Bill Text: MI HB5174 | 2009-2010 | 95th Legislature | Introduced

---

Bill Title: Juveniles; criminal procedure; juvenile competency and culpability; clarify. Amends sec. 1, ch. XIIA of 1939 PA 288 (MCL 712A.1) & adds secs. 18n, 18o, 18p, 18q & 18r to ch. XIIA.

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2009-07-15 - Printed Bill Filed 07/15/2009 [HB5174 Detail]

Download: Michigan-2009-HB5174-Introduced.html

---

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 5174

 

July 14, 2009, Introduced by Reps. Segal and Schuitmaker and referred to the Committee on Judiciary.

 

     A bill to amend 1939 PA 288, entitled

 

"Probate code of 1939,"

 

by amending section 1 of chapter XIIA (MCL 712A.1), as amended by

 

2001 PA 211, and by adding sections 18n, 18o, 18p, 18q, and 18r to

 

chapter XIIA.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

                             CHAPTER XIIA

 

     Sec. 1. (1) As used in this chapter:

 

     (a) "Civil infraction" means that term as defined in section

 

113 of the revised judicature act of 1961, 1961 PA 236, MCL

 

600.113.

 

     (b) "Competency evaluation" means a court-ordered examination

 

of a juvenile directed to developing information relevant to a

 

determination of his or her competency to proceed at a particular

 

stage of a court proceeding involving a juvenile who is the subject

 

of a delinquency petition.

 

     (c) "Competency hearing" means a hearing to determine whether

 

a juvenile is competent to proceed.

 

     (d) (b) "County juvenile agency" means that term as defined in

 

section 2 of the county juvenile agency act, 1998 PA 518, MCL

 

45.622.

 

     (e) (c) "Court" means the family division of circuit court.

 

     (f) (d) "Foreign protection order" means that term as defined

 

in section 2950h of the revised judicature act of 1961, 1961 PA

 

236, MCL 600.2950h.

 

     (g) "Incompetent to proceed" means that a juvenile lacks a

 

reasonable degree of rational as well as factual understanding of

 

the proceeding, is unable to understand the nature or object of the

 

proceeding, and is unable to assist in his or her defense in a

 

meaningful way. A determination of juvenile incompetency must be

 

made in light of adolescent norms. Elements of juvenile

 

incompetency include, but are not limited to, mental or physical

 

disorder, mental retardation or developmental disability, cognitive

 

or intellectual deficit, immaturity, or other functional deficit.

 

     (h) "Juvenile" means a person who is less than 17 years of age

 

who is the subject of a delinquency petition.

 

     (i) "Least restrictive environment" means a supervised

 

community placement, preferably a placement with the juvenile's

 

parent, guardian, relative, or a facility or conditions of

 

treatment that is a residential or institutional placement only

 

utilized as a last resort based on the best interest of the

 

juvenile or for reasons of public safety.

 

     (j) "Licensed child caring institution" means that a child

 

caring institution as defined and licensed under 1973 PA 116, MCL

 

722.111 to 722.128.

 

     (k) (e) "MCI" means the Michigan children's institute created

 

and established by 1935 PA 220, MCL 400.201 to 400.214.

 

     (l) (f) "Personal protection order" means a personal protection

 

order issued under section 2950 or 2950a of the revised judicature

 

act of 1961, 1961 PA 236, MCL 600.2950 and 600.2950a, and includes

 

a valid foreign protection order.

 

     (m) "Qualified examiner" means a mental health professional as

 

defined in section 100b of the mental health code, 1978 PA 258, MCL

 

330.1100b, who the court determines has the skills and training

 

necessary to conduct the competency evaluation. The skills

 

necessary to conduct the competency evaluation shall include, but

 

are not limited to, knowledge, skill, training, and experience in

 

all of the following:

 

     (i) The evaluation or treatment of children and adolescents

 

with serious emotional disturbance, mental illness, or

 

developmental disabilities.

 

     (ii) Clinical understanding of child development and adolescent

 

development.

 

     (iii) Forensic evaluation procedures for juveniles through

 

formal instruction, professional supervision, or both.

 

     (iv) Familiarity with competency standards in this state.

 

     (n) "Restoration" means that a juvenile is no longer

 

incompetent to proceed.

 

     (o) "Serious misdemeanor" means that term as defined in section

 

61 of the William Van Regenmorter crime victim's rights act, 1985 PA

 

87, MCL 780.811.

 

     (p) (g) "Valid foreign protection order" means a foreign

 

protection order that satisfies the conditions for validity

 

provided in section 2950i of the revised judicature act of 1961,

 

1961 PA 236, MCL 600.2950i.

 

     (2) Except as otherwise provided, proceedings under this

 

chapter are not criminal proceedings.

 

     (3) This chapter shall be liberally construed so that each

 

juvenile coming within the court's jurisdiction receives the care,

 

guidance, and control, preferably in his or her own home, conducive

 

to the juvenile's welfare and the best interest of the state. If a

 

juvenile is removed from the control of his or her parents, the

 

juvenile shall be placed in care as nearly as possible equivalent

 

to the care that should have been given to the juvenile by his or

 

her parents.

 

     Sec. 18n. (1) A juvenile 10 years of age or older is presumed

 

competent to proceed unless the issue of competency is raised by a

 

party. A juvenile less than 10 years of age is presumed incompetent

 

to proceed.

 

     (2) The court may order, or a juvenile, the juvenile's

 

attorney, or the prosecuting attorney may request, a competency

 

evaluation to determine whether the juvenile is incompetent to

 

proceed if the juvenile is being charged as a juvenile in the court.

 

The issue of the juvenile's competency may be raised by the court

 

before which the proceedings are pending or being held, or by motion

 

of a party, at any time during the proceeding.

 

     (3) At the time an issue of the juvenile's competency is

 

raised, the delinquency proceeding shall temporarily cease until

 

determination is made on the competence of the juvenile according to

 

this act.

 

     Sec. 18o. (1) A competency evaluation ordered under section 18n

 

of this chapter shall be conducted by a qualified examiner. The

 

qualified examiner shall make a finding as to whether the juvenile is

 

competent to proceed. The court has the final determination as to who

 

is a qualified examiner.

 

     (2) This section does not prohibit any party from retaining the

 

party's own qualified examiner to conduct additional evaluations at

 

the party's own expense.

 

     (3) The competency evaluation shall be conducted in the least

 

restrictive environment. There is a presumption in favor of

 

conducting a competency evaluation while the juvenile remains in the

 

custody of a parent or legal guardian, unless removal from the home

 

is necessary for the best interests of the juvenile, for reasons of

 

public safety, or because the parent or guardian has refused to

 

cooperate in the competency evaluation process.

 

     Sec. 18p. (1) The court shall order the prosecuting attorney

 

to provide to the juvenile's attorney all information related to

 

competency and shall order the prosecuting attorney and juvenile's

 

attorney to submit to the qualified examiner any information

 

considered relevant to the competency evaluation, including, but

 

not limited to:

 

     (a) The names and addresses of all attorneys involved.

 

     (b) Information about the alleged offense.

 

     (c) Any information about the juvenile's background in the

 

prosecuting attorney's possession.

 

     (2) The court shall require the juvenile's attorney to provide

 

any available records of the juvenile or other information relevant

 

to the evaluation, including, but not limited to, any of the

 

following:

 

     (a) Psychiatric records.

 

     (b) School records.

 

     (c) Medical records.

 

     (d) Child protective services records.

 

     (3) All information required under subsections (1) and (2)

 

must be provided to the qualified examiner within 10 days after the

 

court issues the order for the competency evaluation. If possible,

 

the information required under this section shall be received

 

before the juvenile's competency evaluation or the commencement of

 

the competency evaluation in an outpatient setting.

 

     (4) A qualified examiner who conducts a competency evaluation

 

shall submit a written report to the court not later than 30 days

 

from receipt of the court order requiring the competency

 

evaluation. The report shall contain, but not be limited to, the

 

following:

 

     (a) A description of the nature, content, and extent of the

 

examination, including, but not limited to, all of the following:

 

     (i) A description of assessment procedures, techniques, and

 

tests used.

 

     (ii) Available medical, educational, and court records

 

reviewed.

 

     (iii) Social, clinical, developmental, and legal history as

 

available.

 

     (b) A clinical assessment that includes, but is not limited

 

to, the following:

 

     (i) A mental status examination.

 

     (ii) The diagnosis and functional impact of mental illness,

 

developmental disability, or cognitive deficiency. If the juvenile

 

is taking medication, the impact of the medication on the

 

juvenile's mental state and behavior.

 

     (iii) An assessment of the juvenile's intelligence.

 

     (iv) The juvenile's age, maturity level, developmental stage,

 

and decision-making abilities.

 

     (v) Whether the juvenile has any other factor that affects

 

competence.

 

     (c) A description of abilities and deficits in the following

 

mental competency functions related to the juvenile's competence to

 

proceed:

 

     (i) The ability to factually as well as rationally understand

 

and appreciate the nature and object of the proceedings, including,

 

but not limited to, all of the following:

 

     (A) An ability to understand the role of the participants in

 

the court process, including, the roles of judge, the juvenile's

 

attorney, the prosecuting attorney, the probation officer,

 

witnesses, and the jury, and to understand the adversarial nature

 

of the process.

 

     (B) An ability to appreciate the charges and understand the

 

seriousness of the charges.

 

     (C) An ability to understand and realistically appraise the

 

likely outcomes.

 

     (D) An ability to extend thinking into the future.

 

     (ii) The ability to render meaningful assistance to the

 

juvenile's attorney in the preparation of the case, including, but

 

not limited to, all of the following:

 

     (A) An ability to disclose to an attorney a reasonably

 

coherent description of facts and events pertaining to the charge,

 

as perceived by the juvenile.

 

     (B) An ability to consider the impact of his or her action on

 

others.

 

     (C) Verbal articulation abilities or the ability to express

 

himself or herself in a reasonable and coherent manner.

 

     (D) Logical decision-making abilities, particularly

 

multifactored problem-solving or the ability to take several

 

factors into consideration in making a decision.

 

     (E) An ability to reason about available options by weighing

 

the consequences, including weighing pleas, waivers, and

 

strategies.

 

     (F) An ability to display appropriate courtroom behavior.

 

     (5) The qualified examiner shall provide the court with an

 

opinion about the juvenile's competency to proceed. If the

 

qualified examiner determines that the juvenile is incompetent to

 

proceed, the examiner will comment on the nature of mental disease

 

or defect, the prognosis, and the services needed to restore the

 

juvenile to competency, if possible, within a projected time frame.

 

The opinion shall include an assessment of whether the juvenile is

 

a threat to self or others and requires emergency intervention.

 

     (6) The court in its discretion may, for good cause, grant the

 

qualified examiner a 30-day extension in filing the competency

 

evaluation report.

 

     (7) Copies of the written report shall be provided by the court

 

to the juvenile's attorney, the prosecuting attorney, and any

 

guardian ad litem for the juvenile not later than 5 working days

 

after receipt of the report by the court.

 

     Sec. 18q. (1) Not later than 30 days after a report is filed

 

under section 18p of this chapter, the court shall hold a hearing to

 

determine if a juvenile is competent to proceed. At the hearing, the

 

parties may introduce other evidence regarding the juvenile's mental

 

condition or may submit the matter by written stipulation based on

 

the filed report.

 

     (2) Upon a finding by the court that a juvenile is incompetent

 

to proceed or a finding that there is a substantial probability that

 

the juvenile will remain incompetent to proceed for the foreseeable

 

future or within the period of the restoration order, the court shall

 

dismiss the charges against the juvenile and may determine custody of

 

the juvenile.

 

     (3) The qualified examiner appointed by the court to determine

 

the juvenile's mental condition shall be allowed reasonable fees for

 

services rendered. The court shall determine who shall pay the cost

 

of the competency evaluation ordered by the court.

 

     Sec. 18r. (1) The constitutional protections against self-

 

incrimination apply to all competency evaluations.

 

     (2) Any evidence or statement obtained during a competency

 

evaluation is not admissible in any proceeding to determine the

 

juvenile's guilt or innocence unless the juvenile presents evidence

 

that is intended to rebut the presumption of criminal

 

responsibility.

 

     (3) A statement that a juvenile makes during a competency

 

evaluation or evidence resulting from the statement concerning any

 

other event or transaction is not admissible in any proceeding to

 

determine the juvenile's guilt or innocence of any other charges that

 

are based on those events or transactions.

 

     (4) A statement that the juvenile makes during a competency

 

evaluation may not be used for any purpose without the written

 

consent of the juvenile or the juvenile's guardian. The juvenile or

 

the juvenile's guardian must have an opportunity to consult with

 

his or her attorney before giving consent.

 

     (5) After the case proceeds to adjudication or the juvenile is

 

found to be unable to regain competence, the court shall order all

 

of the reports that are submitted according to sections 18n to 18q

 

of this chapter to be sealed. The court may order that the reports

 

be opened only as follows:

 

     (a) For further competency or criminal responsibility

 

evaluations.

 

     (b) For statistical analysis.

 

     (c) If the records are considered to be necessary to assist in

 

mental health treatment ordered according to the mental health

 

code, 1974 PA 258, MCL 330.1001 to 330.2106.

 

     (d) For data gathering.

 

     (e) For scientific study or other legitimate research.

 

     (6) If the court orders reports to be open for the purposes of

 

statistical analysis, data gathering, or scientific study according

 

to subsection (5), the reports shall remain confidential.

 

     (7) Any statement that a juvenile makes during a competency

 

evaluation, or any evidence resulting from that statement, is not

 

subject to disclosure.