7.10​Evaluating a Juvenile’s Competency³⁹

The conviction of a defendant while he or she is incompetent to stand trial violates due process. US Const, Am V;US Const, Am XIV; Const 1963, art 1, § 17; People v Newton, 179 Mich App 484, 487 (1989). “[T]he right not to be tried while incompetent is as fundamental in juvenile proceedings as it is in the criminal context.” In re Carey, 241 Mich App 222, 231 (2000).⁴⁰ “The protection afforded by the Due Process Clause requires that a court sua sponte hold a hearing regarding competency when any evidence raises a bona fide doubt about the competency of the defendant.” Id. at 227-228.

Effective March 28, 2013, 2012 PA 540 added MCL 330.2060—MCL 330.2074, governing competency determinations in juvenile⁴¹ delinquency proceedings, to the portion of the Mental Health Code governing competency determinations in criminal proceedings, MCL 330.2020 et seq. Also effective March 28, 2013, 2012 PA 541 added virtually identical provisions to the Juvenile Code, MCL 712A.1 et seq. See MCL 712A.1(1) and MCL 712A.18n—MCL 712A.18s.⁴² This section discusses these corresponding provisions.

A.​suPremption of Competency or Incompetency

“[A] criminal defendant’s mental condition at the time of trial must be such as to assure that he [or she] understands the charges against him [or her] and can knowingly assist in his [or her] defense.” People v McSwain, 259 Mich App 654, 692 (2003).

MCL 330.2062(1) and MCL 712A.18n(1) provide:

“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.”

B.​Raising the Issue of Competency⁴³

MCL 330.2062(2) and MCL 712A.18n(2) provide that if a juvenile is “the subject of a delinquency petition in the court” or is charged with a status offense under MCL 712A.2(a)(2)-(4),⁴⁴ the court, on its own motion or at the request of the juvenile, the juvenile’s attorney, or the prosecuting attorney, may order “a competency evaluation to determine whether the juvenile is incompetent to proceed[.]”

“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.”⁴⁵ MCL 330.2062(2); MCL 712A.18n(2).

Once the issue of the juvenile’s competency is raised, the delinquency proceeding must “temporarily cease until determination is made on the competence of the juvenile[.]” MCL 330.2062(3); MCL 712A.18n(3).

A defendant is entitled to a competency hearing when evidence demonstrates a bona fide doubt as to his or her competency. People v Harris (Karen), 185 Mich App 100, 102 (1990). In fact, the trial court is obligated to raise the issue of the defendant’s competence when “facts are brought to its attention which raise a ‘bona fide doubt’ as to the defendant’s competence.” Id. at 102 (trial court erred when it failed to have the defendant’s competence reevaluated before trial where the defendant had a long history of severe mental illness and, at the outset of trial, stated that she was incoherent and felt incompetent to stand trial and requested a court order for hospitalization).

The trial court is not required to accept without question an attorney’s representations concerning the competence of his or her client, although counsel’s expression of doubt in that regard is a factor that should be considered. Drope v Missouri, 420 US 162, 177 n 13 (1975). “[E]vidence of a defendant’s irrational behavior, his [or her] demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but . . . even one of th[o]se factors standing alone may, in some circumstances, be sufficient.” Id. at 180. The trial court’s ruling “as to the existence of a ‘bona fide doubt’” is reviewed for an abuse of discretion. Harris (Karen), 185 Mich App at 102.

C.​Competency Evaluation⁴⁶

1.​Qualified Juvenile Forensic Mental Health Examiner (“Examiner”)⁴⁷

“A competency evaluation ordered under [MCL 712A.18n] shall be conducted by a qualified juvenile forensic mental health examiner[, who] . . . shall provide the court with an opinion as to whether the juvenile is competent to proceed.” MCL 712A.18o(1); see also MCL 330.2064(1). “The court has the final determination of an expert witness serving as a qualified juvenile forensic mental health examiner.” MCL 330.2064(1); MCL 712A.18o(1).

A party is not prohibited “from retaining the party’s own qualified juvenile forensic mental health examiner to conduct additional evaluations at the party’s own expense.” MCL 712A.18o(2); see also MCL 330.2064(2).

2.​Least Restrictive Environment

A competency evaluation must be conducted in the “least restrictive environment,” MCL 330.2064(3); MCL 712A.18o(3), which is “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,” MCL 330.2060b(1); MCL 712A.1(1)(j).

“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.” MCL 330.2064(3); MCL 712A.18o(3).

3.​Records and Information Relevant to the Competency Evaluation

MCL 330.2066(1)-(4) and MCL 712A.18p(1)-(4) provide:

“(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 . . . 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 (1) or (2) does not limit, waive, or abrogate the work product doctrine or the attorney-client privilege, and release of records and information under subsection (1) or (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 . . . 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.”

4.​Written Competency Evaluation Report

The examiner must submit a written report to the court within 30 days⁴⁸ after receipt of a court order requiring a competency evaluation. MCL 330.2066(5); MCL 712A.18p(5). The report must contain specific descriptions and assessments as set out in MCL 330.2066(5)(a)-(c); MCL 712A.18p(5)(a)-(c).

The examiner must “provide the court with an opinion about the juvenile’s competency to proceed.” MCL 330.2066(6); MCL 712A.18p(6). If the examiner concludes that the juvenile is incompetent to proceed, the examiner must “comment on the nature of any psychiatric or psychological disorder or cognitive impairment, the prognosis, and the services needed and expertise required to restore the juvenile to competency, if possible, within a projected time frame.” MCL 330.2066(6); see also MCL 712A.18p(6) (does not require report to include the “expertise required to restore the juvenile to competency[]”).

Within five days after receiving the report, the court must provide copies of the report to the juvenile’s attorney, the prosecuting attorney, and the guardian ad litem, if any. MCL 330.2066(8); MCL 712A.18p(8).

D.​mpetency HCoearing⁴⁹

A competency hearing must be held within 30 days after the examiner’s report is filed. MCL 330.2068(1); MCL 712A.18q(1).

“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.” MCL 330.2068(1); MCL 712A.18q(1).

E.​Determination of Incompetency and Substantial Probability That Juvenile Will Remain Incompetent⁵⁰

If the court finds that the juvenile “is incompetent to proceed^[51] and . . . that there is a substantial probability that the juvenile will remain incompetent to proceed for the foreseeable future or within the period of [a] restoration^[52] order,” the charges must be dismissed with prejudice, and the court “may determine custody of the juvenile.” MCL 330.2068(2); MCL 712A.18q(2).⁵³

Except as otherwise provided in MCL 330.2074 or MCL 712A.18s, if the court receives “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 [a] restoration order,” the court must dismiss the charges and determine custody as follows:

•​The court may direct that civil commitment proceedings be initiated as allowed under MCL 330.1498d.

•​If the court determines that commitment proceedings are inappropriate, the juvenile must be released to his or her parent, guardian, or custodian “under conditions considered appropriate to the court.”

MCL 330.2074(4); MCL 712A.18s(4).

F.​Determination of Incompetency With Possibility of Restoration to Competency⁵⁴

1.​Dismissal or Suspension of Matter

If the juvenile is determined to be incompetent to proceed,⁵⁵ “but the court finds that the juvenile may be restored^[56] to competency in the foreseeable future,” the matter must be dismissed or suspended, depending on the type of offense charged:

•​A matter involving a traffic offense must be dismissed.

•​A matter involving a misdemeanor, other than a serious misdemeanor,⁵⁷ must be dismissed.

•​A matter involving a serious misdemeanor must be either dismissed or suspended.

•​A matter involving a felony must be further suspended.

MCL 330.2074(1)(a)-(c); MCL 712A.18s(1)(a)-(c).

2.​Restoration of Juvenile in Suspended Proceedings

“‘Restoration’” is “the process by which education or treatment of a juvenile results in that juvenile becoming competent to proceed.” MCL 330.2060c(1); MCL 712A.1(1)(s).

The following requirements apply if proceedings are suspended because the court finds that a juvenile who is incompetent to proceed may be restored to competency in the foreseeable future:

•​Before issuing a restoration order, the court must hold a hearing to determine the least restrictive environment⁵⁸ for completion of the restoration.

•​The court may issue a restoration order that is valid for 60 days from the date of the initial finding of incompetency or until any of the following occurs, whichever occurs first:

•​the examiner, based on information provided by the qualified restoration provider,⁵⁹ 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;

•​the charges are dismissed; or

•​the juvenile reaches 18 years of age.

•​Following issuance of the restoration order, the qualified restoration provider must submit a report to the court and the examiner that includes the information required under MCL 330.2066 and MCL 712A.18p (records and information relevant to the competency evaluation).⁶⁰ The report must be submitted to the court and the examiner every 30 days, or sooner if, and at the time, the qualified restoration provider determines:

•​that the juvenile is no longer incompetent to proceed, or

•​that there is no substantial probability that the juvenile will be competent to proceed within the period of the order.

MCL 330.2074(2); MCL 712A.18s(2).

“Not later than 14 days before the expiration of the initial 60-day [restoration] order, the qualified restoration provider may recommend to the court and the . . . 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.” MCL 330.2074(3); MCL 712A.18s(3).

Except as otherwise provided in MCL 330.2074 or MCL 712A.18s, if the court receives “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 [a] restoration order,” the court must dismiss the charges and determine custody as follows:

•​The court may direct that civil commitment proceedings be initiated as allowed under MCL 330.1498d.

•​If the court determines that commitment proceedings are inappropriate, the juvenile must be released to his or her parent, guardian, or custodian “under conditions considered appropriate to the court.”⁶¹

MCL 330.2074(4); MCL 712A.18s(4).

G.​Substantial Probability of Inability to Be Restored Due to Serious Emotional Disturbance⁶²

1.​Order for Mental Health Services

MCL 330.2074(5) and MCL 712A.18s(5) provide:

“Upon receipt of a report from [an examiner] 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, . . . MCL 803.301 to [MCL] 803.309, order that mental health services be provided to the juvenile by the [Department of Community Health], subject to the availability of inpatient care, 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.”⁶³

2.​Report of Service Provider

At least 14 days before the expiration of an order for mental health services or a renewed order for an additional period of treatment as provided in MCL 330.2074(6)(a); MCL 712A.18s(6)(a),⁶⁴ the entity providing the services must submit a report to the court and the examiner regarding the juvenile. MCL 330.2074(6); MCL 712A.18s(6).

3.​newReal of Order for Mental Health Services or Dismissal

Upon receipt of the report from the treatment provider, the court must review the report and either:

•​renew the order for another period of treatment not to exceed 60 days, and not to exceed a combined total of 120 days for the order for treatment and renewed order; or

•​determine custody of the juvenile and dismiss the charges against the juvenile.

MCL 330.2074(6)(a)-(b); MCL 712A.18s(6)(a)-(b).

H.​Subsequent Use of Evidence and Statements Obtained During Competency Evaluation

1.​Statements

“The constitutional protections against self-incrimination apply to all competency evaluations.” MCL 330.2070(1); MCL 712A.18r(1).

Statements made by a juvenile during a competency evaluation:

•​are inadmissible in any proceeding to determine the juvenile’s responsibility, MCL 330.2070(2); MCL 712A.18r(2);

•​are inadmissible in any proceeding to determine the juvenile’s responsibility for charges based on any other events or transactions, MCL 330.2070(3); MCL 712A.18r(3);

•​may not be used for any purpose other than assessment of competency, unless the juvenile or his or her guardian, following an opportunity to consult with his or her attorney, provide written consent, MCL 330.2070(4); MCL 712A.18r(4); and

•​are not subject to disclosure, MCL 330.2070(7); MCL 712A.18r(7).

2.​Evidence

Any evidence obtained during a competency evaluation is not admissible in any proceeding to determine the juvenile’s responsibility. MCL 330.2070(2); MCL 712A.18r(2).

Any evidence resulting from a juvenile’s statement, made during a competency evaluation, that concerns 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 that event or transaction. MCL 330.2070(3); MCL 712A.18r(3).

Any evidence resulting from a statement made by a juvenile during a competency evaluation is not subject to disclosure. MCL 330.2070(7); MCL 712A.18r(7).

I.​aliSeng of Reports

“After the case proceeds to adjudication or the juvenile is found to be unable to retain competence,” the court must order the sealing of all of the reports that are submitted in the competency evaluation process under MCL 330.2062—MCL 330.2068 or MCL 712A.18n—MCL 712A.18q. MCL 330.2070(5); MCL 712A.18r(5).

The court may order that reports that are sealed under MCL 330.2070(5) or MCL 712A.18r(5) be opened only for the following purposes:

•​for further competency or criminal responsibility evaluations, MCL 330.2070(5)(a); MCL 712A.18r(5)(a);

•​to assist in mental health treatment ordered under the Mental Health Code, if the records are considered to be necessary, MCL 330.2070(5)(c); MCL 712A.18r(5)(c); or

•​for statistical analysis, data gathering, or scientific study or other legitimate research, MCL 330.2070(5)(b); MCL 330.2070(5)(d)-(e); MCL 712A.18r(5)(b); MCL 712A.18r(5)(d)-(e).

Reports that are opened for the purposes of statistical analysis, data gathering, or scientific study “shall remain confidential.” MCL 330.2070(6); MCL 712A.18r(6).

“Any statement that a juvenile makes during a competency evaluation, or any evidence resulting from that statement, is not subject to disclosure.” MCL 330.2070(7); MCL 712A.18r(7).