2006 New Mexico Statutes - Section 32A-6-13 — Involuntary residential treatment.

32A-6-13. Involuntary residential treatment.

A.     No child may receive treatment for mental disorders or habilitation for developmental disabilities on an involuntary residential basis except as provided in this section.   

B.     Any person who believes that a child, as a result of a mental disorder or developmental disability, is in need of residential mental health or developmental disabilities services may request that a children's court attorney file a petition with the court for the child's involuntary placement. The petition shall include a detailed description of the symptoms or behaviors of the child that support the allegations in the petition, a list of prospective witnesses for involuntary placement and a summary of matters to which they will testify.  The petition should also contain a discussion of the alternatives to residential care that have been considered and the reasons for rejecting the alternatives.  A copy of the petition shall be served upon the child and a copy of the petition shall be served upon a parent, guardian or legal custodian and upon the child's attorney or guardian ad litem.   

C.     The court shall, upon receiving the petition, appoint counsel for the child unless the child has retained an attorney or an attorney or guardian ad litem has been appointed pursuant to the provisions of the Children's Mental Health or Developmental Disabilities Act [ 32A-6-1 NMSA 1978].  The attorney or guardian ad litem shall represent the child at all stages of the proceedings.   

D.     If, after interviewing the child, the child's attorney or guardian ad litem determines that the child understands his rights and desires to waive the child's presence at the hearing on the issue of involuntary placement, the attorney or guardian ad litem shall submit a verified written statement to the court explaining the attorney's or guardian ad litem's understanding of the child's intent.  If the court is satisfied that the child has voluntarily and knowingly waived his right to be present at the hearing, the child may be involuntarily placed for residential treatment or habilitation at a hearing at which the child is not present.  By waiving the right to be present at the involuntary placement hearing, the child waives no other rights.   

E.     An involuntary placement hearing shall be held within seven days of the emergency admission of the child to a residential facility under this section or within seven days from a child's declaration that he desires to terminate his voluntary admission to a residential treatment or habilitation program.   

F.     At the involuntary placement hearing, the child shall:   

(1)     at all times be represented by counsel;   

(2)     have the right to present evidence, including the testimony of a mental health and developmental disabilities professional of his own choosing;   

(3)     have the right to cross-examine witnesses;   

(4)     have the right to a complete record of the proceedings; and   

(5)     have the right to an expeditious appeal of an adverse ruling.   

G.     The parent, guardian or legal custodian of a child involved in an involuntary placement hearing shall have automatic standing as witnesses and shall be allowed to testify by telephone or through a written affidavit if circumstances make personal testimony too burdensome.   

H.     The court shall include in its findings either a statement of the child's parents', guardian's or custodian's opinion about whether the child should be involuntarily placed in a residential treatment or habilitation program; a statement detailing the efforts made to ascertain the parent's, guardian's or custodian's opinion; or a statement of why it was not in the child's best interests to have the parent or guardian involved.   

I.     The court shall make an order involuntarily placing the child in residential care only if it is shown by clear and convincing evidence:   

(1)     that as a result of mental disorder or developmental disability the child needs the treatment or habilitation services proposed;   

(2)     that as a result of mental disorder or developmental disability the child is likely to benefit from the treatment or habilitation services proposed;   

(3)     that the proposed involuntary placement is consistent with the treatment or habilitation needs of the child; and   

(4)     that the proposed involuntary placement is consistent with the least drastic means principle.   

J.     If the court determines that the child does not meet the criteria for involuntary placement set forth in this section, it may order the child to undergo nonresidential treatment as may be appropriate and necessary or it may order no treatment.  If the court determines that the child should not be involuntarily placed in residential care and if the child's family refuses to take the child back into the home, the court shall refer the case to the department for an abuse and neglect investigation.  The department may take the child into custody pursuant to the provisions of the Abuse and Neglect Act [ 32A-4-1 NMSA 1978] or the Family in Need of Services Act [ 32A-3-1 NMSA 1978].   

K.     Every child receiving involuntary residential treatment for a mental disorder or developmental disability under this section shall have a right to periodic review of his involuntary placement at the end of every involuntary placement period. The involuntary placement period shall not exceed sixty days, and any involuntary placement period commencing thereafter shall not exceed six months. At the expiration of an involuntary placement period, the child may continue in residential care only after a new involuntary placement hearing and entry of a new order of involuntary placement for one involuntary placement period.   

L.     If the person seeking the involuntary placement of a child to residential treatment or habilitation believes that the child is likely to cause serious bodily harm to himself or to others during the period that would be required to hold an involuntary placement hearing as provided in this section, the child may be admitted to residential care on an emergency basis. If the child is admitted on an emergency basis, appointment of counsel and other procedures shall then take place as provided elsewhere in this section.   

M.     Nothing set forth in the Children's Mental Health and Developmental Disabilities Act prohibits a child, who has been involuntarily placed and thereafter discharged and released, from subsequently voluntarily consenting to admission under the provisions of that act.