GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2001
H	1
HOUSE BILL 138

 
 
Short Title:	Juvenile Capacity to Proceed.	()	
Sponsors:	Representatives Baddour;  Alexander and Insko.	
Referred to:	Judiciary II.	
February 15, 2001

	A BILL TO BE ENTITLED
AN ACT to establish procedures in the juvenile code for juveniles who lack the capacity to proceed.

The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 7B‑2401 is repealed.
SECTION 2.  Chapter 7B of the General Statutes is amended by adding a new Article to read:
"Article 23A.
"Incapacity to Proceed.
"§ 7B-2310.  No proceedings when juvenile lacks capacity to proceed; exceptions.
(a)	No juvenile may be transferred to superior court, adjudicated delinquent, or given a disposition for a delinquent act when the juvenile is unable to understand the nature and object of the proceedings, to comprehend the juvenile's own situation in reference to the proceedings, or to assist in the juvenile's defense in a rational or reasonable manner. This condition is hereinafter referred to as "incapacity to proceed."  Age alone is not a sufficient basis for a finding of incapacity to proceed.
(b)	The question of the capacity of the juvenile to proceed may be raised at any time by the court or on motion by the prosecutor or the juvenile. The motion shall  set out the specific facts that lead the moving party to question the juvenile's capacity to proceed.
(c)	Subsection (a) of this section does not prevent the court from going forward with any motions that can be handled by counsel without the assistance of the juvenile.
"§ 7B-2311.  Examination of juvenile; report.
(a)	At any time after the question of the capacity of the juvenile to proceed has been raised, if the court determines that reasonable grounds exist for an examination to determine the juvenile's capacity to proceed, the court may order the juvenile be examined as follows:
(1)	The court may appoint one or more impartial medical experts, including forensic evaluators approved under rules of the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, to examine the juvenile and return a written report describing findings and any professional opinion relevant to the juvenile's capacity to proceed.
(2)	After either an examination pursuant to subdivision (1) of this subsection or a finding by the court that an examination of the juvenile in a State mental health facility is more appropriate, the court may order the juvenile to an appropriate State mental health facility for observation and treatment for the period, not to exceed 60 days, necessary to determine the juvenile's capacity to proceed. Unless the court orders otherwise, the sheriff shall transport the juvenile to the facility, and, when notified that the evaluation has been completed, transport the juvenile to the place specified by the court. The director of the facility shall return a written report describing findings and any professional opinion relevant to the juvenile's capacity to proceed.
(b)	If the mental health expert determines that the juvenile does not have the capacity to proceed, the report shall describe the cause of the incapacity and include the expert's assessment of the following:
(1)	The likelihood that the juvenile will gain the capacity to proceed.
(2)	Whether the juvenile needs treatment and, if so, the most appropriate form and place of treatment in this State, based on the juvenile's needs and any potential threat to public safety.
(c)	The written report shall be returned to the clerk of superior court in a sealed envelope addressed to the attention of a presiding judge, with a cover statement to the clerk of the fact of the examination of the juvenile and any conclusion as to whether the juvenile has or lacks the capacity to proceed. The clerk shall forward a copy of the full report to the juvenile's attorney and, if the question of the juvenile's capacity to proceed is raised at any time, the clerk shall forward a copy of the full report to the prosecutor. The clerk shall seal the report that is kept in the clerk's file, and its contents shall not be revealed except as directed by the court.
"§ 7B-2312. Capacity hearing; orders.
(a)	When the capacity of the juvenile to proceed is questioned, the court shall hold a hearing to determine the juvenile's capacity to proceed. If an examination is ordered pursuant to G.S. 7B-2311, the hearing shall be held after the examination. The clerk shall give reasonable notice of the hearing to the prosecutor, the juvenile, and the juvenile's parent, guardian, or custodian. The burden of proving that the juvenile does not have the capacity to proceed shall be on the party alleging that the juvenile does not have the capacity to proceed. The standard of proof necessary for proving that the juvenile does not have the capacity to proceed is a preponderance of the evidence. 
(b)	Any report required pursuant to G.S. 7B-2311 is admissible at the hearing. At the request of either party, the court may call any expert appointed to testify at the hearing. Any expert appointed by the court shall be considered the court's witness and shall be subject to cross-examination by both the juvenile's attorney and the prosecutor.
(c)	If the court finds that the juvenile is capable of proceeding, the court shall make written findings of capacity to proceed.
(d)	If the court finds by a preponderance of the evidence that the juvenile does not have the capacity to proceed, after an additional hearing the court determines to be necessary, the court shall make findings as to:
(1)	The likelihood that the juvenile will gain the capacity to proceed.
(2)	Whether the juvenile needs further evaluation or treatment.
(3)	Whether there are reasonable grounds to believe the juvenile meets the criteria for involuntary commitment under Part 7 of Article 5 of Chapter 122C of the General Statutes.
The court shall either dismiss the petition, with or without prejudice, or continue the case for no more than six months, as the court finds to be in the best interest of the juvenile and the State.
(e)	If the court continues the case, after determining that the juvenile lacks the capacity to proceed, the court may:
(1)	Place the juvenile in the custody of a parent, guardian, custodian, or other suitable person or agency that agrees to supervise the juvenile.
(2)	Set appropriate conditions necessary to protect the juvenile, to ensure the juvenile's return to court, and to protect the public.
(3)	Conduct or schedule a hearing pursuant to G.S. 7B-2502 and enter appropriate orders under that section.
Until the case is dismissed or the juvenile has the capacity to proceed, the court shall review the case at intervals of no longer than six months.
(f)	At any stage of the proceeding, the court may direct the chief court counselor to evaluate whether a report of possible neglect or dependency should be made to the director of the department of social services pursuant to G.S. 7B-301. 
"§ 7B-2313. Referral of incapable juvenile for civil commitment proceedings.
(a)	If the court finds reasonable grounds to believe that the juvenile meets the criteria for involuntary commitment under Part 7 of Article 5 of Chapter 122C of the General Statutes, the court shall make findings of fact and issue a custody order in the same manner, upon the same grounds and with the same effect as an order issued by a clerk or magistrate pursuant to G.S. 122C‑261. Proceedings thereafter are in accordance with Part 7 of Article 5 of Chapter 122C of the General Statutes. If the juvenile is alleged to have committed a violent offense, including an offense involving assault with a deadly weapon, the court's custody order shall require a law enforcement officer to take the juvenile directly to a 24‑hour facility as described in G.S. 122C‑252; and the order shall indicate that the juvenile was alleged to be delinquent for committing an act that would be a violent crime if committed by an adult and that the juvenile was found incapable of proceeding.
(b)	Evidence used at the hearing with regard to the juvenile's capacity to proceed is admissible in the involuntary civil commitment proceedings.
(c)	When a juvenile is found incapable of proceeding and is in a hospital or other in-patient facility as a result of an involuntary commitment proceeding, the commitment order shall:
(1)	Require the hospital or facility to notify the chief court counselor if the juvenile is to be released; and
(2)	Specify the person or agency to which the juvenile may be released.
(d)	A juvenile committed under this Article shall not be placed in a situation where the juvenile will come in contact with adults committed for any purpose.
"§ 7B-2314. Dismissal of petition.
When the court has determined that a juvenile lacks the capacity to proceed, upon motion of a party, the court shall dismiss the petition with prejudice:
(1)	When the juvenile has been substantially deprived of the juvenile's liberty for a period of time equal to or in excess of the maximum permissible period of commitment pursuant to G.S. 7B-2513; or
(2)	In the case of an alleged misdemeanor offense, the earliest of:
a.	When it appears to the satisfaction of the court that the juvenile will not gain the capacity to proceed within five years of the date the petition was filed;
b.	The expiration of a period of five years or more from the date the petition was filed; or
c.	The juvenile's reaching the age of 18 years; or
(3)	In the case of an alleged felony offense, the earliest of:
a.	When it appears to the satisfaction of the court that the juvenile will not gain the capacity to proceed within 10 years of the date the petition was filed;
b.	The expiration of a period of 10 years or more from the date the petition was filed; or
c.	If the juvenile was 12 years of age or younger when the offense allegedly occurred, the juvenile's reaching the age of maximum commitment specified in G.S. 7B-2513 for the category of offense alleged.
"§ 7B-2315. Dismissal with leave.
(a)	When a court has determined that a juvenile lacks the capacity to proceed and the petition has not been dismissed, a prosecutor may enter a dismissal with leave. Dismissal with leave under this section results in removal of the case from the docket of the court, but all processes outstanding retain their validity, and all necessary actions in the case may be taken.
(b)	The prosecutor may enter the dismissal with leave orally in open court or by filing the dismissal in writing with the clerk. If the dismissal is entered orally, the clerk shall note the nature of the dismissal in the case records. The prosecutor shall give written notice of the dismissal to the juvenile's attorney, the chief court counselor, and the juvenile's parent, guardian, or custodian, unless the dismissal is entered orally and in the presence of those persons.
(c)	Upon the juvenile's becoming capable of proceeding, or when the prosecutor believes the juvenile may soon become capable of proceeding, the prosecutor may reinstitute the proceedings by filing written notice with the clerk and give written notice to the juvenile, the juvenile's attorney of record, the chief court counselor, and the juvenile's parent, guardian, or custodian.
(d)	A dismissal with leave entered under this section is no longer in effect if the court later dismisses the petition.
(e)	Nothing in this section limits the court's duty or authority to dismiss the petition pursuant to G.S. 7B-2314 on motion of a party or on the court's own motion.
"§ 7B-2316. Privilege against self-incrimination; records.
(a)	The privilege against self-incrimination applies to any examination that is ordered by the court pursuant to this Article.
(b)	Any statement made by the juvenile during an examination or any evidence resulting from that statement concerning any other event or transaction is not admissible at any adjudication or criminal proceeding against the juvenile for other allegations of delinquency or criminal charges that are based on those events or transactions.
(c)	No statement made by the juvenile or any part of an evaluation obtained pursuant to this Article shall be used for any purpose, other than a determination of capacity pursuant to this Article, without the written consent of the juvenile or the juvenile's parent or guardian or a court order.
(d)	No statement made by the juvenile during an examination conducted pursuant to this Article or any evidence resulting from that statement is subject to disclosure pursuant to Subchapter III of this Chapter.
"§ 7B-2317. Reporting with regard to juveniles incapable of proceeding.
The chief court counselor for the district in which the delinquency proceeding is pending shall keep a list of juveniles who have been determined to be incapable of proceeding. At least semiannually, the chief court counselor shall submit this list to the prosecutor and to the chief district court judge."
SECTION 3.  G.S. 7B‑2502 reads as rewritten:
"§ 7B‑2502.  Evaluation and treatment of undisciplined and delinquent  juveniles and juveniles found incapable of proceeding in delinquency cases.
(a)	In any case in which a juvenile has been adjudicated delinquent or undisciplined or in which a juvenile who is alleged to be delinquent has been found incapable of proceeding,  the court may order that the juvenile be examined by a physician, psychiatrist, psychologist, or other qualified expert as may be needed for the court to determine the needs of the juvenile. In the case of a juvenile adjudicated delinquent for committing an offense that involves the possession, use, sale, or delivery of alcohol or a controlled substance, the court shall require the juvenile to be tested for the use of controlled substances or alcohol within 30 days of the adjudication. In the case of any juvenile adjudicated delinquent, the court may, if it deems it necessary, require the juvenile to be tested for the use of controlled substances or alcohol. The results of these initial tests conducted pursuant to this subsection shall be used for evaluation and treatment purposes only.
(b)	Upon completion of the examination, the court shall conduct a hearing to determine whether the juvenile is in need of medical, surgical, psychiatric, psychological, or other evaluation or treatment and who should pay the cost of the evaluation or treatment. The county manager, or any other person who is designated by the chair of the board of county commissioners, of the county of the juvenile's residence shall be notified of the hearing, and allowed to be heard. If the court finds the juvenile to be in need of medical, surgical, psychiatric, psychological, or other evaluation or treatment, the court shall permit the parent, guardian, custodian, or other responsible persons to arrange for evaluation or treatment. If the parent, guardian, or custodian declines or is unable to make necessary arrangements, the court may order the needed evaluation or treatment, surgery, or care, and the court may order the parent to pay the cost of the care pursuant to Article 27 of this Chapter. If the court finds the parent is unable to pay the cost of evaluation or treatment, the court shall order the county to arrange for evaluation or treatment of the juvenile and to pay for the cost of the evaluation or treatment. The county department of social services shall recommend the facility that will provide the juvenile with evaluation or treatment.
(c)	If the court believes, or if there is evidence presented to the effect that the juvenile is mentally ill or is developmentally disabled, the court shall refer the juvenile to the area mental health, developmental disabilities, and substance abuse services director for appropriate action. A juvenile shall not be committed directly to a State hospital or mental retardation center; and orders purporting to commit a juvenile directly to a State hospital or mental retardation center except for an examination to determine capacity to proceed shall be void and of no effect. The area mental health, developmental disabilities, and substance abuse director shall be responsible for arranging an interdisciplinary evaluation of the juvenile and mobilizing resources to meet the juvenile's needs. If institutionalization is determined to be the best service for the juvenile, admission shall be with the voluntary consent of the parent, guardian, or custodian. If the parent, guardian, or custodian refuses to consent to a mental hospital or retardation center admission after such institutionalization is recommended by the area mental health, developmental disabilities, and substance abuse director, the signature and consent of the court may be substituted for that purpose. In all cases in which a regional mental hospital refuses admission to a juvenile referred for admission by the court and an area mental health, developmental disabilities, and substance abuse director or discharges a juvenile previously admitted on court referral prior to completion of the juvenile's treatment, the hospital shall submit to the court a written report setting out the reasons for denial of admission or discharge and setting out the juvenile's diagnosis, indications of mental illness, indications of need for treatment, and a statement as to the location of any facility known to have a treatment program for the juvenile in question."
SECTION 4.  This act becomes effective October 1, 2001.