06 LC 29
2138
House
Bill 1145
By:
Representatives Ralston of the
7th
and Mumford of the
95th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating
to juvenile proceedings, so as to change provisions relating to mental health
proceedings; to provide for definitions; to reorganize certain provisions of the
article for clarity; to require a child to be represented by an attorney if the
child is being evaluated for competency; to change certain provisions relating
to the content of an
evaluatoŕs
report; to provide for least restrictive environments, where possible; to
provide certain information to victims; to provide for disposition where a child
will not become competent; to provide for related matters; to repeal conflicting
laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
11 of Title 15 of the Official Code of Georgia Annotated, relating to juvenile
proceedings, is amended by striking Article 4, relating to mental health, and
inserting in lieu thereof the following:
∀ARTICLE
4
15-11-149.
(a)
Study and
report. If, at any time, the evidence
indicates that a child may be suffering from mental retardation or mental
illness, the court may commit the child to an appropriate institution, agency,
or individual for study and report on the
child́s
mental condition.
(b)
Determination of
disability. The juvenile court judge
shall determine whether a child has been determined to be handicapped as defined
in 20 U.S.C. Sections 1401(a)(1) and 1401(a)(15). If there is an Individualized
Education Program (IEP) as defined in 20 U.S.C. Section 1401(a)(20), it shall be
made a part of the dispositional hearing record.
(c)
Commitment.
If it appears from the study and report undertaken pursuant to subsection (a) of
this Code section that the child is committable under the laws of this state as
a mentally retarded or mentally ill child, the court shall order the child
detained and shall proceed within ten days to commit the child to the Division
of Mental Health, Developmental Disabilities, and Addictive Diseases of the
Department of Human Resources.
(d)
Other disposition or
transfer. If the child is found not to be
committable, the court shall proceed to the disposition or transfer of the child
as otherwise provided by Article 1.
(e)
Applicability of Code
Section 15-11-62. The provisions of Code
Section 15-11-62 shall not apply to any child 13 to 15 years of age who is found
to be suffering from mental illness or mental retardation. Any such child shall
not be committed to the Department of Corrections but shall be committed to the
Division of Mental Health, Developmental Disabilities, and Addictive Diseases of
the Department of Human Resources as provided in this Code section.
15-11-150.
(a)
The purpose of this article is to:
(1)
Set forth procedures for a determination of mental incompetency and a
declaration of dependency for any child while the child is determined to be not
mentally competent; and
(2)
Provide a mechanism for the development and implementation of a mental
competency plan for treatment, habilitation, support, or supervision, within
current resources, for any child who is determined to be not mentally competent
to participate in an adjudication or disposition hearing and is adjudicated
dependent upon the court.
(b)
The provisions of this article shall not apply to any case in which the superior
court has jurisdiction pursuant to Code Section 15-11-62.
15-11-151.
As
used in this article, the term:
(1)
'Dependent' means a child who is alleged to have committed a delinquent or
unruly act, is found not mentally competent
to stand
trial by the court, and has charges
pending which have not been dismissed by the court.
(2)
'Judge' means any judge, associate judge, or judge pro tempore of the court
exercising jurisdiction over juvenile matters.
(3)
'Mental competency plan' means an interagency treatment, habilitation, support,
or supervision plan developed at an interagency meeting of state or local agency
representatives, parties, and other interested persons, which is achievable
within the limits of current resources, following a
court́s
finding that a child is not mentally competent and dependent upon the court and
submitted to the court for approval as part of the disposition of the dependency
case. The goal of a mental competency plan is supervision, to bring or restore
the child to mental competency such that he or she is able to participate in
adjudication, a disposition hearing for delinquency or unruliness, or a
proceeding regarding transfer to superior court.
(4)
'Mental competency proceedings' means hearings conducted to determine whether a
child is mentally competent to participate in adjudication, a disposition
hearing, or a transfer proceeding held pursuant to this chapter.
(5)
'Mentally competent' means having sufficient present ability to understand the
nature and objectives of the proceedings, against himself or herself, to
comprehend his or her own situation in relation to the proceedings, and to
render assistance to the defense attorney in the preparation and presentation of
his or her case in all adjudication, disposition, or transfer hearings held
pursuant to this chapter.
The
child́s
age or immaturity may be used as the basis for determining the
child́s
competency.
(6)
'Mentally ill'
means having a disorder of thought or mood which significantly impairs judgment,
behavior, capacity to recognize reality, or ability to cope with the ordinary
demands of life.
(7)
'Mental retardation' means a state of significant subaverage general
intellectual functioning existing concurrently with deficits in adaptive
behavior and originating in the developmental period.
(8)
'Plan manager' means a person who is under the supervision of the court and is
appointed by the court to convene a meeting of all relevant parties for the
purpose of developing a mental competency plan. Said person is responsible for
collecting all previous histories of the child including evaluations,
assessments, and school records.
(7)(9)
'Qualified examiner' means a licensed psychologist or psychiatrist who has
expertise in child development and has received training in forensic evaluation
procedures through formal instruction, professional supervision, or
both.
15-11-152.
(a)
If at any time after the filing of a petition alleging delinquency or unruliness
the court has reason to believe that the child named in the petition may not be
mentally competent, the court on its own motion or on the motion of the attorney
representing the child, any guardian ad litem for the child,
the
child́s
parent or legal guardian, or the attorney
representing the state may stay all delinquency or unruly conduct proceedings
relating to that petition and order an evaluation of the
child́s
mental condition.
Prior to the
administration of any such evaluation, the court shall appoint an attorney to
represent the child if the child is not yet represented by
counsel. All time limits under Article 1
of this chapter for adjudication and disposition of that petition are tolled
during the evaluation, adjudication, and disposition phases of the mental
competency proceeding.
(b)
An evaluation ordered under subsection (a) of this Code section shall be
conducted by a qualified examiner who shall consider whether the child is
mentally competent.
If the
qualified examiner determines that the child is not competent, the qualified
examiner shall complete a full mental health evaluation, study, and report
pursuant to Code Section 15-11-149. If
the basis for questioning the
child́s
mental competency concerns a problem with intellectual functioning, mental
retardation,
mental
illness, maturity, or a learning
disability, the qualified examiner must be a licensed psychologist. The
probation
officers of juvenile court shall provide
the qualified examiner with any law enforcement or court records necessary for
understanding the petition alleging delinquency or unruliness. The attorney for
the child may provide the qualified examiner with any records from any other
available sources that are deemed necessary for the mental competency
evaluation.
(c)
A qualified examiner who conducts an evaluation under subsection (b) of this
Code section shall submit a written report to the court, within 30 days from
receipt of the court order requiring the evaluation, which report shall contain
the following:
(1)
The reason for the evaluation;
(2)
The evaluation procedures used, including any psychometric instruments
administered, any records reviewed, and the identity of any persons
interviewed;
(3)
Any available pertinent background information;
(4)
The results of a mental status exam, including the diagnosis and description of
any psychiatric symptoms, cognitive deficiency, or both;
(5)
A description of abilities and deficits in the following mental competency
functions:
(A)
The ability to understand and appreciate the nature and object of the
proceedings;
(B)
The ability to comprehend his or her situation in relation to the proceedings;
and
(C)
The ability to render assistance to the defense attorney in the preparation of
his or her case;
(6)
An opinion regarding the potential significance of the
child́s
mental competency, strengths, and deficits;
and
(7)
An opinion regarding whether or not the child should be considered mentally
competent;
and
(8)
A specific statement for the basis for a determination of
incompetence.
(d)
If, in the opinion of the qualified examiner, the child should not be considered
mentally competent, the
qualified
examiner shall complete a full mental
health evaluation
and
report
pursuant to
Code Section 15-11-149, and such report
shall also include the following:
(1)
A diagnosis made as to whether there is a substantial probability that the child
will attain mental competency to participate in adjudication, a disposition
hearing, and a transfer hearing in the foreseeable future;
(2)
A
recommendation as to the appropriate treatment setting and whether residential
or nonresidential treatment is required or appropriate;
(3)
Where appropriate, recommendations
Recommendations
for the general level and type of remediation necessary for significant
deficits; and
(3)(4)
Where appropriate, recommendations
Recommendations
for modifications of court procedure which may help compensate for mental
competency weaknesses.
(e)
The court in its discretion may grant the qualified examiner an extension in
filing the evaluation report.
(f)
Copies of the written evaluation report shall be provided by the court to the
attorney representing the child, the attorney representing the state, the
district
attorney
prosecuting
attorney or a member of his or her staff,
and any guardian ad litem for the child no later than five working days after
receipt of the report by the court.
(g)
Upon a showing of good cause by any party or upon the
court́s
own motion, the court may order additional examinations by other qualified
examiners. In no event shall more than one examination be conducted by a
qualified examiner employed by the Department of Human Resources.
(h)
No statement made by a child or information obtained in the course of an
evaluation, hearing, or other proceeding provided for in this Code section,
whether the evaluation is with or without the consent of the child, shall be
admitted into evidence against the child in any future proceeding in the
statés
case-in-chief.
15-11-153.
(a)
A hearing
of
to
determine mental competency shall be
conducted within 60 days after the initial court order for evaluation. At least
ten
dayś
prior written notice of the hearing shall be transmitted to the child, any
parent, guardian, or other legal custodian of the child, any guardian ad litem
for the child, the attorney representing the child, and the attorney
representing the state. Ten
dayś
prior written notice of the hearing shall be served on the
district
attorney,
prosecuting
attorney for all mental competency
proceedings in which the
district
attorney
prosecuting
attorney, or a member of the
district
attorneýs
prosecuting
attorneýs
staff, may participate. The hearing may be continued by the court for good cause
shown.
(b)
The burden of
proving that the child is not mentally competent shall be on the child. The
standard of proof necessary for proving mental incompetency shall be a
preponderance of the evidence.
(c)
At the hearing
of
to
determine mental competency, the attorney
representing the child and the attorney representing the state shall have the
right to:
(1)
Present evidence;
(2)
Call and examine witnesses;
(3)
Cross-examine witnesses; and
(4)
Present arguments.
The
qualified examiner appointed by the court shall be considered the
court́s
witness and shall be subject to cross-examination by both the attorney
representing the child and the attorney representing the state.
(c)(d)
The
court́s
findings of fact shall be based on any evaluations of the
child́s
mental condition conducted by qualified examiners appointed by the court and any
evaluations of the
child́s
mental condition conducted by independent evaluators hired by the parties
and any
additional evidence presented.
The burden
of proving that the child is not mentally competent shall be on the child. The
standard of proof necessary for proving mental incompetency shall be a
preponderance of the evidence. Copies of the
court́s
findings shall be transmitted to the same parties to whom notice of the hearing
was provided within ten days following the issuance of those
findings.
(d)(e)
If the court finds that the child is mentally competent, the proceedings which
have been suspended shall be resumed and the time limits under Article 1 of this
chapter for adjudication and disposition of the petition shall begin to run from
the date of the order finding the child mentally competent.
(e)(f)
If the court finds that the child is not mentally competent, the child
may
shall
be adjudicated dependent by the court.
If the
court determines that a child alleged to have committed an act which is a
misdemeanor if committed by an adult or an unruly act is not mentally competent,
and the child is adjudicated dependent, the court may dismiss the petition
without prejudice. A child who is thus found not to be mentally competent shall
not be subject to discretionary transfer to superior court, adjudication,
disposition, or modification of disposition as long as such mental incompetency
exists. At the time the child is
adjudicated dependent upon the court, the court shall appoint a guardian ad
litem to represent the best interests of the child if a guardian ad litem has
not been appointed previously.
(g)
All court orders determining incompetency shall include specific written
findings by the court as to the nature of the incompetency and whether the child
requires a secure or nonsecure treatment or training environment.
(h)
Any child who is found not to be mentally competent pursuant to this article
shall not be held in a secure placement facility any longer than permitted under
the law for a mentally ill or developmentally disabled child.
(i)
Copies of the
court́s
findings shall be transmitted to the same parties to whom notice of the hearing
was provided within ten days following the issuance of those
findings.
15-11-153.1.
(a)
If the court determines that a child is mentally incompetent, is dependent, is
alleged to have committed an unruly act or an act which would be a misdemeanor
if committed by an adult, the court may dismiss the petition without
prejudice.
(b)
A child who is found to be mentally incompetent shall not be subject to
discretionary transfer to superior court, adjudication, disposition, or
modification of disposition provided that the mental incompetency
exists.
15-11-153.2.
(a)
If at any time following an adjudication of dependency, the court determines
that the child is a resident of a county of this state other than the county in
which the court sits, the court may transfer the proceeding to the county of the
child́s
residence unless the act alleged would be a felony if committed by an
adult.
(b)
When any case is transferred pursuant to this Code section, certified copies of
all legal, social history, health, or mental health records pertaining to the
case on file with the clerk of the court shall accompany the transfer.
Compliance with this Code section shall terminate jurisdiction in the sending
court and initiate jurisdiction in the receiving
court.
(c) If the
child́s
mental competency is restored, jurisdiction of the case may be returned to the
sending court.
15-11-154.
(a)
If at any
time following an adjudication of dependency, the court determines that the
child is a resident of a county of this state other than the county in which the
court sits, the court may transfer the proceeding to the county of the
child́s
residence unless the act alleged would be a felony if committed by an adult.
When any case is transferred pursuant to this Code section, certified copies of
all legal, social history, health, or mental health records pertaining to the
case on file with the clerk of the court shall accompany the transfer.
Compliance with this Code section shall terminate jurisdiction in the sending
court and initiate jurisdiction in the receiving court. If the
child́s
mental competency is restored, jurisdiction of the case may be returned to the
sending court.
(b)
Upon an adjudication of dependency, the court having jurisdiction of the case
shall appoint a plan manager who may be any guardian ad litem for the child or
may be any other person who is under the supervision of the court. The person so
appointed shall submit a mental competency plan to the court within 30 days of
the
court́s
adjudication of dependency. That plan shall include the following:
(1)
The specific deficits the plan is attempting to address, including supervision,
mental competency, or mental competency restoration;
(2)
An outline of the specific provisions for supervision of the child for
protection of the community and the child;
(3)
An outline of a plan designed to provide for treatment, habilitation, support,
or supervision services
in the least
restrictive environment achievable within
the limits of current resources;
and
(4)
If the plan recommends treatment in a secure environment, certification by the
plan manager that all other appropriate community based treatment options have
been exhausted; and
(4)(5)
Identification of all parties, including the child, agency representatives, and
other persons responsible for each element of the plan.
The
court in its discretion may grant the plan manager an extension in filing the
mental competency plan.
(c)(b)(1)
The mental competency plan shall be developed at a meeting of all relevant
parties convened by the plan manager. The plan manager shall request that the
following persons attend the meeting:
(A)
Any parent, guardian, or other legal custodian of the child;
(B)
The attorney representing the child;
(C)
The attorney representing the state;
(D)
Any guardian ad litem of the child;
(E)
Mental health or mental retardation representatives;
(F)
Any probation officer or caseworker who works with the child; and
(G)
A representative from the
child́s
school.
(2)
The plan manager may request that other relevant persons attend the mental
competency plan meeting including but not limited to the following:
(A)
A representative from the division of public health;
(B)
A child protective services worker;
(C)
Representatives of the public and private resources to be utilized in the plan;
and
(D)
Any family member of the child who has shown an interest and involvement in the
child́s
well-being.
(3)
The plan manager shall be responsible for collecting all previous histories of
the child, including but not limited to previous evaluations, assessments, and
school records, and for making such histories available for consideration by the
persons at the meeting.
(4)
Before the disposition hearing and review hearings, the plan manager shall be
responsible for convening a meeting of all parties and representatives of all
agencies.
(5)
The plan manager and other persons responsible for the plan shall identify to
the court any person who should provide testimony at such hearing.
(6)
The plan manager shall be responsible for monitoring the competency plan,
amending such plan as needed, and presenting evidence to the court for the
reapproval of such plan at subsequent review hearings.
15-11-155.
(a)
The court shall hold a disposition hearing for the purpose of approving the
mental competency plan within 30 days after the mental competency plan has been
submitted to the court. Thereafter, the court shall hold a hearing for the
purpose of reviewing the
child́s
condition and approving the mental competency plan every six months during the
child́s
dependency.
Before the
disposition hearing and any review hearings, the plan manager shall be
responsible for convening a meeting of all parties, representatives of all
agencies, and other persons responsible for the plan and for identifying to the
court any persons who should provide testimony at such
hearing.
(b)
The persons required to be notified of the mental competency
disposition
hearing and witnesses identified by the plan manager shall be given at least ten
dayś
prior notice of the disposition hearing and any subsequent hearing to review the
child́s
condition and shall be afforded an opportunity to be heard at any such hearing.
The victim, if any, of the
child́s
delinquent or unruly act shall also be provided with the same ten
dayś
prior notice regarding any such hearing and shall be afforded an opportunity to
be heard and to present a victim impact statement to the court at any such
hearing. The judge shall make a determination regarding sequestration of
witnesses in order to protect the privileges and confidentiality rights of the
child.
(c)
At the disposition hearing, the court shall enter an order incorporating a
mental competency plan as part of the disposition.
At the time of
disposition, a child who has been adjudicated a dependent of the court shall be
placed in an appropriate treatment setting. If a dependent child is housed in a
detention or youth development facility following adjudication of dependency,
such child shall be moved to an appropriate treatment setting.
(d)
If the court determines at any time that the child will not become competent to
proceed, the court may dismiss the delinquency petition. If, at the end of the
two-year period following the date of the order of incompetence, the child has
not attained competence and there is no evidence that the child will attain
competence within a year, the court shall dismiss the delinquency petition. If
appropriate, the court may order that civil commitment proceedings be initiated.
Such proceedings shall be instituted not less than 60 days prior to the
dismissal of the delinquency petition.
If,
upon subsequent review, the court determines that the child may be mentally
competent, the court shall proceed as provided in Code Sections 15-11-152,
15-11-153, and 15-11-154 and enter findings of fact as to the
child́s
mental competency.
(f)(e)
The prosecuting attorney or a member of the prosecuting
attorneýs
staff may seek civil commitment pursuant to Chapters 3 and 4 of Title 37. If,
during the disposition hearing or any subsequent review hearing, the court
determines that the child meets criteria for commitment and that services are
available under the relevant laws for commitment to any agency or agencies for
treatment, habilitation, support, or supervision, the court may commit the child
to an appropriate agency or agencies for services under applicable
law.
(d)(f)
At any time, in the event of a change in circumstances regarding the child, the
court on its own motion or on the motion of the attorney representing the child,
any guardian ad litem for the child, the attorney for the state, or the plan
manager may set a hearing for review of the mental competency plan and any
proposed amendments to that plan. The court may issue an appropriate order
incorporating an amended mental competency plan.
(e)(g)
At the disposition hearing and at every review hearing, the court shall consider
whether the petition alleging delinquency or unruliness should be withdrawn,
maintained, or dismissed, without prejudice, upon grounds other than the
child́s
not being mentally competent. If the court dismisses the petition, the state may
seek to refile petitions alleging felonies if the child is later determined to
be mentally competent. The state may also seek transfer to superior court if the
child is later determined to be mentally competent.
(f)
The district attorney or a member of his or her staff may seek civil commitment
pursuant to Chapters 3 and 4 of Title 37. If, during the disposition hearing or
any subsequent review hearing, the court determines that the child meets
criteria for commitment and that services are available under the relevant Code
provisions for commitment to any agency or agencies for treatment, habilitation,
support, or supervision, the court may commit the child to an appropriate agency
or agencies for services under applicable
law.
(g)(h)(1)
If the court determines that a child alleged to have committed an act which is a
felony if committed by an adult is not mentally competent and the child is
adjudicated as a dependent, the court shall retain jurisdiction of the child for
up to two years after the date of the order of adjudication. The order may be
extended for additional two-year periods as provided in subsection (a) of Code
Section 15-11-58.1.
(2)
If the court determines that a child alleged to have committed an act which is a
misdemeanor if committed by an adult or an unruly act is not mentally competent
and the child is adjudicated as a dependent, the court shall retain jurisdiction
of the child for up to 120 days following the disposition order incorporating
the mental competency plan. The order may not be extended by the court.
(h)(i)
If the court finds that a child is not mentally competent to stand trial, any
party may file at any time a motion for a rehearing on the issue of the
child́s
mental incompetency. The court shall grant such motion upon a showing by the
moving party that there are reasonable grounds to believe that the child is now
mentally competent. If this motion is granted, the court shall proceed as
provided in Code Sections 15-11-152, 15-11-153,
15-11-153.1,
15-11-153.2, 15-11-154, and this Code
section and shall enter findings of fact as to the
child́s
mental competency.
(i)(j)
If a child is under a mental competency plan when the child reaches the age of
18, the plan manager shall make a referral to appropriate adult
services.∀
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.