2019 New Mexico Statutes
Chapter 32A - Children's Code
Article 2 - Delinquency
Section 32A-2-26 - Sealing of records.
A. On motion by or on behalf of a person who has been the subject of a delinquency petition or on the court's own motion, the court shall vacate its findings, orders and judgments on the petition and order the legal and social files and records of the court, probation services, and any other agency in the case sealed. If requested in the motion, the court shall also order law enforcement files and records sealed. An order sealing records and files shall be entered if the court finds that:
(1) two years have elapsed since the final release of the person from legal custody and supervision or two years have elapsed since the entry of any other judgment not involving legal custody or supervision;
(2) the person has not, within the two years immediately prior to filing the motion, been convicted of a felony or of a misdemeanor involving moral turpitude or been found delinquent by a court and no proceeding is pending seeking such a conviction or finding; and
(3) the person is eighteen years of age or older or the court finds that good cause exists to seal the records prior to the child's eighteenth birthday.
B. Reasonable notice of the motion shall be given to:
(1) the children's court attorney;
(2) the authority granting the release;
(3) the law enforcement officer, department and central depository having custody of the law enforcement files and records; and
(4) any other agency having custody of records or files subject to the sealing order.
C. Upon the entry of the sealing order, the proceedings in the case shall be treated as if they never occurred and all index references shall be deleted. The court, law enforcement officers and departments and agencies shall reply, and the person may reply, to an inquiry that no record exists with respect to the person. Copies of the sealing order shall be sent to each agency or official named in the order.
D. Inspection of the files and records or the release of information in the records included in the sealing order may thereafter be permitted by the court only:
(1) upon motion by the person who is the subject of the records and only to those persons named in the motion; and
(2) in its discretion, in an individual case, to any clinic, hospital or agency that has the person under care or treatment or to other persons engaged in fact finding or research.
E. Any finding of delinquency or need of services or conviction of a crime subsequent to the sealing order may at the court's discretion be used by the court as a basis to set aside the sealing order.
F. A court may set aside a sealing order for the juvenile disposition of a youthful offender and any evidence given in a hearing in court for a youthful offender for the purpose of considering the setting of bail or other conditions of release of a person charged with a felony whether charged as an adult or a juvenile.
G. A child who has been the subject of a petition filed pursuant to the provisions of the Delinquency Act shall be notified in writing by the department when the child reaches the age of eighteen or at the expiration of legal custody and supervision, whichever occurs later, that the department's records have been sealed and that the court, the children's court attorney, the child's attorney and the referring law enforcement agency have been notified that the child's records are subject to sealing.
H. The department shall seal the child's files and records when the child reaches the age of eighteen or at the expiration of the disposition, whichever occurs later. The department shall notify the children's court attorney, the child's attorney and the referring law enforcement agency that the child's records are subject to sealing.
I. Youthful offender records sealed pursuant to Subsection H of this section may be unsealed by the court along with any evidence given in a hearing in court for a youthful offender for the purpose of considering the setting of bail or other conditions of release of a person charged with a felony, whether charged as an adult or juvenile.
J. A child who is determined by the court not to be a delinquent offender shall have the child's files and records in the instant proceeding automatically sealed by the court upon motion by the children's court attorney at the conclusion of the proceedings.
K. After sealing, the department may store and use a person's records for research and reporting purposes, subject to the confidentiality provisions of Section 32A-2-32 NMSA 1978 and other applicable federal and state laws.
History: 1978 Comp., § 32A-2-26, enacted by Laws 1993, ch. 77, § 55; 2003, ch. 225, § 13; 2009, ch. 239, § 26; 2016, ch. 9, § 2.
ANNOTATIONSCross references. — For right to inspect public records, see 14-2-1 NMSA 1978.
For Arrest Record Information Act, seeChapter 29, Article 10 NMSA 1978.
The 2016 amendment, effective May 18, 2016, allowed a court to set aside a sealing order for the juvenile disposition of a youthful offender, or unseal an already sealed record, and for any evidence given in a hearing in court for a youthful offender, for the purpose of considering the setting of bail or other conditions of release of a person charged with a felony; added a new Subsection F and redesignated former Subsections F and G as Subsections G and H, respectively; and added a new Subsection I and redesignated the succeeding subsections accordingly.
The 2009 amendment, effective July 1, 2009, added Paragraph (3) of Subsection A; in Paragraph (3) of Subsection B, after "files and records", deleted "if those records are included in the motion"; in Subsection F, at the beginning of the sentence, after "A", changed "person" to "child"; deleted former Subsection G, which provided that the files of a person who is not the subject of a delinquency petition or who has not been determined to be a delinquent offender shall be sealed; deleted Subsection H, which provided that the files of a person who has not received new allegations of delinquency shall be sealed; and added Subsections G through I.
The 2003 amendment, effective July 1, 2003, substituted "person" for "individual" throughout the section and added Subsections G and H.
Decisions under prior law. — In light of the similarity of the provisions, annotations decided under former Section 32-1-45 NMSA 1978 have been included in the annotations to this section.
Record sealing discretionary when child commits felony following two "clean" years. — When an individual has been the subject of a petition filed under the Children's Code, has two subsequent "clean" years and then commits a series of felonies, the provisions of Subsection A of this section, relating to the sealing of children's courts records, are not mandatory but are discretionary, pursuant to Subsection E. State v. Doe, 1981-NMCA-097, 96 N.M. 648, 633 P.2d 1246.
Law reviews. — For comment, "The Freedom of the Press vs. The Confidentiality Provisions in the New Mexico Children's Code," see 4 N.M.L. Rev. 119 (1973).
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).
For article, "Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus," see 10 N.M.L. Rev. 413 (1980).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Juvenile Courts and Delinquent and Dependent Children § 115 et seq.
