2014
Juvenile Competency
Manual
A guide for legal professionals
This manual is written for Michigan legal professionals involved in the handling
and processing of juvenile delinquency cases where legal competency may be a
factor for consideration in the prosecution and/or defense of a child.
STATE BAR OF MICHIGAN CHILDREN’S LAW SECTION
Written by Christine Piatkowski, J.D., Eric Scott, J.D., Terri Scott, Ph.D.,
Douglas Park, Ph.D., Kimberly Larson, J.D., Ph.D.,
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and Michelle Weemhoff, M.S.W.
INTRODUCTION
The State of Michigan has recently enacted laws which address the issue of juvenile competency
in delinquency matters. These laws are premised upon the understanding that cases handled in
the juvenile court differ from those processed in the adult criminal justice system. First and
foremost, there is an acknowledgement that children may not have the same ability and capacity
to participate in legal proceedings as that of adults. Factors such as age, immaturity,
developmental delays, disabilities, mental health needs, reasoning deficits, and other issues are
often present in juvenile cases. It is imperative that professionals that work with the juvenile
population protect children from tacitly participating in legal processes that they cannot or do not
understand.
In today’s society, the consequences of a delinquency record extend beyond court hearings and
can have implications for a juvenile well into adulthood. The importance of legal counsel and a
youth’s meaningful participation in delinquency proceedings cannot be overlooked.
Knowledgeable and informed juveniles that are able to assist in their legal defense are critical to
a fair hearing and proper legal determination.
Consistent with the goals of the new statutes, this manual is designed to provide uniformity and
clarity to the practices and procedures that are used by courts and attorneys in the State of
Michigan when a competency evaluation is needed and/or requested. Uniform guidelines for
evaluators, evaluations, hearings and court orders serve to ensure due process rights and
constitutional protections for children.
Michigan has looked to other states for ideas and input in the crafting of its competency laws. Its
forward-thinking approach to incorporating presumptions for competency and restoration
strategies are examples of positive change that will benefit juveniles and families. Juvenile
delinquency cases are about rehabilitating children and remedying the problems which bring the
juvenile to the court’s attention. The new competency laws will ideally provide families with
appropriate support, more timely relief, and steps for preventing future court involvement for
minors that cannot understand or appreciate the gravity of juvenile proceedings.
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TABLE OF CONTENTS
DEFINITIONS………………………………………………………………………………..3
PRESUMPTION OF INCOMPETENCY…………………………………………………….4
IDENTIFICATION OF NEED FOR EVALUATION………………………………………..4-5
SELECTION OF QUALIFIED FORENSIC MENTAL HEALTH EXAMINER (QFMHE)..5-6
COMPETENCY EVALUATION…………………………………………………………….6
COMPETENCY REPORT……………………………………………………………………6-7
INDEPENDENT EVALUATION……………………………………………………………7
COMPETENCY HEARING………………………………………………………………….7
RESTORATION………………………………………………………………………………7-8
APPOINTMENT OF QUALIFIED RESTORATION PROVIDER.........................................8
SERIOUS EMOTIONAL DISTURBANCE………………………………………………….8
FUNDING……………………………………………………………………………………..9
RESOURCES………………………………………………………………………………10-39
LEGAL STATUTES………………………………………………………………..10-17
CASELAW…………………………………………………………………………….18
LEGAL PROFESSIONAL SAMPLE CHECKLISTS……………………………..19-23
STATE COURT ADMINISTRATIVE OFFICE FORMS…………………………24-29
SAMPLE MOTIONS……………………………………………………………….30-35
SAMPLE QUESTIONS & TIPS FOR COMPETENCY EXPERT….……………..36-38
RESEARCH AND OUT OF STATE INFORMATION………………………………39
CONTACT INFORMATION FOR ASSISTANCE…………………………………..39
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DEFINITIONS
Competency Evaluation: 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.
Competency Hearing: A hearing to determine whether a juvenile is competent to proceed.
Incompetent to Proceed: A juvenile that is the subject of a delinquency petition may be
deemed incompetent to proceed in a court hearing if the juvenile, based on age-appropriate
norms, lacks a reasonable degree of rational and factual understanding of the proceeding or is
unable to do one or more of the following: (a) Consult with and assist his or her attorney in
preparing his or her defense in a meaningful manner and/or (b) Sufficiently understand the
charges against him or her. MCL 330.2060a.
Least Restrictive Environment: A supervised community placement, preferably with the
parent, guardian, or relative or a facility or conditions of treatment that is a residential or
institutional placement only used as a last resort based on the best interest of the juvenile or for
reasons of public safety.
Qualified Forensic Mental Health Examiner (QFMHE): A psychiatrist or psychologist with
experience or training in all of the following:
 Forensic evaluation procedures for juveniles
 Evaluation, diagnosis, and treatment of children and adolescents with emotional
disturbance, mental illness, or developmental disabilities
 Clinical understanding of child and adolescent development
 Familiarity with competency standards in Michigan
A mental health professional other than a psychiatrist or psychologist who has completed
a juvenile competency training program for forensic mental health examiners that is
endorsed by DCH under §2072 of the Mental Health Code AND who possesses
experience or training in all of the areas required for a QFMHE.
Qualified Restoration Provider: An individual who the court determines, as a result of the
opinion provided by the QFMHE, has the skills and training necessary to provide restoration
services.
Restoration: The process by which education or treatment of a juvenile that results in that
juvenile becoming competent to proceed.
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PRESUMPTION OF INCOMPETENCY
For many years, the issue of juvenile competency has been debated in the State of Michigan.
Topics of discussion have focused on the age at which a child is deemed competent to take part
in juvenile proceedings and to assist in his or her own defense. Michigan law specifies that a
juvenile under the age of 10 is presumed incompetent to stand trial. MCL 330.2062(1); MCL
712A.18n(1). This is a rebuttable presumption. Children 10 years of age or older are presumed
to be competent to proceed to trial unless the issue of competency is raised by a party. MCL
330.2062(2); 712A.18n(2). A juvenile, the juvenile’s attorney, or the prosecuting attorney can
request a competency evaluation at any time during the proceeding. A competency evaluation
can also be ordered by the court on its own motion at any time. MCL 330.2062(2); MCL
712.18n(2). If a request for evaluation is made, the delinquency proceeding is suspended until
the juvenile’s competency is determined. MCL 330.2062(3); MCL 712A.18n(3).
IDENTIFYING NEED FOR A COMPETENCY EVALUATION
Children that may be identified as requiring a competency evaluation are those that the legal
professional believes cannot understand the nature and purpose of the proceedings; cannot
understand the participants and/or role of the various parties involved in the proceedings; cannot
meaningfully participate in the proceedings to assist with his/her defense; children that lack
reasoning and decision making skills; juveniles that are unable to participate in a delinquency
proceeding because they lack self-control, cannot testify, etc. The process for determining if a
child is in need of a competency evaluation will vary depending upon the circumstances and the
party requesting the evaluation.
A. PROSECUTORS
As a practical matter, prosecutors are likely to seek an evaluation on any child age 9 or younger
before proceeding in a delinquency case. From a best practice standpoint, a prosecutor or
assistant prosecutor should evaluate the facts on a case by case basis. Generally, prosecutors do
not meet with an alleged delinquent prior to issuing charges and will have limited information
about the child’s mental or emotional development. As such, prosecutors may wish to consider
whether the facts as presented are of a serious enough nature to warrant pursuing the delinquency
case. Status offenses and minor misdemeanors involving children aged 9 or younger may be
reviewed to determine if there is a basis for diversion proceedings as opposed to pursuing formal
delinquency actions. Felonious behavior may warrant delinquency action, and in more serious
cases, waiver to the adult system; however, this should be done sparingly and evaluated as the
case presents itself. Given that there is a presumption that a juvenile under the age of 10 is
incompetent, a prosecutor will have a higher burden to show that a child below the age of 10 is,
in fact, competent to proceed with a formal delinquency action.
B. DEFENSE COUNSEL
If a child is below the age of 10, a juvenile attorney should, as a matter of course, raise the issue
of competency with the jurist. If a child is age 10 or older, defense counsel may wish to request
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a competency evaluation if the juvenile attorney learns of facts which suggest that the child is
incompetent to proceed to adjudication. A defense counsel’s interaction with the juvenile is
extremely important. As a best practice standard, defense counsel should review the charges
with the juvenile, the entire court process, and the various roles of the judge, prosecutor, and
defense counsel to make a preliminary assessment of the juvenile’s understanding of the
proceedings. The juvenile’s attorney should also obtain facts from various other sources, such as
parents, guardians, schools, doctors and petitioners to help in making a decision as to whether a
competency evaluation is appropriate. Additional factors used to assess the juvenile’s need for a
competency evaluation include, but are not limited to, the following: the child’s ability to retain
knowledge; the child’s ability to convey an understanding of the roles of court personnel and
parties; knowledge and understanding the charges; the juvenile’s understanding of the
consequences that could be imposed, and an understanding of the available options such as
pleading or going to trial. An inability to retain information or a lack of understanding as to any
of these key components, while not dispositive, is a strong indicator that the juvenile’s
competency may need to be evaluated. If after meeting with the juvenile, defense counsel
believes an evaluation is warranted, counsel may request a competency evaluation verbally or by
written motion with the court so that the competency process can begin.
C. COURT
A jurist may wish to consider a competency evaluation when it becomes evident that a child does
not understand the proceedings, the charges against him or her, or the potential consequences
that may result from a delinquency hearing.
Once a court determines that a competency evaluation is warranted, an order for the evaluation
may be entered. MCL 712A.2(a)(2)-(4). The court is to maintain a record of the number of
requests made. MCL 712A.18n(2)(4).
SELECTION OF QUALIFIED FORENSIC MENTAL HEALTH EVALUATOR
(QFMHE)
Michigan law requires that a “qualified forensic mental health examiner” conduct the
competency evaluation. MCL 712A.18o(1); MCL 330.2064(1). This means that only a
psychiatrist, psychologist or mental health professional endorsed by the Department of
Community Health with the necessary experience and training will be allowed to make
competency recommendations. It is expected that examiners will be knowledgeable and
experienced in the areas of forensic evaluation procedures; evaluation, diagnosis and treatment
of children with emotional disturbance, mental illness, or developmental disabilities; and be
familiar with the competency standards in Michigan. The new laws also specify that a clinical
understanding of child and adolescent development is a condition for identifying an appropriate
examiner. Ultimately, the court has the final selection of an expert; however, each party retains
the right to choose an independent qualified examiner to conduct additional evaluations at the
party’s own expense, if they so desire. MCL 712A.18o(2); MCL 330. 2064(2).
A person must be a psychiatrist, psychologist or mental health professional endorsed by the
Department of Community Health with the necessary experience and training to be considered as
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a qualified forensic mental health examiner. MCL 330.2060b(3)(a)(b). A psychiatrist or
psychologist will need to possess experience or training in the following: (i) Forensic evaluation
procedures for juveniles; (ii) Evaluation, diagnosis, and treatment of children and adolescents
with emotional disturbance, mental illness, or developmental disabilities; (iii) Clinical
understanding of child and adolescent development; and (iv) Familiarity with competency
standards in this state. Other mental health professionals will be required to possess training and
experience in these four areas and to additionally complete a juvenile competency training
program endorsed by the department. If there are no qualified forensic mental health examiners
in a particular county, arrangements will need to be made with qualified forensic mental health
examiners from other nearby locations when needed.
Prior to the evaluation, the court shall order the prosecutor and the juvenile’s attorney to provide
the examiner with all relevant information related to the juvenile’s competency. The prosecutor
is to provide information about the nature of the offense and information about the juvenile’s
background that the prosecutor possesses. The juvenile’s attorney is to provide available records
or other relevant information, including psychiatric records, school records, medical records and
child protective service records. Attorney work product and attorney-client privileges are not
abrogated. This information is to be turned over to the examiner within 10 days after the court
issues the competency evaluation order. MCL 330.2066(1)-(4); MCL712A.18p(1)-(4). Ideally,
the examiner will have an opportunity to review all of the documentation prior to the start of the
competency assessment.
COMPETENCY EVALUATION
When the competency evaluation occurs, it is to take place in the least restrictive environment.
MCL330.2064(3);MCL 712A.18o(3). There is a presumption for parental, guardian, or relative
custody while an evaluation is performed. MCL 330.2060b(1); MCL 712A.1(1)(i).
During the evaluation, statements made by the juvenile may not be used for any purpose other
than assessment of his or her competency without the written consent of the juvenile or the
juvenile’s guardian after an opportunity to consult with legal counsel. The law states that the
constitutional protections against self-incrimination apply and that any evidence or statements
made by the juvenile during the evaluation are inadmissible in any proceedings to determine the
juvenile’s responsibility. MCL 330.2070(1)-(4); MCL 712A.18r(1)-(4).
COMPETENCY REPORT
The competency evaluation should result in a written report produced to the court within 30 days
of the original order for evaluation. MCL 330.2066(5); MCL 712A.18p(5). Copies of the report
must be given to the juvenile’s attorney, the prosecutor, and any guardian ad litem no later than 5
days after the court receives the report. MCL 330.2066(8);MCL 712A.18p (8). The contents of
the report shall contain an extensive list of items found at MCL 330.2066(5)(a)-(c);MCL
712A.18p(5)(a)-(c) that include, but are not limited to, an outline of all procedures, techniques,
and tests used; records reviewed; factors that affect competence; the juvenile’s ability to
understand the court process, charges, and impact of his or her actions; the juvenile’s ability to
reason, etc. The laws detail the requirements for the contents of the report and therefore should
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be consulted when handling competency cases. The court is required to seal submitted reports by
court order after adjudication or a finding that a juvenile is unable to regain competence. MCL
330.2062-MCL330.2068; MCL712A.18n-MCL712A.18q; MCL 330.2070(5);MCl712A.18r(5).
INDEPENDENT EVALUATION
Parties to the proceedings may seek an independent evaluation at the parties’ expense. MCL
712A.18o(2); MCL 330. 2064(2). The law does not address who shall pay for the evaluation in a
case where a parent is the victim.
COMPETENCY HEARING
Within 30 days of the examiner’s report being filed with the court, a hearing must be held to
determine the juvenile’s competency. The parties may enter a written stipulation based on the
report or can introduce other evidence during the hearing concerning the minor’s mental
condition. A juvenile is incompetent to proceed if he or she lacks a reasonable understanding of
the proceeding. A juvenile can also be found incompetent if he or she is unable to consult with
and assist his or her attorney in preparing his or her defense in a meaningful manner and/or lacks
sufficient understanding of the charges against him or her. Consideration is to be given to ageappropriate norms when making this determination. A court is required to dismiss charges with
prejudice if the court finds a juvenile incompetent to proceed and there is a substantial
probability that he or she will remain incompetent to proceed for the foreseeable future. If
appropriate, the court may determine custody of the juvenile deemed incompetent to proceed.
Michigan law is silent on the issue of burden of proof and the production of a competency expert
at a competency hearing. Best practice suggests that a party disputing the results of a courtordered evaluation should be prepared to submit evidence and subpoena independent evaluators
and other witnesses to rebut the presumption that a juvenile is competent or incompetent to stand
trial.
RESTORATION
Restoration is “the process by which education or treatment of a juvenile results in that juvenile
becoming competent to proceed.” MCL 330.2060c. If the court makes a finding of
incompetence but finds that competence can be restored in the foreseeable future, the court can
issue a restoration order. There are some exceptions. If the charge is a traffic offense or
misdemeanor, the matter must be dismissed. If the offense is a serious misdemeanor, the court
may dismiss the matter or suspend the proceeding. If the offense is a felony, the proceedings
shall be suspended. Before issuing a restoration order, the court is required to hold a hearing to
determine the least restrictive environment for completion of the restoration.
Courts may issue a restoration order that is valid for 60 days from the date of the initial finding
of incompetence. Restoration orders are applicable during this time until a qualified forensic
mental health examiner submits a report that the juvenile has regained competency or, in the
alternative, receives a report from the qualified restoration provider that there is no substantial
probability that the juvenile will regain competency within the period of the order. Restoration
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orders may also be continued under the stated time frames until the charges are dismissed or the
juvenile reaches 18 years of age.
APPOINTMENT OF QUALIFIED RESTORATION PROVIDER (QRP)
Once a restoration order is entered, a qualified restoration provider becomes involved with the
juvenile. The law identifies a “qualified restoration provider” as an individual that has the skills
and training necessary to provide restoration services. MCL 330.2060b(4). A qualified
restoration provider is to determine whether a juvenile has regained competency or, in the
alternative, make a determination that there is no substantial probability that the juvenile will
regain competency within the period of a restoration order. MCL 330.2074. The current law
does not address “how” restoration is to be conducted. Best practice suggests that restoration
services will vary based on the reason the juvenile was found incompetent.
The possible outcomes for when a juvenile is found incompetent after the provision of
restoration services are found in MCL 330.2074. The restoration provider gives information to
the court and the qualified forensic mental health examiner every 30 days, or sooner if the
restoration provider determines that the juvenile is no longer incompetent to proceed or there is
no substantial probability that the juvenile will be competent to proceed within the time period of
the order. The restoration provider can recommend that the original restoration order be renewed
by the court for another 60 days, but not to exceed a total of 120 days, if the provider anticipates
that the juvenile’s competency will be restored within the period of the renewed restoration
order. The provider must make the recommendation for an extension by no later than 14 days
before the expiration of the initial 60 day order.
SERIOUS EMOTIONAL DISTURBANCE
The options available to a juvenile found incompetent due to a serious emotional disturbance are
identified in MCL 330.2074(5). If the juvenile cannot be restored to competency due to serious
emotional disturbance, the court may order under certain conditions that mental health services
be provided to the juvenile by the department for a period not to exceed 60 days. The court’s
ability to enter this type of order is 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 provider. MCL 330.2074(5). If this is
ordered, a report shall be issued by the entity providing mental health services to the court and to
the qualified forensic mental health examiner no later than 14 days before the expiration of an
order for treatment. The court shall review the report and renew the order for another period of
treatment not to exceed 60 days, for a total of 120 days, or, in the alternative, determine the
custody of the juvenile and dismiss the charges.
If it is determined that the juvenile cannot be restored to competency, the court shall determine
custody of the juvenile by releasing the child to the parent, legal guardian or legal custodian
under appropriate conditions and dismissing the charges against the minor or, in some cases,
directing that civil commitment proceedings be initiated under §498d of the Mental Health Code.
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FUNDING
In the State of Michigan, each local county determines how competency evaluations and
restoration services will be provided and funded. The state has not identified funding resources
for the counties as of the writing of this manual. Examples of ways that the counties can fund
examinations and restoration services include: 1) court employee based evaluations; 2) privately
retained evaluations from outside sources; 3) court contracts with individual groups of private
evaluators; 4) court clinics; and 5) use of community mental health providers. The law requires
that the qualified forensic mental health examiner be allowed reasonable fees for services
rendered, although the rate of compensation paid to examiners for competency evaluations varies
by type, location and provider. Michigan law does not address or require Community Mental
Health to conduct competency evaluations or to provide restoration services.
There is a presumption in favor of conducting a competency evaluation while the juvenile
remains in the custody of a parent or legal guardian. This is unless removal from the home is
necessary for the best interests of the juvenile. Public safety or a parent/guardian’s refusal to
cooperate in the competency evaluation process may be possible reasons for a child’s removal to
a more restrictive setting. MCL 330.2064 (3). If removal from the juvenile’s home is necessary,
the law does not address how interim placements will be funded. It is important to note that
DHS administrative policy prohibits use of the County Child Care Fund for competency
evaluations, pre-adjudication placements, or restoration services. The new law does not identify
a funding source for restoration services. The law also does not address funding for Serious
Emotional Disturbance services ordered by the court.
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RESOURCES
LEGAL STATUTES
MCLS § 712A.18n (2014)
§ 712A.18n. Competency of juvenile; presumption; order to determine competency during proceeding; record.
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 on its own motion, or at the request of the juvenile, the juvenile's attorney, or the prosecuting attorney, a
competency evaluation to determine whether the juvenile is incompetent to proceed if the juvenile is the subject of a delinquency
petition in the court or if the juvenile is under the court's jurisdiction under section 2(a)(2) to (4) of this chapter. 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.
(4) The court shall maintain a record of how many competency evaluations are requested under this section.
MCLS § 712A.18o (2014)
§ 712A.18o. Competency evaluation; conduct by qualified forensic mental health examiner; expert witness; additional
evaluations at party's expense; conduct in least restrictive environment.
Sec. 18o. (1) A competency evaluation ordered under section 18n of this chapter shall be conducted by a qualified juvenile
forensic mental health examiner. The qualified juvenile 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 of an expert witness serving as a
qualified juvenile forensic mental health examiner.
(2) This section does not prohibit any party from retaining the party's own qualified juvenile 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.
MCLS § 712A.18p (2014)
§ 712A.18p. Providing information relating to competency; submission of report by qualified forensic mental health
examiner; extension; copies of report to be provided to certain individuals.
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 juvenile 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 (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 qualified juvenile 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 juvenile 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 evaluation shall be
based on a juvenile adjudicative competence interview (JACI) or another interview method approved by the court. The report
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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 impairment. 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 juvenile forensic mental health examiner shall provide the court with an opinion about the juvenile's
competency to proceed. If the qualified juvenile forensic mental health examiner determines that the juvenile is incompetent to
proceed, the qualified juvenile forensic mental health examiner shall comment on the nature of any psychiatric or psychological
disorder or cognitive impairment, the prognosis, and the services needed to restore the juvenile to competency, if possible,
within a projected time frame.
(7) The court in its discretion may, for good cause, grant the qualified juvenile 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.
MCLS § 712A.18q (2014)
§ 712A.18q. Competency hearing.
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 juvenile forensic mental health examiner appointed by the court to determine the juvenile's mental condition
shall be allowed reasonable fees for services rendered.
(4) The court shall report to the state court administrator the number of juveniles found to be incompetent to proceed.
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MCLS § 712A.18r (2014)
§ 712A.18r. Competency evaluations; self-incrimination; evidence or statements inadmissible in proceeding determining
responsibility; sealing reports; order to open reports; purposes; confidentiality; disclosure.
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 other than assessment
of his or her competency 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.
MCLS § 712A.18s (2014)
§ 712A.18s. Court finding that juvenile may be restored to competency in foreseeable future; restoration order; renewal;
report that substantial probability that juvenile will remain incompetent; actions of court; order to provide treatment;
report from entity providing services; duties of court; record.
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 environment 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 juvenile forensic mental health examiner, based on information provided by 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 juvenile 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 juvenile 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.
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(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 juvenile 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, MCL 330.1498d.
(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 from a qualified juvenile forensic mental health 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, 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, 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.
(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 juvenile 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. The order for treatment and any renewed order
shall not exceed a total of 120 days.
(b) Determine custody of the juvenile and dismiss the charges against the juvenile.
(7) The department of community health shall maintain a record of the number of juveniles for whom the court ordered that
mental health services be provided under subsection (5).
MCLS § 330.1498d (2014)
§ 330.1498d. Hospitalization of minor; conditions; request by family independence agency or county juvenile agency.
Sec. 498d. (1) Subject to section 498e and except as otherwise provided in this chapter, section 1074, and section 18s of chapter
XIIA of the probate code of 1939, 1939 PA 288,MCL 712A.18s, a minor of any age may be hospitalized if both of the following
conditions are met:
(a) The minor's parent, guardian, or a person acting in loco parentis for the minor or, in compliance with subsection (2) or (3),
the department of human services or county juvenile agency, as applicable, requests hospitalization of the minor under this
chapter.
(b) The minor is found to be suitable for hospitalization.
(2) The department of human services may request hospitalization of a minor who is committed to the department of human
services under 1935 PA 220, MCL 400.201 to 400.214.
(3) As applicable, the department of human services may request hospitalization of, or the county juvenile agency may request an
evaluation for hospitalization of, a minor who is 1 of the following:
(a) A ward of the court under chapter X or XIIA of the probate code of 1939, 1939 PA 288, MCL
710.21 to 710.70 and 712A.1 to 712A.32, if the department of human services or county juvenile agency is specifically
empowered to do so by court order.
(b) Committed to the department of human services or county juvenile agency under the youth rehabilitation services act,
1974 PA 150, MCL 803.301 to 803.309, except that if the minor is residing with his or her custodial parent, the consent of the
custodial parent is required.
(4) Subject to sections 498e, 498f, and 498j, and except as provided in section 1074 and section 18s of chapter XIIA of the
probate code of 1939, 1939 PA 288, MCL 712A.18s, a minor 14 years of age or older may be hospitalized if both of the
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following conditions are met:
(a) The minor requests hospitalization under this chapter.
(b) The minor is found to be suitable for hospitalization.
(5) In making the determination of suitability for hospitalization, a minor shall not be determined to be a minor requiring
treatment solely on the basis of 1 or more of the following conditions:
(a) Epilepsy.
(b) Developmental disability.
(c) Brief periods of intoxication caused by substances such as alcohol or drugs or by dependence upon or addiction to those
substances.
(d) Juvenile offenses, including school truancy, home truancy, or incorrigibility.
(e) Sexual activity.
(f) Religious activity or beliefs.
(g) Political activity or beliefs.
(6) As used in this section, "county juvenile agency" means that term as defined in section 2 of the county juvenile agency
act, 1998 PA 518, MCL 45.622.
MCLS § 330.1702 (2014)
§ 330.1702. Receipt of mental health services; rights, benefits, privileges, and competency not affected.
Sec. 702. (1) The receipt of mental health services, a determination that an individual meets the criteria of a person requiring
treatment or for judicial admission, or any form of admission to a facility including by judicial order shall not be used to deprive
an individual of his or her rights, benefits, or privileges.
(2) The receipt of mental health services, a determination that an individual meets the criteria of a person requiring treatment or
for judicial admission, or any form of admission to a facility including by judicial order does not constitute a determination or
adjudication that the individual is incompetent as that term is used in other statutes.
MCLS § 330.2062 (2014)
§ 330.2062. Competency of juvenile; presumption; order to determine competency during proceeding.
Sec. 1062. (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 upon its own motion, or at the request of the juvenile, the juvenile's attorney, or the prosecuting attorney,
a competency evaluation to determine whether the juvenile is incompetent to proceed if the juvenile is the subject of a
delinquency petition in the court or if the juvenile is under the court's jurisdiction under section 2(a)(2) to (4) of chapter XIIA of
the probate code of 1939, 1939 PA 288, MCL 712A.2. 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.
MCLS § 330.2064 (2014)
§ 330.2064. Competency evaluation; conduct by qualified forensic mental health examiner; expert witness; additional
evaluations at party's expense; conduct in least restrictive environment.
Sec. 1064. (1) A competency evaluation ordered under section 1062 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 of an expert witness serving as 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.
MCLS § 330.2066 (2014)
§ 330.2066. Providing information relating to competency; submission of report and comment to court by qualified
forensic mental health examiner; extension; copies of report to be provided to certain individuals.
Sec. 1066. (1) The court shall order the prosecuting attorney to provide to the juvenile's attorney all information related
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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 (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 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 evaluation shall be based on
a juvenile adjudicative competence interview (JACI) or another interview method approved by the court. 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 impairment. 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.
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(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 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.
(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.
MCLS § 330.2068 (2014)
§ 330.2068. Competency hearing.
Sec. 1068. (1) Not later than 30 days after a report is filed under section 1066, 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.
MCLS § 330.2070 (2014)
§ 330.2070. Competency evaluations; self-incrimination; evidence or statements inadmissible in proceeding determining
responsibility; sealing reports; order to open reports; purposes; confidentiality; disclosure.
Sec. 1070. (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 other than assessment
of his or her competency 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 1062 to 1068 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 under this act.
(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.
CLS § 330.2072 (2014)
§ 330.2072. Training program for juvenile forensic mental health examiners.
Sec. 1072. (1) Not later than 18 months after the effective date of the amendatory act that added this section, the department
shall review and endorse a training program for juvenile forensic mental health examiners who provide juvenile competency
exams. A psychiatrist or psychologist may, but is not required to, seek certification under the program established under this
section.
(2) The department may make adaptations or adjustments to the endorsed training program described under subsection (1) based
on research and best practices.
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MCLS § 330.2074 (2014)
§ 330.2074. Court finding that juvenile may be restored to competency in foreseeable future; restoration order; renewal;
report that substantial probability that juvenile will remain incompetent; actions of court; order to provide treatment;
report from entity providing services; duties of court.
Sec. 1074. (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 environment 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 forensic mental health examiner, based on information provided by 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 1066. 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.
(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 from a qualified forensic mental health 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, 1974 PA 150, MCL 803.301 to 803.309, order that mental health services be provided to the
juvenile by the department, 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.
(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. The order for treatment and any renewed order
shall not exceed a total of 120 days.
(b) Determine custody of the juvenile and dismiss the charges against the juvenile.
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CASELAW
Although civil in nature, delinquency proceedings are likened to adult criminal proceedings and
require that the essential elements of due process and fair treatment be met by the court. In re
Gault, 387 U.S. 1, 30-31; 87 S.Ct. 1428 (1967). The conviction of a defendant while he or she is
incompetent to stand trial violates due process. People v Newton, 179 Mich App 484, 487
(1989). The Due Process Clause of the U.S. Constitution, Ams V, XIV; Const 1963 art 1, § 17,
requires that a court hold a hearing sua sponte regarding competency when any evidence raises a
bona fide doubt about the competency of the defendant. People v. Ray, 431 Mich 260, 270, n 5;
430 N. W. 2d 626 (1988). “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). A person
lacks the competency to stand trial if he or she lacks capacity to understand the nature and object
of the proceedings, to consult with counsel, and to assist in preparing his or her defense. Due
process prohibits the government from prosecuting a defendant who is legally incompetent to
stand trial. Drope v Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L. Ed 2d 103 (1975); Pate v
Robinson 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed. 2d 815 (1966). The issue of competency is
collateral to the issue of guilt and involves only the defendant’s present ability to consult with
his/her lawyer and to understand the proceedings against him/her. Dusky v. United States, 362
U.S. 402, 80 S.Ct. 788, (1960). The legal standard for competence as defined in Dusky v United
States, id, and affirmed in Godinez v Moran, 113 S. Ct. 2680 (1993), is whether the defendant
has “sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding” and whether the defendant has a “rational as well as factual understanding of
proceedings against him.”
Currently, in Michigan, there are two published opinions pertaining to juvenile competency.
In the Matter of David Anthony Carey (AKA People v Carey), 241 Mich. App. 222; 615
N.W.2d 742 (2000), establishes that a juvenile has a due process right to have the courts
determine the issue of competency to stand trial. Carey goes on to state that in the course of
evaluating a minor, the juvenile must be evaluated using juvenile norms, not adult norms.
The current competency legislation is a culmination of the standard set by the Carey case.
The subsequent case, In the Matter of Blackshear, 262 Mich. App. 101; 686 N.W.2d
280(2004) addresses whether the court could order a child determined to be incompetent to be
admitted to a county’s mental health authority for treatment, and whether the courts could
order a county mental health authority to pay for such treatment. In both instances, the Court
of Appeals held that the trial courts were without authority to direct a county mental health
authority to treat an incompetent minor, or pay for such treatment.
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SAMPLE CHECKLISTS
JUDICIAL CHECKLIST
___Conduct inquiry to determine if a competency evaluation is needed
___Is Juvenile 9 or younger-Presumption of incompetency exists
___Check if presumption is rebuttable by a party
___If presumption is not rebuttable, dismiss petition
___Enter Order after Preliminary Hearing/Inquiry JC 10
___Order Competency Evaluation-JC 107
__Identify and Order Evaluator to conduct examination
__Order Attorneys to provide statutory information to Evaluator
__Order prosecutor to provide juvenile’s attorney with all information related to the
juvenile’s competency.
__Suspend Proceedings until competency is determined.
___Receive Qualified Forensic Mental Health Examiner’s Report within 30days of original order
for evaluation.
___Distribute Evaluator’s report to Juvenile’s Attorney, Prosecutor and Guardian Ad Litem no
later than 5 days after the court receives the report.
___Check contents of QFMHE’s report for completeness
___Conduct inquiry of the parties to ascertain whether there is a written stipulation based on the
report. (Parties are not required to stipulate to the entry of the report.)
___Conduct inquiry of the parties to ascertain whether parties have other evidence to introduce at
the competency hearing concerning the minor’s mental condition.
___Is there a party demand that the expert be produced for purposes of cross-examination? If so,
order the expert’s presence at the competency hearing and issue a court subpoena for expert
presence.
___Schedule Competency Hearing within 30 days of examiner’s report being filed with the
court.
___Hold Competency Hearing
___Determine if juvenile is incompetent to proceed
__lacks understanding of the proceeding
__is unable to consult with or assist his or her attorney in preparing his or her defense
in a meaningful manner
__lacks sufficient understanding of the charges against him or her
__consider age appropriate norms in determination.
___Set the matter for trial if juvenile is deemed competent.
___Dismiss charges with prejudice if incompetent to proceed and there is substantial probability
that he or she will remain incompetent to proceed for the foreseeable future.
__If charge is a traffic offense or misdemeanor, matter must be dismissed.
__If offense is a serious misdemeanor, may dismiss the matter or suspend the proceeding.
__If the offense is a felony, the proceedings shall be suspended.
___Determine if juvenile is incompetent but may be restored to competency or the
offense is for a felony/serious misdemeanor within the exceptions.
___Hold hearing to determine least restrictive environment for completion of restoration.
___Does child have serious emotional disturbance? If so, may enter treatment order that mental
health services be provided for a period not to exceed 60 days. Will also need to order
19
the appointment of a mental health provider and the issuance of a required report to the
court within mandated time period.
___If child does not have SED, enter Restoration Order if appropriate.
___Order the appointment of a Restoration Provider.
___Order Qualified Forensic Health Examiner to confer with Qualified Restoration Provider and
to submit a report that juvenile has regained competency, or, in the alternative, issue a report
that there is no substantial probability that the juvenile will regain competence within the
period of the restoration order.
___Set matter for restoration or treatment hearing within 30 days from the date of the initial
finding of juvenile incompetency.
___Enter Order After Hearing on Competency-JC 108
___Receive restoration report from QMHE by no later than 30 days from date of initial finding
of incompetency. (The restoration provider gives information to the QMHE and court every
30 days or sooner, if the juvenile is no longer incompetent to proceed or the provider
determines that there is no substantial probability that the juvenile will be competent to
proceed with the time period of the order). (For children with SED, a report shall be issued
by the entity providing mental health services).
___Review Restoration Report or Mental Health Services Report recommendations
___Is Restoration or Mental Health Provider requesting renewal of restoration order or treatment
order for another 60 days not to exceed a total of 120 days if the juvenile’s competency will
be restored within the time period?
___Determine if examiner’s request for renewal is received no later than 14 days before the
expiration of the treatment order or initial 60 day restoration order.
___Enter Ex Parte Renewal of Restoration Order or treatment order as appropriate not to exceed
120 days. JC 109.
___Determine if the juvenile can or cannot be restored to competency.
__Consider ordering civil commitment proceedings if appropriate.
__Release child to parent, legal guardian or legal custodian under appropriate conditions
and dismiss the charges.
___Enter Order Following Report on Restoration. JC 110.
___Court is to maintain a record of the number of requests made for evaluation.
___Court is required to seal submitted reports by court order after adjudication or a finding that a
juvenile is unable to regain competence.
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PROSECUTOR CHECKLIST
___Determine if request for competency is appropriate.
___File Motion for Competency Evaluation (may elect to file with original petition)
___Serve Appropriate Parties
___Prepare for Hearing to Request Competency
___Obtain Court Order for Competency Evaluation
___Provide Juvenile’s Attorney with all relevant information related to Juvenile’s competency.
___Provide QMHE with all information within 10 days after the court issues a competency
order. A list of items deemed relevant is found at MCL 330.2066.
___Receive and review QMHE written report.
___Prepare for Competency Hearing
__Burden of Proof rests with the moving party.
__Questioning of Expert
__Prosecutor to prove competence or to refute presumption of incompetence.
__Seek stipulations for expert qualifications, recommendations, etc.
___Secure funding for Independent Evaluation at Prosecutor Expense
___File Motion to Request Independent Evaluation
___Subpoena experts and witnesses for competency hearing
___If juvenile found competent, proceed to trial.
___If juvenile found incompetent, request restoration order, treatment order, or civil
commitment proceedings, as appropriate.
___Participate in Restoration Proceedings
___Request Renewal of Restoration and Treatment Orders, as appropriate
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DELINQUENCY ATTORNEY CHECKLIST
____Meet with Client
__Does the juvenile have a physical or cognitive impairment?
__Does the child receive special education services?
__Is the child involved with outside therapeutic or counseling services?
__Has the child been hospitalized for brain trauma, mental health, etc.
__Does the child respond to questions in an appropriate way?
__Does the child appear to understand the nature of the proceedings?
__Does the child understand the possible consequences of the proceedings?
__Can the child explain back what is being relayed to him or her?
__Can the child meaningfully participate in his/her defense?
__Can the child explain the various roles of the legal professionals?
__Does the juvenile understand the charges?
__Is the child developmentally delayed?
__Does the juvenile appear immature for age?
____Question Petitioner, Probation Officer, Witnesses concerning knowledge of child.
__School issues
__Mental Health needs
__Behavior
__Family Support and History
____Question Parents concerning charges and child’s developmental needs, services and other
history.
____Determine if request for competency is appropriate.
____File Motion for Competency
____Serve Appropriate Parties
____Prepare for Hearing to Request Competency Evaluation
__ Obtain Discovery from Parents and other sources (school, mental health, etc.)
__ Meet with Client outside of court setting
__Obtain Releases of Information and contact possible witnesses for hearing
__Subpoena witnesses for Competency Hearing
__Explain competency process to juvenile and parents
__Assist juvenile with defense to charges and protection of constitutional rights
____Obtain Court Order for Competency Evaluation
___Provide QMHE with all information within 10 days after the court issues a competency
order. A list of items deemed relevant is found at MCL 330.2066.
___Receive and review QMHE written report.
___Secure funding for Independent Evaluation
___Secure independent evaluator
___File Motion to Request Independent Evaluation
___Provide independent evaluator with information and any supplemental information
___Prepare for Competency Hearing
___Questioning of Expert
___File Motions in Limine. (Juvenile statements)
___Attorney to prove incompetence if evaluation requested by Attorney
___Subpoena Experts for Competency Hearing
22
___If juvenile found competent, proceed to trial.
___If juvenile found incompetent, request dismissal, as appropriate.
___Contact professionals involved in Restoration Proceedings and Treatment Orders.
___Provide updated information for consideration
___Monitor timelines for requests for renewal of restoration and treatment orders. Object if
requests are not timely made.
___Request dismissal with prejudice at hearing.
23
JIS CODE: PCS-PRH, INQ/OAP
TCS-PRH, INQ/OFPH, OFIQ
Approved, SCAO
ORDER AFTER
CASE NO.
PRELIMINARY
HEARING/INQUIRY
JUDICIAL CIRCUIT - FAMILY DIVISION
PETITION NO.
COUNTY (DELINQUENCY / PERSONAL PROTECTION)
PAGE 1
STATE OF MICHIGAN
Court address
Court telephone no.
1. In the matter of
name(s), alias(es), DOB
2. Date of hearing:
Judge/Referee:
Bar no.
THE COURT FINDS:
3. The court has received a complaint or a petition alleging that the juvenile comes within the provisions of MCL 712A.2.
4.
a. A preliminary inquiry has been made, and it is in the interests of the public and the juvenile that the petition
not be authorized.
be referred to alternate services.
be placed on the consent calendar.
be set for further inquiry.
be placed on the formal calendar.
*
b. A preliminary hearing was held. Notice of hearing was given as required by law.
5. There
is
is not
probable cause to believe the juvenile committed the offense(s).
6. The juvenile is being detained, is represented by an attorney, and waived the probable-cause determination.
7. The juvenile is charged with an offense that requires fingerprinting and has not been fingerprinted.
8. It is contrary to the welfare of the juvenile to remain in the home, or placement would be in the best interests of the juvenile,
because:
9.
a. The offense alleged is so serious that release would endanger public safety.
b. The juvenile is charged with a felony offense and will likely commit another offense pending trial if released, and
another petition is pending against the juvenile.
the juvenile is on probation.
the juvenile has a prior adjudication but was not under the court's jurisdiction at the time of apprehension.
c. There is substantial likelihood that if the juvenile is released to the parent(s), guardian, or legal custodian (with or
without conditions), the juvenile will fail to appear at the next court proceeding.
d. The home conditions of the juvenile make detention necessary.
e. The juvenile has run away from home.
f. The juvenile has failed to remain in a detention facility or nonsecure facility or placement (in violation of valid court order).
g. Pretrial detention is otherwise specifically authorized by law.
h. The juvenile is alleged to have violated a personal protection order and it appears there is a substantial likelihood
of retaliation or continued violation.
10. The juvenile is an Indian child as defined in MCR 3.002(12). The petitioner
has
has not
given notice of the
preliminary hearing as required by MCR 3.920(C)(1).
The preliminary hearing must be adjourned pending conclusion of a removal hearing required by MCR 3.967.
The removal hearing required by MCR 3.967 was conducted in conjunction with this hearing (see required findings in item 11).
A qualified expert,
, testified as required by law.
NOTE: If a competency evaluation is ordered, the preliminary hearing must be conducted and this form completed.
*Do not check item 4.b. if disposition is based on
preliminary inquiry or investigation only. Note that
preliminary hearings are mandatory in matters where
a juvenile is not released.
Do not write below this line - For court use only
(SEE SECOND PAGE)
25 USC 1912, PL - 96 - 272, 42 USC 670 et seq., MCL 712A.2, MCL 712A.11, MCL 712A.14, MCL 712A.15,
MCR 3.905, MCR 3.920(C)(1), MCR 3.932, MCR 3.935
JC 10 (10/13)
ORDER AFTER PRELIMINARY HEARING/INQUIRY (DELINQUENCY/PERSONAL PROTECTION), PAGE 1
JIS CODE: PCS-PRH, INQ/OAP
TCS-PRH, INQ/OFPH, OFIQ
Approved, SCAO
ORDER AFTER
CASE NO.
PRELIMINARY
HEARING/INQUIRY
JUDICIAL CIRCUIT - FAMILY DIVISION
PETITION NO.
COUNTY (DELINQUENCY / PERSONAL PROTECTION)
PAGE 2
STATE OF MICHIGAN
Court address
Court telephone no.
In the matter of
11.
a. Reasonable efforts to prevent or eliminate removal of the juvenile from the home were not made.
OR
b. Consistent with the circumstances, reasonable efforts were made to prevent or eliminate removal of the juvenile from
the home. Those efforts include: (Specify below.)
OR
c. The juvenile is an Indian child, and the court finds by clear and convincing evidence and the testimony of a qualified expert
witness who has knowledge about the child-rearing practices of the Indian child's tribe, that active efforts
have
have not been made to provide remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family. These efforts have proved
unsuccessful,
successful, the continued
custody of the juvenile by the parent or Indian custodian
is
is not likely to result in serious emotional or
physical damage to the juvenile, and the juvenile
should
should not
be removed from the home.
(Specify below.)
The efforts for 11.b. or 11.c. are:
(Specify the efforts from 11.b. or 11.c. here. If the juvenile is an Indian child, specify active efforts as defined
by MCR 3.002[1] and MCL 712B.3[a].)
IT IS ORDERED:
12. The petition is not authorized and is
dismissed.
placed on the consent calendar.
referred to alternate services.
The parent(s), guardian, or legal custodian shall appear for further inquiry on
Date, time, and location
.
13. The petition is authorized and the juvenile is released to
under the terms and conditions in item 18.
14. The petition is authorized and the juvenile is temporarily placed with/detained at
.
15. Release/Placement continues pending
on
Bond is set at $
resumption of the preliminary hearing
.
pretrial
trial
disposition
.
Date and time
16. This matter is set for a continued preliminary/removal hearing on
pursuant to MCR 3.967.
Date and time
The petitioner shall give notice of these proceedings as required by MCR 3.920(C)(1) (use form JC 48).
17. The juvenile shall be fingerprinted in accordance with the Order for Fingerprints (form MC 233).
18. Other:
Recommended by:
Referee signature
Date
JC 10 (10/13)
Judge
ORDER AFTER PRELIMINARY HEARING/INQUIRY (DELINQUENCY/PERSONAL PROTECTION), PAGE 2
JIS CODE: PCS-OCE
TCS-OCOM
Approved, SCAO
STATE OF MICHIGAN
JUDICIAL CIRCUIT - FAMILY DIVISION
COUNTY
ORDER FOR COMPETENCY EVALUATION
(DELINQUENCY PROCEEDINGS)
CASE NO.
PETITION NO.
Court address
Court telephone no.
ORI
MI-
CTN/TCN
SID
DOB
1. In the matter of
name(s), alias(es), DOB
2. At a
preliminary hearing
pretrial
upon the court's own motion,
at the request of the
juvenile,
trial
and
juvenile's attorney,
prosecuting attorney,
IT IS ORDERED:
3. The juvenile shall undergo an evaluation to determine the juvenile's competence to proceed as follows:
(State where the evaluation is to be conducted as specified in MCL 712A.18o.)
4. Further proceedings in this matter are suspended until a determination is made on the juvenile's competency by a qualified
juvenile forensic mental health examiner.
5. The prosecuting attorney shall provide the juvenile's attorney with all information related to the juvenile's competency.
6. Within 10 days of the date of this order, the prosecuting attorney shall submit to the examiner any information considered relevant
to the competency evaluation, including, but not limited to, the name and address of the prosecuting attorney, information about
the alleged offense, and any information about the juvenile's background in the prosecuting attorney's possession.
7. Within 10 days of the date of this order, the juvenile's attorney shall submit to the examiner any information considered relevant
to the competency evaluation, including, but not limited to, the name and address of the juvenile's attorney and information about
the alleged offense. Except as prohibited by law, the juvenile's attorney shall also provide any available records of the juvenile or
other information relevant to the evaluation including, but not limited to, any of the following: psychiatric, school, medical, and child
protective services records.
8. Not later than 30 days after receiving this order, the examiner shall file with the court a written report under MCL 712A.18p(5)
and (6) and that provides the court with an opinion as to whether the juvenile is competent to proceed.
Date
Judge
Bar no.
NOTE: If a competency evaluation is ordered at the preliminary hearing, form JC 10, or an order following the preliminary
hearing, must be prepared.
Do not write below this line - For court use only
MCL 712A.18n, MCL 712A.18o, MCL 712A.18p
JC 107 (10/13)
ORDER FOR COMPETENCY EVALUATION (DELINQUENCY PROCEEDINGS)
JIS CODE: PCS-OCM
TCS- OCMC, OCMD, OCMI
Approved, SCAO
STATE OF MICHIGAN
JUDICIAL CIRCUIT - FAMILY DIVISION
COUNTY
ORDER AFTER HEARING ON COMPETENCY
(DELINQUENCY PROCEEDINGS)
CASE NO.
PETITION NO.
Court address
Court telephone no.
ORI
MI-
CTN/TCN
DOB
SID
1. In the matter of
name(s), alias(es), DOB
2. Date of hearing:
Judge/Referee:
Bar no.
THE COURT FINDS:
3. Based upon the opinions expressed by a qualified juvenile forensic mental health examiner in a report to the court and any
other evidence filed with the court or introduced at the hearing, the juvenile is determined
a. competent to proceed. (Check item 4.)
b. incompetent to proceed. 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. (Check item 5.)
c. incompetent to proceed. The juvenile may be restored to competency in the foreseeable future. The offense for which the
juvenile is charged is
a traffic offense or an offense other than a serious misdemeanor. (Check item 5.)
a serious misdemeanor. (Check item 5. or 6.)
a felony. (Check item 6.) The least restrictive environment for completing restoration is as follows:
IT IS ORDERED:
4. The proceedings shall continue, and all reports submitted under MCL 712A.18n to MCL 712A.18q shall be sealed.
5. The charges against the juvenile are dismissed with prejudice and the juvenile is released to
. All reports submitted under
MCL 712A.18n to MCL 712A.18q shall be sealed.
6. Further proceedings are suspended until such time as the juvenile is restored to competency or until it is determined that the
juvenile cannot be restored to competency.
a. The qualified restoration provider shall provide the following services to restore the juvenile to competency, if possible:
b. This order is valid for 60 days from the initial finding of incompetency (the date in item 2) or until one of the following occurs,
whichever is first: 1) the juvenile has regained competency, 2) the charges are dismissed by the prosecutor, or 3) the juvenile
reaches 18 years of age.
c.The qualified restoration provider shall submit a report to the court and the qualified juvenile forensic mental health examiner
that includes the information required under MCL 712A.18p. The report shall be submitted every 30 days or sooner if and
at the time either of the following occurs: 1) the qualified restoration provider determines the juvenile is competent to proceed,
or 2) there is no substantial probability the juvenile will be competent to proceed within the period of this order.
Date
Judge
Do not write below this line - For court use only
JC 108 (10/13)
ORDER AFTER HEARING ON COMPETENCY (DELINQUENCY PROCEEDINGS)
MCL 712A.18q, MCL 712A.18r(5),
MCL 712A.18s(1)
JIS CODE: PCS-RSO
TCS-RORI
Approved, SCAO
STATE OF MICHIGAN
EX PARTE RENEWAL OF
RESTORATION ORDER
(DELINQUENCY PROCEEDINGS)
JUDICIAL CIRCUIT - FAMILY DIVISION
COUNTY
CASE NO.
PETITION NO.
Court address
Court telephone no.
1. In the matter of
name(s), alias(es), DOB
THE COURT FINDS:
2. A restoration order was entered on
and expires in not less than 14 days.
Date
3. The qualified restoration provider has recommended that the restoration order be renewed for another 60 days.
4. There is a substantial probability that the juvenile will be competent to proceed within the period of the renewed order.
IT IS ORDERED:
5. The restoration order is renewed for another 60 days starting
and is valid for not more than
Date
120 days from the initial finding of incompetency or until one of the following occurs, whichever is first: 1) the juvenile has regained
competency, 2) the charges are dismissed by the prosecutor, or 3) the juvenile reaches 18 years of age.
6. The qualified restoration provider shall submit a report to the court and the qualified juvenile forensic mental health examiner that
includes the information required under MCL 712A.18p. The report shall be submitted every 30 days or sooner if and at the time
either of the following occurs: 1) the qualified restoration provider determines the juvenile is competent to proceed, or 2) there is
no substantial probability the juvenile will be competent to proceed within the period of this order.
Date
Judge
Do not write below this line - For court use only
JC 109 (10/13)
EX PARTE RENEWAL OF RESTORATION ORDER (DELINQUENCY PROCEEDINGS)
MCL 712A.18s(3)
JIS CODE: PCS-ORR
TCS-RORD
Approved, SCAO
STATE OF MICHIGAN
JUDICIAL CIRCUIT - FAMILY DIVISION
COUNTY
ORDER FOLLOWING REPORT
ON RESTORATION
(DELINQUENCY PROCEEDINGS)
CASE NO.
PETITION NO.
Court address
Court telephone no.
ORI
MI-
CTN/TCN
SID
DOB
1. In the matter of
name(s), alias(es), DOB
THE COURT FINDS:
2. An order was entered by this court to restore the juvenile to competency.
3. a. The qualified restoration provider has reported that there is substantial probability that the juvenile will remain incompetent
to proceed. (Check item 5.)
b. The following material allegations of the petition are dismissed because the juvenile was found incompetent.
DISMISSED
Count Incompetent
CHARGE CODE(S)
MCL Citation/PACC Code
ALLEGATIONS
c. The juvenile will likely remain incompetent to proceed for the foreseeable future or within the period of the restoration order.
4. The qualified restoration provider has reported that the juvenile is competent to stand trial.
(Check item 6.)
IT IS ORDERED:
5. The charges against the juvenile are dismissed. All reports submitted under MCL 712A.18n to MCL 712A.18q shall be sealed.
a. The juvenile is released to
Name(s) of parent(s), legal guardian, or legal custodian
.
b. Civil commitment proceedings shall be initiated as allowed under MCL 330.1498d.
6. The next hearing date is
Date
Date
.
Judge
Bar no.
Do not write below this line - For court use only
JC 110 (10/13)
ORDER FOLLOWING REPORT ON RESTORATION (DELINQUENCY PROCEEDINGS)
MCL 712A.18s(4)
SAMPLE MOTIONS
PROSECUTOR’S MOTION FOR COMPETENCY EVALUATION REGARDING
JUVENILE UNDER 10 YEARS OLD
STATE OF MICHIGAN
IN THE FAMILY COURT FOR THE COUNTY OF _________________
______________________________________
In the Matter of
JUDGE’S NAME
JUVENILE’S NAME
______________________________________
File Number:
Prosecutor’s Name (P00000)
Prosecutor’s Office
Address info
Phone Number
Respondent Attorney’s Name (P00000)
Attorney for Juvenile
Address info
Phone Number
GAL Information (if the court appoints one)
______________________________________
PROSECUTOR’S MOTION FOR COMPETENCY EVALUATION
NOW COMES _(Attorney), (Specific ) County Assistant Prosecutor, on behalf of the
People of the State of Michigan, to file this motion seeking a competency evaluation of the
Respondent Minor, (MINORS NAME), and states in support as follows:
1. That the Respondent Minor has been charged with (insert crime here), a
(misdemeanor/felony).
2. That at the time of the alleged offense, the Respondent Minor was less than 10 years
old.
3. That Pursuant to Public Act 540 of 2012, Section 1062, a juvenile less than 10 years
of age is presumed incompetent to proceed.
4. That when there is a bona fide doubt about the competency of a minor, an evaluation
must be done before subjecting the minor to the adjudicative process. People v
Carey (In re Carey), 241 Mich App 222 2000.
5. That in the interest of due process and fair treatment, a competency evaluation is
necessary to determine if the juvenile is competent to stand trial, and or to assist
(his/her) attorney in preparing a defense.
30
WHEREFORE the People of the State of Michigan, by and through (Prosecutor’s Name
& Title) respectfully requests that this court order a competency evaluation of the respondent
minor, (minor’s name).
Dated: _______________
_____________________________
(Prosecutor’s Name & P Number)
Office Address
31
SAMPLE MOTION OF PROSECUTOR’S REQUEST FOR INDEPENDENT
COMPETENCY EVALUATION
STATE OF MICHIGAN
IN THE FAMILY COURT FOR THE COUNTY OF ___________
______________________________________
In the Matter of
Angelo Joseph Squires
DOB 08/07/2003
______________________________________
File Number: 14-0000-DL
PROSECUTOR’S MOTION FOR INDEPENDENT COMPETENCY EVALUATION
NOW COMES (Attorney), (Specific) County Assistant Prosecutor, on behalf of the
People of the State of Michigan to file this motion seeking an independent competency
evaluation to assess the Respondent Minor’s competency to stand trial, and states in support as
follows:
1. That the Respondent Minor has been charged with:
a. Count 1 - Animals – Killing/Torturing, a Felony punishable by 4 years
imprisonment and/or $5000 fine, and/or 500 hours of community service.
b. Count 2 – Malicious Destruction of Personal Property - $200 or more but less
than $1000, a Misdemeanor punishable by 1 year of imprisonment and/or $ 2000
fine or 3 times the amount of destruction or injury, whichever is greater.
c. Count 3 – Larceny by Conversion - $200 or more but less than $1000, a
Misdemeanor punishable by 1 year of imprisonment and/or $ 2000 fine or 3 times
the value of the property stolen, whichever is greater
2. That at the time of the alleged offense, the Respondent Minor was over 10 years old.
3. That Pursuant to Public Act 540 of 2012, Section 1062, a juvenile older than 10
years of age is presumed competent to proceed.
4. That when there is a bona fide doubt about the competency of a minor, an evaluation
must be done before subjecting the minor to the adjudicative process. People v
Carey (In re Carey), 241 Mich App 222 2000.
5. That a competency evaluation in this matter was done, and completed by Daniel H.
Swerdlow-Freed, Ph.D on __________.
6. That MCL 330.2068 requires the Court to schedule a hearing on the issue of the
juvenile’s competency no later than 30 days after the report has been filed.
32
7. That MCL 330.2068 affords the parties to this proceeding an opportunity to dispute
the competency findings, and present other evidence regarding the juvenile's
mental condition.
8. That at this time, the People of the State of Michigan dispute the findings of Dr.
Freed; and request an independent evaluation of the minor child.
9. That the interests of justice and fair treatment dictate that the People be afforded an
opportunity to gather additional evidence regarding the juvenile’s mental condition
and competency to stand trial for presentation at the MCL 330.2068 hearing.
10. That a reasonable extension of the 30 day time frame be granted to allow for
arrangements to be made for the independent evaluation to be conducted in
compliance with MCL 330.2066.
WHEREFORE the People of the State of Michigan, by and through (Attorney) Assistant
Prosecutor respectfully request that this Court order the Respondent Minor to appear for an
independent evaluation of the minor’s competency with a qualified examiner of the People’s
choosing. In addition, the People request a reasonable extension of the 30 day time frame
requiring a competency hearing to allow for the evaluation to be completed.
Dated: _______________
_____________________________
Attorney (P0000)
Address
Telephone Number
33
RESPONDENT’S SAMPLE MOTION FOR REQUESTING COMPETENCY EVALUATION
FOR JUVENILE OVER THE AGE OF 10 YEARS OLD.
STATE OF MICHIGAN
IN THE FAMILY COURT FOR THE COUNTY OF _________________
______________________________________
In the Matter of
JUDGE’S NAME
JUVENILE’S NAME
______________________________________
File Number:
Prosecutor’s Name (P00000)
Prosecutor’s Office
Address info
Phone Number
Respondent Attorney’s Name (P00000)
Attorney for Juvenile
Address info
Phone Number
GAL Information (if the court appoints one)
______________________________________
RESPONDENT’S MOTION FOR COMPETENCY EVALUATION
NOW COMES the Respondent Minor, (child’s name), by and through (his/her) attorney,
(attorney’s Name), and respectfully requests that this Honorable Court enter an order for a
competency evaluation and states in support as follows:
1. That the Respondent Minor has been charged with (insert crime here), a
(misdemeanor/felony).
2. That at the time of the alleged offense, the Respondent Minor was over the age of 10
years old.
3. That Pursuant to Public Act 540 of 2012, Section 1062, a juvenile 10 years of age or
older is presumed to proceed unless the issue of competency is raised by a party.
4. A competency evaluation is requested by Respondent to determine his/her ability to
participate in further legal proceedings. A criminal defendant’s competence to stand
trial or participate in other criminal proceedings may be raised by a party or the court
at any time during the proceedings. MCL 330. 2062 (2).
5. That when there is a bona fide doubt about the competency of a minor, an evaluation
must be done before subjecting the minor to the adjudicative process. People v
Carey (In re Carey), 241 Mich App 222 2000.
34
6. That a trial court has a duty to order a competency evaluation if “facts are brought to
its attention which raise a ‘bona fide doubt’ as to the defendant’s competence.”
People v Harris, 185 Mich App 100 (1990).
7. That in the interest of due process and fair treatment, a competency evaluation is
necessary to determine if the juvenile is competent to stand trial, and or to assist
(his/her) attorney in preparing a defense.
WHEREFORE Counsel for the Respondent Minor respectfully requests that this court
order a competency evaluation of the respondent minor, (minor’s name).
Dated: _______________
___________________________________
(Respondent Counsel Name & P Number)
Office Address
35
SAMPLE QUESTIONS FOR COMPETENCY EXPERT
__Name
__Occupation
__Title
__Where are you employed?
__How long have you been employed in that capacity?
__Where do you primarily practice your profession?
__Are you licensed to practice psychology in the State of Michigan?
__What is your educational background?
__When did you receive your degrees?
__In your profession, do you specialize in any specific areas? What areas?
__Do you hold any special licenses? What are those in?
__Do you currently hold, or have you held any board certifications?
__If so, what areas are you board certified in?
__Do you have any specialized training in the area of juvenile competency?
__Where, when, and from who did you receive this training?
__Have you ever been qualified as an expert witness by a court in the State of Michigan?
__Have you ever been qualified as an expert in the area of competency?
__Do you belong to any professional organizations? What organizations?
__Have you published any articles? What articles have you published?Are you a qualified
mental health examiner or provider?
__What tests are you trained to administer?
__Are you able to speak to the validity and reliability of those tests?
__Are you familiar with the juvenile in this case?
__How old is the juvenile?
__When did you meet with the juvenile?
__Did you conduct an evaluation?
__What assessment procedures, techniques and tests were used?
__Where did you conduct the evaluation? What were the conditions? (Outpatient/inpatient)
__What information did you receive prior to conducting the evaluation?
__Who did you receive the information from?
__Did you review any medical, educational and court records?
__What social, clinical, developmental and history did you receive?
__Has the child been diagnosed with a mental illness, developmental disability or cognitive
impairment?
__Is the child on medication? What type?
__Does medication have any impact on the juvenile’s mental state and behavior?
__Did you assess the juvenile’s mental status? IQ?
__Please describe the juvenile’s maturity level, developmental stage, and decision-making
abilities.
__Does any other factor affect the juvenile’s competence?
__What is your recommendation concerning the juvenile’s competency to participate in the
delinquency proceeding?
36
__Can the juvenile rationally understand and appreciate the nature and object of the
proceedings?
__Does the juvenile understand the role of the participants in the court process?
__Does the juvenile understand the adversarial nature of the process?
__Does the juvenile appreciate the charges and understand the seriousness of the charges?
__Does the juvenile understand and realistically appreciate the likely outcomes?
__Does the juvenile have the ability to engage in forward thinking into the future?
__Is the juvenile capable assisting his/her attorney in preparation of the case?
__Can the juvenile describe the facts and events pertaining to the charge?
__Does the juvenile have the ability to consider the impact of his/her actions on others?
__Does the juvenile have the ability to verbally articulate or express himself/herself coherently?
__Does the juvenile have logical decision-making abilities?
__Can the juvenile participate in multi-factored problem-solving?
__Does the juvenile have the ability to take several factors into consideration in making a
decision?
__Does the juvenile have the ability to reason and weigh consequences, plea negotiations,
waivers and trial strategies?
__Does the juvenile have the ability to display appropriate courtroom behavior?
__What is your opinion about the juvenile’s competency to proceed?
__If the juvenile is not competent to proceed, what is the nature of the psychiatric or
psychological disorder or cognitive impairment?
__What is the prognosis for restoring the juvenile to competency?
__What services are needed to restore the juvenile to competency?
__What is the projected time from for the restoration to occur?
__What is the least restrictive environment for the restoration?
37
TIPS FOR WORKING WITH THE COMPETENCY EVALUATOR
1. Be specific in defining what is required of the examiner. (Competency Evaluation,
Criminal Responsibility Evaluation, Dispositional Evaluation, Risk Assessment,
Restoration Recommendation, or a combination of the above-noted evaluations.)
A criminal responsibility evaluation for adults focuses on the defendant’s state of mind at
the time of the offense. MCL 768.21a, as amended effective October 1, 1994, indicates
that “An individual is legally insane if, as the result of mental illness as defined in
Section 400a of the Mental Health Code, Act No. 258 of the Public Acts of 1974, being
Section 330.1400a of the Michigan Compiled Laws, or as a result of being mentally
retarded as defined in Section 500 (h) of the Mental Health Code, Act No. 258, of the
Public Acts of 1974, being Section 330.1500 of the Michigan Compiled Laws, that
person lacks substantial capacity either to appreciate the nature and quality or the
wrongfulness of his/her conduct or to conform his/her conduct to the requirements of the
law. For delinquency matters, the law is silent regarding the issue and use of criminal
responsibility evaluations.
2. Clarify issues, terms, and language that may not be understood with the examiner.
3. Check reports to ensure statutory requirements concerning content.
4. Provide all required records, documents, etc. for evaluator consideration.
5. Have juvenile and parents sign and provide all necessary releases of information.
6. Spend time reviewing testing information with the examiner prior to a court hearing.
7. Be prepared to request an adjournment if documentation cannot be timely secured for
production to the examiner.
8. Inform the evaluator of the restoration and treatment options available in the area.
9. If the evaluator will be needed to testify, work with the evaluator to secure attendance at
a hearing with minimal disruption to clinical practice.
10. Include evaluators in the development of effective, reliable and valid restoration and
treatment programs.
38
RESEARCH AND OUT OF STATE INFORMATION
Michigan stakeholders have made it a priority to use research to inform the juvenile competency
laws. The states of Virginia, Ohio, Florida, and California are looked at as systems that Michigan can
learn from in the development of its best practice ideals. It is important to note, though, that there are
no “best practice” state models that are currently supported by evidence-based research. Studies
have proven difficult to replicate due to the various services offered by different locales and the
numerous reasons which can deem a child incompetent. The following resources provide an
overview of the current research:
Developing Statues for Competence to Stand Trial in Juvenile Delinquency Proceedings: A Guide for
Lawmakers
Kimberly Larson, J.D., Ph.D., Thomas Grisso, Ph.D.
http://www.modelsforchange.net/publications/330 (full guide)
http://www.modelsforchange.net/uploads/cms/documents/pra_developing_statutes_finalfactsheet.pdf (brief overview/fact sheet)
Adolescent Legal Competence in Court – Issue Brief
Thomas Grisso, Ph.D., Lawrence Steinberg, Ph.D.
http://www.adjj.org/downloads/9805issue_brief_1.pdf
Competency to Stand Trial in Juvenile Court: Recommendations for Policymakers
National Juvenile Justice Network
http://www.njjn.org/uploads/digital-library/NJJN_MfC_Juvenile-Competency-to-StandTrial_FINAL-Nov2012.pdf
Restoring Youth: A University-Practitioner Model for Remediating Youth Adjudicated Incompetent
to Stand Trial
Regents and Board of Visitors of the University of Virginia
http://avillage.web.virginia.edu/RYApp/Media/Default/documents/Promo%20Package%20(final)%2
011-30-12.pdf
Establishing Juvenile Incompetence Remediation Programs (Virginia and Florida)
Mental Health and Juvenile Justice Collaborative for Change
http://cfc.ncmhjj.com/resources/competence-to-stand-trial/guidance-from-the-field/establishingjuvenile-incompetence-remediation-programs/
Where Two Roads Meet: Restoration of Competence to Stand Trial from a Clinical Perspective
Debra Pinals, M.D.
http://www.nesl.edu/userfiles/file/nejccc/vol31/1/pinals.pdf
FOR MORE INFORMATION, CONTACT:
State Bar of Michigan Children’s Law Section, www.michbar.org
Michigan Council on Crime and Delinquency, www.miccd.org
Michigan Department of Community Mental Health, http://www.michigan.gov/mdch
Michigan State Court Administrative Office, www.courts.mi.gov
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