State v. SERGIO B.

• Decision Date: 20 May 2002
• Docket Number: No. 22,252.,22,252.
• Citation: 48 P.3d 764,2002 NMCA 70,132 N.M. 375
• Court: Court of Appeals of New Mexico
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. SERGIO B., Child-Appellant.

48 P.3d 764

132 N.M. 375

2002 NMCA 70

STATE of New Mexico, Plaintiff-Appellee, v. SERGIO B., Child-Appellant.

No. 22,252.

Court of Appeals of New Mexico.

May 20, 2002.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} Child was committed to the custody of the Children, Youth and Families Department (CYFD) for two years. After learning that the Juvenile Parole Board (JPB) was considering Child's application for parole, the State filed a motion with the children's court seeking to extend Child's commitment for an additional year. The children's court extended Child's commitment, then "stayed" its own order and placed Child under protective supervision for six months. Child argues that the children's court lacked jurisdiction in the matter because it had notice that JPB was considering early release. In the alternative, Child argues that the State was required to provide him with notice of the specific bases for extending commitment before any hearing on the matter. Child also argues that there was insufficient evidence to justify extending his commitment. The State, in addition to disputing each of these arguments, argues that this case is moot because Child's term of protective supervision has ended.

{2} We hold that the issues raised in this appeal should be decided because they are capable of repetition, yet evading review. Reaching the merits of Child's arguments, we hold that the children's court had jurisdiction to hear the State's motion because JPB had not notified the court of Child's prospective parole. Nonetheless, we hold that there was insufficient evidence to justify extending Child's commitment. We therefore reverse the judgment of the children's court. Because we reverse on that basis, we need not decide whether the State was required to provide Child notice of the specific grounds it was alleging for extending custody.

FACTS

{3} In August 1998, the State filed a delinquency petition alleging that Child committed criminal sexual penetration in the first degree (child under 13) and criminal sexual contact of a minor in the third degree (child under 13). Child pleaded guilty to two counts of criminal sexual contact of a minor in the third degree, and the children's court entered a judgment placing Child on probation for two years. After participating in a residential counseling program for a few months, Child skipped school and failed to return to the program. As a result, the children's court revoked Child's probation and ordered him committed to CYFD custody for two years, beginning March 30, 1999. The Court reserved its right to extend Child's commitment if necessary to protect the Child's welfare or public safety, as permitted by the Children's Code. See NMSA 1978, § 32A-2-23(D) (1995). In its order of judgment, the children's court instructed CYFD to inform the court of any pending release date.

{4} In response to that instruction, on January 4, 2001, an attorney for CYFD sent the children's court a letter, indicating that JPB had placed Child's case on its February agenda and that CYFD was recommending that Child be released early and allowed to live with his mother in Las Vegas, Nevada. The State, surprised and concerned by CYFD's position, contacted the children's court and indicated that it intended to oppose Child's release. The children's court informed the State that it would have to file a motion requesting a recommitment hearing, because the court did not plan to initiate such hearings sua sponte. The State filed its motion on January 19, 2001. Child objected, arguing that the children's court had no jurisdiction to consider recommitment while JPB was considering parole. The children's court held a hearing on January 30 and decided that it still had jurisdiction, but continued the hearing, because CYFD had not provided the State with Child's case file.

{5} JPB scheduled an interview with Child for February 13. The State sent JPB a letter opposing Child's release, and then informed officials at CYFD that they would be "disobeying the court's order if they went ahead and paroled" Child. CYFD then told Child he could not attend the interview with JPB. As a result, Child attended a hearing at children's court, rather than the scheduled interview with JPB, on February 13. Child's attorney requested that Child be allowed to interview with JPB. The children's court indicated that Child could do so, "as long as they don't release him." The children's court again continued the hearing after learning that CYFD was still refusing to cooperate with the State.

{6} Child never appeared before JPB. The children's court held its third and final recommitment hearing on March 27, three days before Child's term of commitment was set to expire. By this time the State, after finally obtaining Child's case file from CYFD, had changed its position. It now informed the children's court that it was not seeking to keep Child in CYFD custody. Instead, the State asked the children's court to release Child, but place him under protective supervision. The State presented one witness, a social worker from the treatment facility where Child resided during his commitment. The social worker testified that Child had successfully completed his therapy program, was considered a low risk for reoffending, and was not a danger to the community. She also testified that he had earned his GED, had developed job skills, and would have the support of family members in Nevada. She indicated that twelve members of his treatment team had unanimously recommended early release.

{7} The children's court expressed doubt as to its authority to order protective supervision. The court also noted that the State had presented no evidence to justify extending CYFD custody. Nonetheless, the children's court found that it would be in Child's best interest to be under protective supervision during his transition out of CYFD custody. The court ordered Child committed to CYFD custody for an additional year, but then stayed that order and placed the child under protective supervision for six months. {8} Child appealed the order to this Court. Before this case was fully briefed, the period of protective supervision ended.

DISCUSSION

I. Mootness

{9} The State argues that we should dismiss Child's appeal because there is no longer an active controversy in this case, now that Child's term of protective supervision has ended. As a general rule, appellate courts should not decide moot cases. Gunaji v. Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008 (citing Mowrer v. Rusk, 95 N.M. 48, 51, 618 P.2d 886, 889 (1980)). An appeal is moot when no actual controversy exists, and an appellate ruling will not grant the appellant any actual relief. Id. ¶ 9, 618 P.2d 886.

{10} Appellate courts review criminal convictions even after a defendant's term of incarceration ends because of the continuing collateral consequences of a conviction, such as mandatory sentence increases for subsequent offenses, limitations on eligibility for certain types of employment, and voting restrictions. See State v. Pierce, 110 N.M. 76, 87, 792 P.2d 408, 419 (1990) (reversing child abuse conviction that had merged with homicide conviction, even though the defendant was serving concurrent sentences, because of the collateral consequences of the second conviction). Child argues that his appeal is not moot because similar collateral consequences flow from the order recommitting him to CYFD custody. He notes that if he is ever convicted of a felony as an adult, the order of recommitment could appear in a pre-sentence report. See NMSA 1978, § 32A-2-18(A) (1996). He also argues that he "bears the stigma" of an unjustified order. In federal court, these consequences would be insufficient to justify appellate review. See Spencer v. Kemna, 523 U.S. 1, 9, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (declining to review appeals from decisions revoking probation after the defendants' term of incarceration had ended because the defendants could not identify definitive collateral consequences that flowed from the revocation decision). Our courts, however, have established their own mootness standards. See Gunaji, 2001-NMSC-028, ¶ 11, 130 N.M. 734, 31 P.3d 1008 (rejecting federal mootness standards). We need not decide whether the collateral consequences of the recommitment order are sufficient to create an actual controversy, because we agree with Child that, under New Mexico law, the issues raised in this case are "capable of repetition[,] yet evad[ing] review." See id. ¶ 10 (addressing claims of unfair election procedures after the winning candidate's term of office had expired because the issues were capable of repetition, but would evade review).

{11} The State argues that the doctrine does not apply because this case involves unusual circumstances that are unlikely to reoccur. While it may be unusual for the State and CYFD to have such diametrically opposed views on the disposition of a case, there is always potential for disagreement, and we anticipate that there will be other cases where the jurisdiction of the children's court and JPB overlap. The children's court only has jurisdiction to consider extending a child's custody at the end of a child's commitment period. See State v. Adam M., 2000-NMCA-049, ¶ 10, 129 N.M. 146, 2 P.3d 883. It is likely that children seeking parole will do so toward the end of their commitment terms, after they have gone through treatment. Thus, we think this issue is capable of repetition. Child also argues that the children's court exceeded its authority when it placed Child under protective supervision and that there was insufficient evidence to support the court's judgment. These issues are also capable of repetition. Many...