hb1145_SCSFA_to_HB_1145

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06 HB1145/SCSFA/2

SENATE SUBSTITUTE TO HB 1145

AS PASSED SENATE

A BILL TO BE ENTITLED
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 disposition of certain cases in juvenile court; 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 a short title; to change certain provisions relating to disposition for certain delinquent acts; to change provisions relating to a juvenile court judgés authority in setting a commitment disposition for certain delinquency cases; to provide for the manner in which the Department of Juvenile Justice may discharge certain juveniles; to amend Chapter 4A of Title 49 of the Official Code of Georgia Annotated, relating to the Department of Juvenile Justice, so as to change certain provisions relating to commitment of delinquent or unruly children and their discharge from commitment; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

PART I
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 psychiatrist or 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

(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.

(h) 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.

(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;

(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.; and

(H) Any family member of the child who has shown an interest and involvement in the child́s well-being.

(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; 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 persons enumerated in paragraph (1) of subsection (b) of this Code section 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, presenting to the court amendments to 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 at the time of disposition, such child shall be moved to an appropriate treatment setting within five business days.

(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 substantial 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."

PART II

SECTION 2.

This part shall be known and may be cited as the "Amýs Law."

SECTION 3.

Said chapter is further amended by striking Code Section 15-11-70, relating to duration and termination of orders of disposition for delinquent or unruly children and extensions of such orders, and inserting in lieu thereof the following:

"15-11-70.

(a) Except as otherwise provided by law in subsection (b) of this Code section, an order of disposition committing a delinquent or unruly child to the Department of Juvenile Justice continues in force for two years or until the child is sooner discharged by the Department of Juvenile Justice. The court which made the order may extend its duration for an additional two years subject to like discharge, if:

(1) A hearing is held upon motion of the Department of Juvenile Justice prior to the expiration of the order;

(2) Reasonable notice of the factual basis of the motion and of the hearing and an opportunity to be heard are given to the child and the parent, guardian, or other custodian; and

(3) The court finds that the extension is necessary for the treatment or rehabilitation of the child.

(b) If the court commits a delinquent child to the Department of Juvenile Justice for a delinquent act which if done by an adult would be the crime of murder, then the court’s commitment may continue until the child’s twenty-first birthday. The court shall determine whether any or all of the child́s commitment should include an order for restrictive custody by making specific written findings of fact using the elements set forth in paragraphs (1) through (5) of subsection (c) of Code Section 15-11-63. Any child committed to the Department of Juvenile Justice under the provisions of this subsection shall not be released from confinement or discharged from the custody of the Department of Juvenile Justice unless a motion for early release is granted by the court. The court which made the order of commitment may shorten the duration of its order if:

(1) A hearing is held prior to the expiration of the order upon motion of a party or on the court́s own motion;

(2) Reasonable notice of the factual basis of the motion and of the hearing and an opportunity to be heard are given to the parties affected; and

(3) The court finds that the discharge is necessary to accomplish the purposes of the original order and for the treatment or rehabilitation of the child.

(b)(c) Except as otherwise provided by law, in subsection (b) of this Code section, any other order of disposition in a proceeding involving delinquency or unruliness, except an order involving the appointment of a guardian of the person or property of a child, continues in force for not more than two years. The court may sooner terminate its order or extend its duration for further periods. An order of extension may be made if:

(1) A hearing is held prior to the expiration of the order upon motion of a party or on the court́s own motion;

(2) Reasonable notice of the factual basis of the motion and of the hearing and opportunity to be heard are given to the parties affected;

(3) The court finds that the extension is necessary to accomplish the purposes of the order extended; and

(4) The extension does not exceed two years from the expiration of the prior order.

(c)(d) The court may terminate an order of disposition of a child adjudicated as delinquent or unruly or an extension of such a disposition order prior to its expiration, on or without an application of a party, if it appears to the court that the purposes of the order have been accomplished.

(d)(e) Unless otherwise provided by law, when a child who has been adjudicated as delinquent or unruly reaches 21 years of age all orders affecting him or her then in force terminate and he or she is discharged from further obligation or control."

SECTION 4.

Chapter 4A of Title 49 of the Official Code of Georgia Annotated, relating to the Department of Juvenile Justice, is amended by striking subsection (e) of Code Section 49-4A-8, relating to commitment of delinquent or unruly children and their discharge from commitment, and inserting in lieu thereof the following:

"(e) Except as provided by subsection (e.1) of this Code section and subsection (b) of Code Section 15-11-70, when a delinquent or unruly child has been committed to the department for detention and a diagnostic study for the purpose of determining the most satisfactory plan for the child́s care and treatment has been completed, the department may:

(1) Permit the child liberty under supervision and upon such conditions as the department may believe conducive to acceptable behavior;

(2) Order the child́s confinement under such conditions as the department may believe best designed to serve the child́s welfare and as may be in the best interest of the public;

(3) Order reconfinement or renewed release as often as conditions indicate to be desirable;

(4) Revoke or modify any order of the department affecting the child, except an order of final discharge, as often as conditions indicate to be desirable; or

(5) Discharge the child from control of the department pursuant to subsection (a) of Code Section 15-11-70 when it is satisfied that such discharge will best serve the child́s welfare and the protection of the public."

SECTION 5.

All laws and parts of laws in conflict with this Act are repealed.