SENATE BILL No. 246

 

 

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.