2019 New Mexico Statutes
Chapter 32A - Children's Code
Article 2 - Delinquency
Section 32A-2-24 - Probation revocation; disposition.

A. A child on probation incident to an adjudication as a delinquent child who violates a term of the probation may be proceeded against in a probation revocation proceeding. A proceeding to revoke probation shall be begun by filing in the original proceeding a petition styled as a "petition to revoke probation". Petitions to revoke probation shall be screened, reviewed and prepared in the same manner and shall contain the same information as petitions alleging delinquency. Procedures of the Delinquency Act regarding taking into custody and detention shall apply. The petition shall state the terms of probation alleged to have been violated and the factual basis for these allegations.

B. The standard of proof in probation revocation proceedings shall be evidence beyond a reasonable doubt and the hearings shall be before the court without a jury. In all other respects, proceedings to revoke probation shall be governed by the procedures, rights and duties applicable to proceedings on a delinquency petition. If a child is found to have violated a term of the child's probation, the court may extend the period of probation or make any other judgment or disposition that would have been appropriate in the original disposition of the case.

History: 1978 Comp., § 32A-2-24, enacted by Laws 1993, ch. 77, § 53; 2009, ch. 239, § 25.

The 2009 amendment, effective July 1, 2009, in Subsection B, after "violated a term of", deleted "his" and add "the child's".

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 32-1-43 NMSA 1978 have been included in the annotations to this section.

Rule 10-226 NMRA (now 10-243 NMRA) governs the time limits within which the children's court must hear a petition to revoke probation. State v. Katrina G., 2007-NMCA-048, 141 N.M. 501, 157 P.3d 66.

Probation revocation procedures not mandated. — This section does not mandate that in order for the children's court to order detention for violation of probation, the court must follow probation revocation procedures in all instances. 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.

Valid probation order. — Since the order placing the child on probation was void, the situation was as if no probation order had been entered, and thus the order revoking probation was without legal effect despite the fact that the court attempted therein to supply the requisite finding that the child was in need of rehabilitation, absence of which had rendered the initial probation order void. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948.

Governed by procedure applicable to delinquency petition. — Generally, proceedings to revoke probation are governed by the procedure applicable to proceedings on a delinquency petition. State v. Doe, 1977-NMCA-023, 90 N.M. 249, 561 P.2d 948.

Child to be informed of violated condition of probation. — Trial court violated child's right to due process by revoking his probation, absent competent evidence that respondent had been informed of the condition of probation which he allegedly violated. State v. Doe, 1986-NMCA-019, 104 N.M. 107, 717 P.2d 83.

Juveniles entitled to confront witnesses during revocation proceedings. — A child whose probation is sought to be revoked shall be entitled to all the rights a child alleged to be delinquent is entitled to under the law, and since juveniles have the right to confront witnesses during delinquency proceedings, they must be accorded that right in probation revocation proceedings. State v. Trevor M., 2015-NMCA-009.

Analysis of right to confrontation. — The right to confrontation provided by this section is the same right guaranteed by the Sixth Amendment to the United States Constitution, and consequently, the analysis of an alleged violation of this right is the same, and as in the analysis of the Sixth Amendment right, this right is not absolute, and deviation from live, face-to-face testimony may be permitted when an exception is necessary to further an important public policy, such exception being supported by a particularized showing of necessity by the district court. State v. Trevor M., 2015-NMCA-009.

Child's right to confront witnesses violated. — Where state's witness, who could not attend the proceedings on the day of the hearing, testified by telephone over the child's objections, and where the district court failed to make any findings on the necessity of telephonic testimony, the child's right to confront witnesses against him was violated. State v. Trevor M., 2015-NMCA-009.

New trial required only if violation of right is harmful. — A violation of the right to confrontation alone does not require a new trial, but only when a violation of the confrontation right is harmful to the defendant does the violation require a new trial, and the burden is on the state to show the violation was harmless. State v. Trevor M., 2015-NMCA-009.

State failed to meet its burden. — Where state failed to address whether any violation of the child's right to confrontation was harmless, the state failed to meet its burden, and therefore the child was entitled to a new probation revocation proceeding. State v. Trevor M., 2015-NMCA-009.

Self-executing provision in a probation order, requiring automatic confinement in the juvenile detention center merely upon a reported absence from school, was invalid because it would circumvent the procedural requirements, but was separable from the remaining portion of the probation order. State v. Henry Don S., 1990-NMCA-029, 109 N.M. 777, 790 P.2d 1058, cert. denied, 109 N.M. 704, 780 P.2d 1271.

Determination based on verified facts. — The determination of whether a juvenile violated the conditions of his probation must be based on verified facts. State v. Doe, 1986-NMCA-019, 104 N.M. 107, 717 P.2d 83.

Proof of a probation violation. — To establish a violation of a probation agreement, the obligation is on the state to prove willful conduct on the part of the probationer. State v. Trevor M., 2015-NMCA-009.

Insufficient evidence to support willful conduct. — Where child was discharged from an out-of-home placement, such placement being a condition of probation, and where all of the testimony by the juvenile probation officer and the social worker was improperly admitted in a juvenile probation revocation proceeding, the evidence was insufficient to support a finding of willful conduct on the part of the child. State v. Trevor M., 2015-NMCA-009.

Revocation of juvenile parole for adult offenses. — The order of the children's court revoking the defendant's probation based on offenses committed by the defendant after he became an adult for which he was convicted and fined did not violate his constitutional rights guaranteeing protection against double jeopardy; since with respect to adult offenders any punishment resulting from revocation of a defendant's probation is punishment that relates to the person's original offense, an individual's subsequent prosecution for the same conduct in a new proceeding does not violate double jeopardy principles. In re Lucio F.T., 1994-NMCA-144, 119 N.M. 76, 888 P.2d 958.

Applicability of Rules of Evidence. — The Rules of Evidence apply to the adjudicatory phase of juvenile probation revocation proceedings; however, they do not apply to the dispositional phase. State v. Erickson K., 2002-NMCA-058, 132 N.M. 258, 46 P.3d 1258, cert. quashed, 132 N.M. 732, 55 P.3d 428.

Improper procedures. — If a special master lacks authority to hear a probation revocation petition, the court is without jurisdiction at the hearing on the petition. State v. Doe, 93 N.M. 621, 603 P.2d 731 (Ct. App. 1979).

When the district judge disposes of the case more than 30 days after the petition is filed, the petition should be dismissed with prejudice. State v. Doe, 1979-NMCA-126, 93 N.M. 621, 603 P.2d 731.

Revocation improper. — Revocation of the juvenile's probation was improper pursuant to this section where the juvenile did not willfully violate his probation agreement when he left the state because all evidence showed that the mother was responsible for making the decision to leave the state; further, the drug test result should not have been considered by the trial court because they did not meet the admissibility requirements. In re Bruno R., 2003-NMCA-057,133 N.M. 566, 66 P.3d 339, cert. denied, 133 N.M. 593, 66 P.3d 962.

Extrajudicial admissions. — Without proof of drug testing, the admission of the juvenile could not stand as the sole evidence of the violation because extrajudicial admissions or confessions were not sufficient as evidence that a child committed delinquent acts absent other corroborating evidence. In re Bruno R., 2003-NMCA-057, 133 N.M. 566, 66 P.3d 339, cert. denied, 133 N.M. 593, 66 P.3d 962.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Right and sufficiency of allocation in probation revocation proceeding, 70 A.L.R.5th 533.