-046, 52 N.M. 331, 197 P.2d 902 (decided under prior law).

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. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 62 et seq.

Truancy as indicative of delinquency or incorrigibility, justifying commitment of infant or juvenile, 5 A.L.R.4th 1211.

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

43 C.J.S. Infants §§ 93, 99.