March 9, 2011, Introduced by Senator 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, 18r, and
18s 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, based on
age-appropriate norms, lacks a reasonable degree of rational and
factual understanding of the proceeding or is unable to do 1 or
more of the following:
(i) Consult with and assist his or her attorney in preparing
his or her defense in a meaningful manner.
(ii) Sufficiently understand the charges against him or her.
(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 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) "Mental health code" means the mental health code, 1974 PA
258, MCL 330.1001 to 330.2106.
(m) (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.
(n) "Qualified forensic mental health examiner" means 1 of the
following who performs forensic mental health examinations for the
purposes of sections 1062 to 1074 of the mental health code:
(i) A psychiatrist or psychologist who possesses experience or
training in the following:
(A) Forensic evaluation procedures for juveniles.
(B) Evaluation or treatment of children and adolescents with
emotional disturbance, mental illness, or developmental
disabilities.
(C) Clinical understanding of child and adolescent
development.
(D) Familiarity with competency standards in this state.
(ii) Beginning 18 months after the effective date of the
amendatory act that added section 1072 of the mental health code, a
licensed master's social worker or licensed professional counselor
or limited license psychologist who meets the certification
requirements of the program established by the department under
section 1072 of the mental health code.
(o) "Qualified restoration provider" means an individual who
the court determines, as a result of the opinion provided by the
qualified forensic mental health examiner, has the skills and
training necessary to provide restoration services. The court shall
take measures to avoid any conflict of interest among agencies or
individuals who may provide evaluation and restoration.
(p) "Restoration" means the process by which education or
treatment of a juvenile results in that juvenile becoming competent
to proceed.
(q) "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.
(r) (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 forensic mental
health examiner. The qualified forensic mental health examiner shall
provide the court with an opinion as to whether the juvenile is
competent to proceed. The court has the final determination as to who
is a qualified forensic mental health examiner.
(2) This section does not prohibit any party from retaining the
party's own qualified forensic mental health 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 forensic mental health 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) Except as prohibited by federal law, 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) The requirement to provide records or information under
subsection (2) does not limit, waive, or abrogate the work product
doctrine or the attorney-client privilege, and release of records
and information under subsection (2) is subject to the work product
doctrine and the attorney-client privilege.
(4) All information required under subsections (1) and (2)
must be provided to the qualified forensic mental health 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.
(5) A qualified forensic mental health 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 the 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.
(6) The qualified forensic mental health examiner shall
provide the court with an opinion about the juvenile's competency
to proceed. If the qualified forensic mental health examiner
determines that the juvenile is incompetent to proceed, the
qualified forensic mental health examiner shall 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.
(7) The court in its discretion may, for good cause, grant the
qualified forensic mental health examiner a 30-day extension in
filing the competency evaluation report.
(8) 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 and 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 with prejudice the charges against the juvenile and may
determine custody of the juvenile.
(3) The qualified forensic mental health examiner appointed by
the court to determine the juvenile's mental condition shall be
allowed reasonable fees for services rendered.
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 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 responsibility for 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.
(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.
Sec. 18s. (1) If the juvenile is incompetent to proceed but
the court finds that the juvenile may be restored to competency in
the foreseeable future, 1 of the following applies:
(a) If the offense is a traffic offense or a misdemeanor other
than a serious misdemeanor, the matter shall be dismissed.
(b) If the offense is a serious misdemeanor, the court may
dismiss the matter or suspend the proceedings against the juvenile.
(c) If the offense is a felony, the proceedings against the
juvenile shall be further suspended.
(2) If proceedings are suspended because the juvenile is
incompetent to proceed but the court finds that the juvenile may be
restored to competency in the foreseeable future, all of the
following apply:
(a) Before issuing a restoration order, the court shall hold a
hearing to determine the least restrictive alternative setting for
completion of the restoration.
(b) The court may issue a restoration order that is valid for
60 days from the date of the initial finding of incompetency or
until 1 of the following occurs, whichever occurs first:
(i) The qualified restoration provider submits a report that
the juvenile has regained competency or that there is no
substantial probability that the juvenile will regain competency
within the period of the order.
(ii) The charges are dismissed.
(iii) The juvenile reaches 18 years of age.
(c) Following issuance of the restoration order, the qualified
restoration provider shall submit a report to the court and the
qualified forensic mental health examiner that includes the
information required under section 18p of this chapter. The report
shall be submitted to the court and the qualified forensic mental
health examiner every 30 days, or sooner if and at the time either
of the following occurs:
(i) The qualified restoration provider determines that the
juvenile is no longer incompetent to proceed.
(ii) The qualified restoration provider determines that there
is no substantial probability that the juvenile will be competent
to proceed within the period of the order.
(3) Not later than 14 days before the expiration of the
initial 60-day order, the qualified restoration provider may
recommend to the court and the qualified forensic mental health
examiner that the restoration order be renewed by the court for
another 60 days, if there is a substantial probability that the
juvenile will not be incompetent to proceed within the period of
that renewed restoration order. The restoration order and any
renewed restoration order shall not exceed a total of 120 days.
(4) Except as otherwise provided in this section, upon receipt
of a report 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 do both of the following:
(a) Determine custody of the juvenile as follows:
(i) The court may direct that civil commitment proceedings be
initiated, as allowed under section 498d of the mental health code.
(ii) If the court determines that commitment proceedings are
inappropriate, the juvenile shall be released to the juvenile's
parent, legal guardian, or legal custodian under conditions
considered appropriate to the court.
(b) Dismiss the charges against the juvenile.
(5) Upon receipt of a report that there is a substantial
probability that the juvenile is unable to be restored due to
serious emotional disturbance, the court may in its discretion,
except as provided under the youth rehabilitation services act,
1974 PA 150, MCL 803.301 to 803.309, order that mental health
services be provided to the juvenile by the department of community
health, a community mental health services program, the department
of human services, a county department of human services, or
another appropriate mental health services provider for a period
not to exceed 60 days. The court shall retain jurisdiction over the
juvenile throughout the duration of the order. The entity ordered
to provide services under this subsection shall continue to provide
services for the duration of the period of treatment ordered by the
court.
(6) Not later than 14 days before the expiration of an order
for treatment under this subsection or subsection (5), the entity
providing mental health services under that order shall submit a
report to the court and the qualified forensic mental health
examiner regarding the juvenile. Upon receipt of the report, the
court shall review the report and do either of the following:
(a) Renew the order for another period of treatment not to
exceed 60 days.
(b) Determine custody of the juvenile and dismiss the charges
against the juvenile.