How might my child get involved in Children’s Court, and how does a case begin?
As a frustrated parent, should I actively seek to involve my child in the juvenile court system?
This should be one of your last choices. Sometimes frustrated police, social workers or school officials recommend that parents involve the juvenile justice system in their child’s problems by initiating police reports against the child. They hope the court will provide the services that the at-risk youngster needs. Unfortunately, such efforts may dramatically backfire. Consult an attorney or other professional familiar with the children’s court system before acting on any such recommendations.
The juvenile court system was created to address the needs of those children who are committing "delinquent acts," such as battery, residential burglary or acts of violence.
My child has been charged with a delinquent offense. What should I do?
Contact your child’s attorney immediately. An attorney from the Public Defender’s Office has been automatically appointed to represent your child. Call the Public Defender’s Office, listed as such in the phone book, to determine the attorney’s name and phone number.
Why must my child be represented by a lawyer?
The children’s court system in New Mexico is very complicated. In order to make sure that your child is not deprived of his or her liberty unfairly or by mistake, it is New Mexico law that all children before the juvenile court must have attorneys.
Who pays for my child’s lawyer?
You do, as required by law. A public defender was automatically appointed to your child’s case. You have to either hire a private lawyer or make arrangements to pay the public defender. If your income is low you may be eligible for free representation and should go to the Public Defender’s Office and apply. Under the law, children are not old enough to sign contracts. So you, the parents, are required to act for your child and pay for legal representation.
Does my child have constitutional rights in juvenile court?
Yes. Besides the right to have a lawyer, your child also has the right to be present at hearings, the right to require that the state prove the charges beyond a reasonable doubt, the right to ask questions of the state’s witnesses, the right to call witnesses in his or her defense, and the right to remain silent. Your child also has the right to a jury trial for charges that would be felonies in adult criminal court. For lesser charges, the judge decides whether the state has proven the case beyond a reasonable doubt.
Do I have to go to court with my child?
You don’t have to, but you should. As a parent, the Children’s Court looks to you for responsible supervision of your child. Sometimes, if it appears that parents are not being responsible for a child, the court will transfer custody of the child charged with the delinquent act to the state Children, Youth and Families Department or to another private party who is capable of supervision. The court can also join you as Parties to the Petition and bring you within the control of the court. If you flagrantly ignore or violate court orders, judges may fine or even jail you.
Can I expect my child’s lawyer to follow my requests?
Not necessarily. In juvenile court, the lawyer represents your child, not you – even though you might be paying the bill – and your child’s wishes may be different than yours. Most attorneys will listen to you and consider what you say, but in the end the lawyer must represent what your child wants. If you don’t like the decision your child and her attorney have made, you can let the judge know independently. Your child’s attorney does not have to tell you what the child said.
What punishments can the juvenile court impose?
Anything from community service to two years in Boys’ School or Girls’ school, with possible one-year extensions up to the age of 21. Exceptional cases permit a sentence up until the age of 21 for very serious crimes.
A Time Waiver is one option. If the child completes certain educational programs, community service and/or counseling, and does not get in trouble again during the next six months, the charge against the child will be dismissed. This is an informal disposition for minor offenses.
A Consent Decree is the minimum formal disposition, andrequires a child to have six months of supervised probation. If this probation is successfully completed, the charges against the child are dismissed. A wide variety of restrictions may be imposed during probation, including a curfew, counseling, regular contact with a probation officer, driving restrictions, random urinalysis, community service, restitution, educational programs and structured activities.
For more serious offenses, or for children with a history of getting into trouble, a longer probation - up to two years - may be imposed. In some cases, the probation may involve very intensive, structured supervision or treatment in a mental health facility.
Sometimes the judge may require that a child be evaluated before sentencing. The child may be placed in the Youth Diagnostic and Development Center (YDDC) in Albuquerque for up to 15 days. During that time, the child will live at the center, go to the center’s school, be tested by a psychologist and generally be observed. At the end of the period, the people who have watched and tested the child, as well as his probation officer, will decide what recommendations should be made to the court. A report is then prepared, which is sent to the judge, the state and the child’s attorney. The judge does not have to comply with its recommendations but usually does. Evaluations can also occur without commitment to YDDC.
For very serious offenses, a judge may commit a child to remain in a special state school for one or two years. Normally, children committed for one-year stay at YDDC. Those committed for two years go to the New Mexico Boys’ School in Springer or the New Mexico Girls’ School at YDDC. Children who attend these schools must complete an independent treatment plan before they can go before the parole board for possible early discharge. Such a plan usually includes anger management, drug/alcohol treatment, education, life and independent living skills, communication and other social skills training. If the treatment plan fails to achieve the desired results, state law allows the judge to impose one or more one-year extensions to the original sentence until the child turns 21.
If your child is charged with committing one of a few offenses the state Legislature has determined to be especially serious, or if your child has been convicted of committing three or more felony level offenses within the last three years, the district attorney may choose to put your child’s case into a special category called "Youthful Offender." Youthful Offender cases follow the adult Rules of Criminal Procedure. For example, if your child is arrested and held, a bond is set which has to be paid before he or she can be released. Normally, bail bond sureties through a bail bondsman are not allowed. If you cannot afford to bond your child out, the state has six months to bring your child’s case to trial or plea.
If your child admits to the charge or is found guilty at trial, then the court moves to a special Amenability hearing, unique to Youthful Offenders, which is to determine whether your child will be treated as a juvenile or an adult at sentencing. Psychological evidence is taken concerning your child’s ability to be rehabilitated in existing juvenile facilities, such as a residential treatment center or the Boys’ or Girls’ School.
If the court determines that your child should be treated as juvenile, the maximum sentence is a commitment to the Children, Youth and Families Department for period not to exceed his or her 21st birthday. If the court decides to treat your child as an a adult, all the basic adult criminal sentences apply except that the court has greater discretion in sentencing your child to a lesser number of years than basic adult sentences.
Juveniles who are charged with first-degree murder are in a special category called "Serious Youthful Offender." Their case never goes to Children’s Court; it starts and finishes in adult criminal court. However, the adult criminal judge can still impose a juvenile sentence.
May the ruling of the juvenile court judge be appealed?
Yes. Your child’s lawyer may appeal the case to the New Mexico State Court of Appeals.
Are my child’s records confidential?
Yes and No. CYFD preliminary inquiries and probation records are confidential, although they are maintained for years and are available under limited circumstances.
A record open to the public is created once a formal petition has been filed in Children’s Court. All pleadings, motions and dispositions in Children’s Court are kept in a file open to the public, including the media. The press and public may show up at hearings.
These records may be sealed two years after the end of any probation or commitment. A simple motion to seal records may be signed by a judge and filed at the Children’s Court clerk’s office. This prevents almost all access to those records from that time on. A sentencing adult criminal court judge and government personnel agencies still have access to these records despite the seal.
Sealing records does not happen automatically. The child or his family must take action to seal their records.
Special Note - This pamphlet has been issued by the State Bar of New Mexico to inform and not to advise. It is based on new Mexico law in effect at the time of writing. The statements are general and individual facts in any given situation may alter their application or involve other laws not referred to here. You should always seek advice from an attorney if any questions arise. Pamphlets are intended as a public service and are not an endorsement of any attorney or law firm.