COMPETENCY OF CHILDREN

HB0334

HOUSE BILL 334

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Andrea Reeb
and
Nicole Chavez
and
Alan T. Martinez

AN ACT

RELATING TO CHILDREN; PROVIDING THAT A REPORT OF COMPETENCY
EVALUATION SHALL INCLUDE A QUALIFIED PROFESSIONAL'S OPINION AS
TO WHETHER A CHILD IS COMPETENT FOR ADJUDICATION AND IF, IN THE
OPINION OF THE PROFESSIONAL, THE CHILD IS NOT COMPETENT, TO
INCLUDE AN OPINION AS TO WHETHER THE CHILD SATISFIES THE
CRITERIA FOR INVOLUNTARY PLACEMENT; PROVIDING FOR COMMUNITY-BASED COMPETENCY RESTORATION FOR NONDANGEROUS CHILDREN;
PROVIDING A LIST OF CRIMES FOR WHICH A CHILD MAY BE CRIMINALLY
COMMITTED; PROVIDING THAT WITHIN NINETY DAYS AFTER THE COURT
ISSUES AN ORDER FOR INVOLUNTARY PLACEMENT OR COMMITMENT, THE
COURT SHALL CONDUCT A REVIEW HEARING TO DETERMINE COMPETENCY;
PROVIDING THAT A COURT MAY HOLD A CRIMINAL COMMITMENT HEARING
IF THE CHILDREN'S COURT DETERMINES THAT THERE IS NOT A
SUBSTANTIAL PROBABILITY THAT THE CHILD WILL BE RESTORED TO
COMPETENCY; ALLOWING A COURT TO AUTHORIZE A CHILDREN'S COURT
ATTORNEY OF THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT TO USE
THE REPORT; PROVIDING THAT THE CHILDREN'S COURT SHALL HOLD A
HEARING TO DETERMINE WHETHER THE CHILD IS NOT COMPETENT DUE TO
A DEVELOPMENTAL OR INTELLECTUAL DISABILITY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1.
Section
32A-2-21
NMSA 1978 (being Laws 1993,
Chapter 77, Section 50, as amended) is amended to read:

"32A-2-21.
DISPOSITION OF A CHILD WITH A MENTAL DISORDER
OR DEVELOPMENTAL DISABILITY IN A DELINQUENCY PROCEEDING.--

A. If in a hearing at any stage of a proceeding on
a delinquency petition the evidence indicates that the child
has or may have a mental disorder or developmental disability,
the court may:

(1) order the child detained if appropriate
under the criteria established pursuant to the provisions of
the Delinquency Act; and

(2) initiate proceedings for the involuntary
placement
or commitment
of the child as a minor with a mental
disorder or developmental disability pursuant to the provisions
of the Children's Mental Health and Developmental Disabilities
Act.

B. If the child is placed for residential treatment
or habilitation pursuant to the Children's Mental Health and
Developmental Disabilities Act, the department shall retain
legal custody during the period of involuntary placement
or
commitment
or until further order of the court.

C. If a child is committed to a psychiatric
hospital for treatment or habilitation and in the event that
the department should be required to pay more than four hundred
dollars ($400) per day because of the individualized treatment
plan, the annual costs over four hundred dollars ($400) per
child per day will be reported annually by the department to
the legislative finance committee.

D. The child may remain in the residential
treatment or habilitation facility pending the disposition of
the delinquency petition.

E. When a child in departmental custody needs
involuntary placement
or commitment
for residential mental
health or developmental disability services as a result of a
mental disorder or developmental disability, the department
shall request the children's court attorney to petition for
that child's placement pursuant to the provisions of the
Children's Mental Health and Developmental Disabilities Act.

F. A child subject to the provisions of the
Delinquency Act who receives treatment in a residential
treatment or habilitation program shall enjoy all the
substantive and procedural rights set forth in the Children's
Mental Health and Developmental Disabilities Act.

[
G. A child's competency to stand trial or
participate in his own defense may be raised by a party at any
time during a proceeding. If the child has been accused of an
act that would be considered a misdemeanor if the child were an
adult and the child is found to be incompetent to stand trial,
the court shall dismiss the petition with prejudice and may
recommend that the children's court attorney initiate
proceedings pursuant to the provisions of the Children's Mental
Health and Developmental Disabilities Act. In all other cases,
the court shall stay the proceedings until the child is
competent to stand trial; provided that a petition shall not be
stayed for more than one year. The court may order treatment
to enable the child to attain competency to stand trial and may
amend the conditions of release pursuant to Sections 32A-2-11
and 32A-2-13 NMSA 1978. The child's competency to stand trial
shall be reviewed every ninety days for up to one year. The
court shall dismiss the petition without prejudice if, at any
time during the year, the court finds that a child cannot be
treated to competency or if, after one year, the court
determines that a child is incompetent to stand trial or
participate in his own defense. Upon dismissal, the court may
recommend that the children's court attorney initiate
proceedings pursuant to the provisions of the Children's Mental
Health and Developmental Disabilities Act.

H.
]
G.
Involuntary residential treatment shall only
occur pursuant to the provisions of the Children's Mental
Health and Developmental Disabilities Act.

H. A question regarding a child's competency for
adjudication or participation in the child's own defense may be
raised by any party or the court at any time during a
proceeding. If a party or the court raises a question as to a
child's competency, the delinquency proceeding shall be
suspended until the question is resolved.

I. A child's competency shall be evaluated by a
psychologist or psychiatrist or other qualified professional
recognized by the children's court as an expert. The qualified
professional who evaluates a child's competency shall prepare
an evaluation report and submit the report as ordered by the
court.

J. An evaluation report shall include a qualified
professional's opinion as to whether a child is competent for
adjudication and has:

(1) a sufficient, present ability to consult
with the child's lawyer with a reasonable degree of rational
understanding;

(2) a rational and factual understanding of
the proceedings against the child; and

(3) the capacity to assist in the child's own
defense and to comprehend the reasons for punishment.

K. If, in the opinion of the qualified
professional, a child is not competent for adjudication, an
evaluation report shall include the qualified professional's
opinion as to whether the child satisfies the criteria for
involuntary placement or commitment in accordance with the
Children's Mental Health and Developmental Disabilities Act.

L. A competency hearing shall be held:

(1) within thirty days from the date an
evaluation report is submitted to the court for a detained
child alleged to have committed a felony;

(2) within ten days from the date an
evaluation report is submitted to the court for a detained
child alleged to have committed a misdemeanor; and

(3) within a reasonable time after an
evaluation report is submitted to the court for a child who is
not detained.
"

SECTION 2.
A new section of the Delinquency Act, Section
32A-2-21.1 NMSA 1978, is enacted to read:

"32A-2-21.1. [
NEW MATERIAL
] DETERMINATION OF
COMPETENCY--INVOLUNTARY PLACEMENT OR COMMITMENT--REPORT.--

A. If, after a competency hearing, a court
determines that a child is not competent for adjudication, the
court shall determine if the child is dangerous. A child who
is not competent is dangerous if the court finds by clear and
convincing evidence that the child presents a serious threat
of:

(1) committing murder in the first or second
degree, as provided in Section 30-2-1 NMSA 1978;

(2) inflicting great bodily harm, as defined
in Section 30-1-12 NMSA 1978, on another person;

(3) committing criminal sexual penetration, as
provided in Section 30-9-11 NMSA 1978;

(4) committing criminal sexual contact of a
minor, as provided in Section 30-9-13 NMSA 1978;

(5) committing abuse of a child, as provided
in Subsection D of Section 30-6-1 NMSA 1978;

(6) violating a provision of the Sexual
Exploitation of Children Act;

(7) committing human trafficking, as provided
in Section 30-52-1 NMSA 1978;

(8) committing aggravated arson, as provided
in Section 30-17-6 NMSA 1978; or

(9) committing any "serious violent offense"
enumerated in Subparagraphs (a) through (n) of Paragraph (4) of
Subsection N of Section 33-2-34 NMSA 1978 with the use of a
firearm.

B. If the court determines that a child is not
dangerous, the court may order the child to participate in a
nonresidential treatment or habilitation program or dismiss the
delinquency petition without prejudice in the interests of
justice; provided that if the court dismisses the petition, the
court may:

(1) advise the children's court attorney to
consider the initiation of involuntary placement or commitment
proceedings in accordance with the Children's Mental Health and
Developmental Disabilities Act and may order the child's
detention at a detention facility for a maximum of seven days
to facilitate initiation of those proceedings; or

(2) advise the children's court attorney to
consider initiation of proceedings in accordance with the
Children's Mental Health and Developmental Disabilities Act
but
may not detain a child for that purpose.

C. A treatment plan for a nonresidential treatment
or habilitation program that is ordered pursuant to this
section shall be targeted to restore a child to competency. A
court may order a child to participate in a nonresidential
treatment or habilitation program for no longer than ninety
days, and:

(1) within thirty days of the date that the
child was ordered to participate in the program, the person
supervising the child's treatment or habilitation shall submit
a progress report to the court and both parties that includes:

(a) an initial assessment of the child
and a description of the programming that will be provided to
the child;

(b) a report on the child's amenability
to competency restoration;

(c) an assessment of the program's
capacity to provide appropriate programming for the child; and

(d) an opinion as to the probability of
the child being restored to competency within ninety days from
the date that the court ordered the child's participation in
the program;

(2) no later than ninety days from the date
that the court ordered the child to participate in a
nonresidential treatment or habilitation program, the court
shall hold a review hearing and determine if the child has been
restored to competency, and at least seven days prior to the
review hearing, the person supervising the child's treatment or
habilitation shall submit a written report that includes:

(a) an opinion as to whether the child
has been restored to competency;

(b) if the child is receiving
medication, information from the prescribing physician about
the type, dosage and effect of the medication on the child's
appearance, actions and demeanor;

(c) if the child remains not competent,
an opinion as to whether the child satisfies the criteria for
involuntary commitment in accordance with the Children's Mental
Health and Developmental Disabilities Act and whether: 1) as a
result of a mental disorder, the child presents a likelihood of
serious harm to the child's self or others; 2) the child needs
and is likely to benefit from involuntary placement and
treatment; and 3) the proposed placement is consistent with the
treatment needs of the child and the least drastic means
principle; and

(d) if the child remains not competent,
an opinion as to whether the child satisfies the criteria for
involuntary placement in accordance with the Children's Mental
Health and Developmental Disabilities Act and whether the
child: 1) has a primary diagnosis of a mental disorder; 2) has
demonstrated a history of lack of compliance with treatment for
a mental disorder; 3) is unwilling or unlikely, as a result of
a mental disorder, to participate in voluntary treatment that
would enable the child to live safely in the community with the
child's natural supports and without court supervision; 4) is
in need of residential treatment or habilitation as the least
restrictive appropriate alternative to prevent a relapse or
deterioration likely to result in serious harm to the child's
self or others; and 5) will likely benefit from residential
treatment or habilitation and have the child's best interests
served; and

(3) if, after a review hearing, the court
finds that the child is competent, the petition shall proceed
to the adjudication hearing, but if the court finds that the
child remains not competent, the case shall be dismissed
without prejudice and the court may advise the children's court
attorney to consider initiating proceedings in accordance with
the Children's Mental Health and Developmental Disabilities
Act.

D. If the court determines that a child who is not
competent is dangerous, the court may order the child's
placement at a residential treatment or habilitation program
for competency restoration. If the court orders such
placement, the court shall enter a transport order that
provides for the child's return to the local detention facility
within seventy-two hours upon the child being restored to
competency, completion of the competency residential treatment
or habilitation program or as otherwise required by the court.
A child placed at a residential treatment or habilitation
program for competency restoration shall be provided with
treatment available to children subject to involuntary
placement and shall:

(1) be detained by the department in a secure,
locked facility; and

(2) not be released from that facility except
pursuant to an order of the court that committed the child.

E. The department shall admit a child for
competency restoration within thirty days of receipt of the
court's order of commitment of an incompetent child and of the
necessary and available documents reasonably required for
admission pursuant to written policies adopted by the secretary
of children, youth and families or the secretary's designee.
If the secretary of children, youth and families or the
secretary's designee determines that the department does not
have the ability to meet the needs of the child, the secretary
or the secretary's designee may refuse admission by providing
written certification to the committing court and the parties
of the department's inability to meet the needs of the child.
The certification shall be made within fourteen days of the
receipt of the court's order of commitment and necessary and
available documents reasonably required for admission pursuant
to written policies adopted by the secretary of children, youth
and families or the secretary's designee. Within ten days of
filing of the certification, the court shall conduct a hearing
for further disposition of the criminal case.

F. Within thirty days of a child's admission to a
facility for competency restoration, the department shall file
with the court, the state and the defense:

(1) an initial assessment of the child and
treatment plan;

(2) a report on the child's amenability to
competency restoration;

(3) an assessment of the department's capacity
to provide appropriate treatment for the child; and

(4) an opinion as to the probability of the
child being restored to competency within nine months from the
date the court determined the child is not competent for
adjudication."

SECTION 3.
A new section of the Delinquency Act, Section
32A-2-21.2 NMSA 1978, is enacted to read:

"32A-2-21.2. [
NEW MATERIAL
] DETERMINATION OF
COMPETENCY--NINETY-DAY REVIEW--REPORTS--CONTINUING TREATMENT.--

A. Within ninety days after a court issues an order
for involuntary placement or commitment of a child for
competency restoration, the court, sitting without a jury,
shall conduct a review hearing, unless waived by the defense,
and shall determine:

(1) whether the child has been restored to
competency or remains not competent for adjudication;

(2) if the child remains not competent,
whether the child is making progress under treatment toward
being restored to competency within nine months from the date
the court determined the defendant is not competent for
adjudication; and

(3) whether the child remains dangerous as
determined by the court.

B. At least seven days prior to the review hearing,
the treatment supervisor shall submit a written progress report
to the court, the state and the defense that includes:

(1) the clinical findings regarding the
child's progress toward competency restoration and the facts
upon which the findings are based;

(2) an opinion as to whether the child has
been restored to competency or as to whether the child is
making progress toward being restored to competency within nine
months from the date the court determined the child is not
competent for adjudication and whether there is a substantial
probability that the child will be restored to competency
within nine months from the date the court determined the child
is not competent for adjudication;

(3) an opinion as to whether the child remains
dangerous as determined by the court; and

(4) if the child is receiving medication,
information from the prescribing physician indicating the type,
dosage and effect of the medication on the child's appearance,
actions and demeanor.

C. If the children's court finds the child is
restored to competency, the court shall set the matter for
adjudication; provided that if the child is in need of
continued care or treatment and the department agrees to
continue to provide it, the court may order continued care or
treatment of the child until the conclusion of the delinquency
proceedings.

D. If the children's court finds that the child
remains not competent but is making progress toward being
restored to competency, the court may continue or modify its
original treatment order entered; provided that:

(1) the question of the child's competency
shall be reviewed again not later than nine months from the
date the court determined the child is not competent for
adjudication; and

(2) the treatment supervisor shall submit a
written progress report as specified in Subsection B of this
section at least seven days prior to such hearing.

E. If the children's court finds that the child
remains not competent, that the child is not making progress
toward being restored to competency and that there is not a
substantial probability that the child will be restored to
competency within nine months from the date the court
determined the child is not competent for adjudication, the
court shall proceed pursuant to Section 32A-2-21.4 NMSA 1978.
However, if the child is in need of continued care and
treatment and the department agrees to continue to provide
continued care and treatment, the children's court may order
continued care or treatment of the child by the department
until the conclusion of the delinquency proceedings."

SECTION 4.
A new section of the Delinquency Act, Section
32A-2-21.3 NMSA 1978, is enacted to read:

"32A-2-21.3. [
NEW MATERIAL
] DETERMINATION OF
COMPETENCY--INCOMPETENT CHILDREN.--If at any time the
children's court determines that there is not a substantial
probability that a child will be restored to competency within
nine months from the date the court determined the child is not
competent for adjudication, the children's court may:

A. hold a child commitment hearing in accordance
with Section 32A-2-21.4 NMSA 1978 within three months if the
child is charged with:

(1) murder in the first or second degree, as
provided in Section 30-2-1 NMSA 1978;

(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;

(3) criminal sexual penetration, as provided
in Section 30-9-11 NMSA 1978;

(4) criminal sexual contact of a minor, as
provided in Section 30-9-13 NMSA 1978;

(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978;

(6) a crime provided for in the Sexual
Exploitation of Children Act;

(7) human trafficking, as provided in Section
30-52-1 NMSA 1978;

(8) aggravated arson, as provided in Section
30-17-6 NMSA 1978; or

(9) any "serious violent offense" enumerated
in Subparagraphs (a) through (n) of Paragraph (4) of Subsection
N of Section 33-2-34 NMSA 1978 with the use of a firearm;

B. release the child from custody and dismiss the
petition with prejudice; or

C. dismiss the petition without prejudice in the
interest of justice; provided that if the treatment supervisor
reports to the court that the child satisfies the criteria for
involuntary commitment in accordance with the Children's Mental
Health and Developmental Disabilities Act, the department shall
initiate those proceedings, and the court may order the
detention of the child for a maximum of seven days to
facilitate the initiation of those proceedings; and provided
further that the children's court attorney may initiate
involuntary placement or commitment proceedings in the
department's stead."

SECTION 5.
A new section of the Delinquency Act, Section
32A-2-21.4 NMSA 1978, is enacted to read:

"32A-2-21.4. [
NEW MATERIAL
] DETERMINATION OF
COMPETENCY--CRIMINAL COMMITMENT--EVIDENTIARY HEARING.--

A. If the court determines that there is not a
substantial probability that a child who is not competent for
adjudication will be restored to competency, a disposition
hearing to determine the sufficiency of the evidence of the
child's guilt shall be held if the child is charged with:

(1) murder in the first or second degree, as
provided in Section 30-2-1 NMSA 1978;

(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;

(3) criminal sexual penetration, as provided
in Section 30-9-11 NMSA 1978;

(4) criminal sexual contact of a minor, as
provided in Section 30-9-13 NMSA 1978;

(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978;

(6) a crime provided for in the Sexual
Exploitation of Children Act;

(7) human trafficking, as provided in Section
30-52-1 NMSA 1978;

(8) aggravated arson, as provided in Section
30-17-6 NMSA 1978; or

(9) any "serious violent offense" enumerated
in Subparagraphs (a) through (n) of Paragraph (4) of Subsection
N of Section 33-2-34 NMSA 1978 with the use of a firearm.

B. A disposition hearing shall be conducted by the
children's court without a jury. The children's court attorney
may introduce evidence relevant to the question of the child's
guilt of the crime charged. The children's court may admit
hearsay or affidavit evidence on secondary matters such as
testimony to establish the chain of possession of physical
evidence, laboratory reports, authentication of transcripts
taken by official reporters, children's court and business
records and public documents.

C. If the evidence does not establish by clear and
convincing evidence that the child committed the crime charged,
the children's court shall dismiss the criminal case with
prejudice.

D. If the children's court finds by clear and
convincing evidence that the child committed the crime and has
not made a finding of dangerousness in accordance with Section
32A-2-21.1 NMSA 1978, the court shall dismiss the criminal case
without prejudice.

E. If the children's court finds by clear and
convincing evidence that the child committed the crime charged
and enters a finding that the child remains not competent for
adjudication and remains dangerous as determined by the court
in accordance with Section 32A-2-21.1 NMSA 1978:

(1) legal custody of the child shall be
transferred to the department for commitment to a residential
treatment or habilitation program;

(2) the maximum term of a child's commitment
shall be until the child reaches the age of twenty-five;

(3) significant changes in the child's
condition, including trial competency and dangerousness, shall
be reported in writing to the court, state and defense; and

(4) at least every year, the children's court
shall conduct a hearing upon notice to the parties and the
department charged with detaining the child. At the hearing,
the court shall enter findings on the issues of trial
competency and dangerousness:

(a) upon a finding that the child is
competent to proceed in a criminal case, the court shall
continue with the criminal proceeding;

(b) if the child continues to remain not
competent for adjudication and dangerous, the court shall
review the child's competency and dangerousness every two years
until expiration of the period of commitment equal to the
maximum sentence to which the child would have been subject had
the child been convicted in a criminal proceeding; and

(c) if the court finds upon the court's
two-year review hearing that the child is no longer dangerous,
the child shall be released.

F. At any time, including after a court dismisses a
case against a child, the department or the children's court
attorney may initiate involuntary commitment proceedings in
accordance with the Children's Mental Health and Developmental
Disabilities Act. If the children's court attorney indicates
an intent to initiate involuntary commitment proceedings in
accordance with that act, the court may detain the child for a
maximum of seven days only to facilitate the initiation of
those proceedings at any licensed psychiatric hospital."

SECTION 6.
A new section of the Delinquency Act, Section
32A-2-21.5 NMSA 1978, is enacted to read:

"32A-2-21.5. [
NEW MATERIAL
] HEARING TO DETERMINE
DEVELOPMENTAL OR INTELLECTUAL DISABILITY.--

A. Upon motion of the defense, the court shall hold
a hearing to determine whether a child is not competent due to
a developmental or intellectual disability, and the evaluator
shall be provided with the necessary and available documents
reasonably required for admission pursuant to written policies
adopted by the secretary of children, youth and families or the
secretary's designee.

B. If the court finds by a preponderance of the
evidence that the child is not competent for adjudication due
to a developmental or intellectual disability and that there is
not a substantial probability that the child will be restored
to competency within nine months from the date the court
determined the child is not competent for adjudication, the
court shall notify the department of the court's finding.
Within sixty days of receipt of the court's notification, the
department shall determine whether the child presents a
likelihood of serious harm to the child's self or others.

C. If the department determines that the child
presents a likelihood of serious harm to self or others, the
department shall initiate involuntary commitment proceedings in
accordance with the Children's Mental Health and Developmental
Disabilities Act is charged with:

(1) murder in the first or second degree, as
provided in Section 30-2-1 NMSA 1978;

(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;

(3) criminal sexual penetration, as provided
in Section 30-9-11 NMSA 1978;

(4) criminal sexual contact of a minor, as
provided in Section 30-9-13 NMSA 1978;

(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978;

(6) a crime provided for in the Sexual
Exploitation of Children Act;

(7) human trafficking, as provided in Section
30-52-1 NMSA 1978;

(8) aggravated arson, as provided in Section
30-17-6 NMSA 1978; or

(9) any "serious violent offense" enumerated
in Subparagraphs (a) through (n) of Paragraph (4) of Subsection
N of Section 33-2-34 NMSA 1978 with the use of a firearm.

D. After the involuntary commitment hearing or upon
expiration of fourteen months from the court's initial
determination that the child is not competent for adjudication,
the criminal case shall be dismissed without prejudice."