(a) In any juvenile matter, as defined in section 46b-121, in which a child or youth is alleged to have committed a delinquent act or an act or omission for which a petition may be filed under section 46b-149, the child or youth shall not be tried, convicted, adjudicated or subject to any disposition pursuant to section 46b-140 or 46b-149 while the child or youth is not competent. For the purposes of this section, a transfer to the regular criminal docket of the Superior Court pursuant to section 46b-127 shall not be considered a disposition. A child or youth is not competent if the child or youth is unable to understand the proceedings against him or her or to assist in his or her own defense.(b) If, at any time during a proceeding on a juvenile matter, it appears that the child or youth is not competent, counsel for the child or youth, the prosecutorial official, or the court, on its own motion, may request an examination to determine the child’s or youth’s competency. Whenever a request for a competency examination is under consideration by the court, the child or youth shall be represented by counsel in accordance with the provisions of sections 46b-135 and 46b-136.(c) A child or youth alleged to have committed an offense is presumed to be competent. The age of the child or youth is not a per se determinant of incompetency. The burden of going forward with the evidence and proving that the child or youth is not competent by a preponderance of the evidence shall be on the party raising the issue of competency, except that if the court raises the issue of competency, the burden of going forward with the evidence shall be on the state. The court may call its own witnesses and conduct its own inquiry.(d) If the court finds that the request for a competency examination is justified and that there is probable cause to believe that the child or youth has committed the alleged offense, the court shall order a competency examination of the child or youth. Competency examinations shall be conducted, within available appropriations, by (1) a clinical team constituted under policies and procedures established by the Chief Court Administrator, or (2) if agreed to by all parties, a physician specializing in psychiatry who has experience in conducting forensic interviews and in child and adult psychiatry. Any clinical team constituted under this section shall consist of three persons: A clinical psychologist with experience in child and adolescent psychology, and two of the following three types of professionals:
(A) A clinical social worker licensed pursuant to chapter 383b,(B) a child and adolescent psychiatric nurse clinical specialist holding a master’s degree in nursing, or(C) a physician specializing in psychiatry. At least one member of the clinical team shall have experience in conducting forensic interviews and at least one member of the clinical team shall have experience in child and adolescent psychology. The court may authorize a physician, a clinical psychologist, a child and adolescent psychiatric nurse specialist or a clinical social worker licensed pursuant to chapter 383b, selected by the child or youth, to observe the examination, at the expense of the child or youth or, if the child or youth is represented by counsel appointed through the Public Defender Services Commission, the Office of the Chief Public Defender. In addition, counsel for the child or youth, his or her designated representative and, if the child or youth is represented by a public defender, a social worker from the Division of Public Defender Services, may observe the examination.(e) The examination shall be completed not later than fifteen business days after the date it was ordered, unless the time for completion is extended by the court for good cause shown. The members of the clinical team or the examining physician shall prepare and sign, without notarization, a written report and file such report with the court not later than twenty-one business days after the date of the order. The report shall address the child’s or youth’s ability to understand the proceedings against such child or youth and such child’s or youth’s ability to assist in his or her own defense. If the opinion of the clinical team or the examining physician set forth in such report is that the child cannot understand the proceedings against such child or youth or is not able to assist in his or her own defense, the members of the team or the examining physician must determine and address in their report:
(1) Whether there is a substantial probability that the child or youth will attain or regain competency within ninety days of an intervention being ordered by the court; and(2) the nature and type of intervention, in the least restrictive setting possible, recommended to attain or regain competency. On receipt of the written report, the clerk of the court shall cause copies of such written report to be delivered to counsel for the state and counsel for the child or youth at least forty-eight hours prior to the hearing held under subsection (f) of this section.(f) The court shall hold a hearing as to the competency of the child or youth not later than ten business days after the court receives the written report of the clinical team or the examining physician pursuant to subsection (e) of this section. A child or youth may waive such evidentiary hearing only if the clinical team or examining physician has determined without qualification that the child or youth is competent. Any evidence regarding the child’s or youth’s competency, including, but not limited to, the written report, may be introduced in evidence at the hearing by either the child or youth or the state. If the written report is introduced as evidence, at least one member of the clinical team or the examining physician shall be present to testify as to the determinations in the report, unless the clinical team’s or the examining physician’s presence is waived by the child or youth and the state. Any member of the clinical team shall be considered competent to testify as to the clinical team’s determinations.(g)(1) If the court, after the competency hearing, finds by a preponderance of the evidence that the child or youth is competent, the court shall continue with the prosecution of the juvenile matter.(2) If the court, after the competency hearing, finds that the child or youth is not competent, the court shall determine:
(A) Whether there is a substantial probability that the child or youth will attain or regain competency within ninety days of an intervention being ordered by the court; and(B) whether the recommended intervention to attain or regain competency is appropriate. In making its determination on an appropriate intervention, the court may consider:
(i) The nature and circumstances of the alleged offense;(ii) the length of time the clinical team or examining physician estimates it will take for the child or youth to attain or regain competency;(iii) whether the child or youth poses a substantial risk to reoffend; and(iv) whether the child or youth is able to receive community-based services or treatment that would prevent the child or youth from reoffending.(h) If the court finds that there is not a substantial probability that the child or youth will attain or regain competency within ninety days or that the recommended intervention to attain or regain competency is not appropriate, the court may issue an order in accordance with subsection (k) of this section.(i)(1) If the court finds that there is a substantial probability that the child or youth will attain or regain competency within ninety days if provided an appropriate intervention, the court shall schedule a hearing on the implementation of such intervention within five business days.(2) An intervention implemented for the purpose of restoring competency shall comply with the following conditions:
(A) The period of intervention shall not exceed ninety days, unless extended for an additional ninety days in accordance with the criteria set forth in subsection (j) of this section; and(B) the intervention services shall be provided by the Department of Children and Families or, if the child’s or youth’s parent or guardian agrees to pay for such services, by any appropriate person, agency, mental health facility or treatment program that agrees to provide appropriate intervention services in the least restrictive setting available to the child or youth and comply with the requirements of this section.(3) Prior to the hearing, the court shall notify the Commissioner of Children and Families, the commissioner’s designee or the appropriate person, agency, mental health facility or treatment program that has agreed to provide appropriate intervention services to the child or youth that an intervention to attain or regain competency will be ordered. The commissioner, the commissioner’s designee or the appropriate person, agency, mental health facility or treatment program shall be provided with a copy of the report of the clinical team or examining physician and shall report to the court on a proposed implementation of the intervention prior to the hearing.(4) At the hearing, the court shall review the written report and order an appropriate intervention for a period not to exceed ninety days in the least restrictive setting available to restore competency. In making its determination, the court shall use the criteria set forth in subdivision (2) of subsection (g) of this section. Upon ordering an intervention, the court shall set a date for a hearing, to be held at least ten business days after the completion of the intervention period, for the purpose of reassessing the child’s or youth’s competency.(j)(1) At least ten business days prior to the date of any scheduled hearing on the issue of the reassessment of the child’s or youth’s competency, the Commissioner of Children and Families, the commissioner’s designee or other person, agency, mental health facility or treatment program providing intervention services to restore a child or youth to competency shall report on the progress of such intervention services to the clinical team or examining physician.(2) Upon receipt of the report on the progress of such intervention, the child or youth shall be reassessed by the original clinical team or examining physician, except that if the original team or examining physician is unavailable, the court may appoint a new clinical team that, where possible, shall include at least one member of the original team, or a new examining physician. The new clinical team or examining physician shall have the same qualifications as the original team or examining physician, as provided in subsection (d) of this section, and shall have access to clinical information available from the provider of the intervention services. Not less than two business days prior to the date of any scheduled hearing on the reassessment of the child’s or youth’s competency, the clinical team or examining physician shall submit a report to the court that includes:
(A) The clinical findings of the provider of the intervention services and the facts upon which the findings are made; (B) the clinical team’s or the examining physician’s opinion on whether the child or youth has attained or regained competency or is making progress toward attaining or regaining competency within the period covered by the intervention order; and(C) any other information concerning the child or youth requested by the court, including, but not limited to, the method of intervention or the type, dosage and effect of any medication the child or youth is receiving.(3) Within two business days of the filing of a reassessment report, the court shall hold a hearing to determine if the child or youth has attained or regained competency within the period covered by the intervention order. If the court finds that the child or youth has attained or regained competency, the court shall continue with the prosecution of the juvenile matter. If the court finds that the child or youth has not attained or regained competency within the period covered by the intervention order, the court shall determine whether further efforts to attain or regain competency are appropriate. The court shall make its determination of whether further efforts to attain or regain competency are appropriate in accordance with the criteria set forth in subdivision (2) of subsection (g) of this section. If the court finds that further intervention to attain or regain competency is appropriate, the court shall order a new period for restoration of competency not to exceed ninety days. If the court finds that further intervention to attain or regain competency is not appropriate or the child or youth has not attained or regained competency after an additional intervention of ninety days, the court shall issue an order in accordance with subsection (k) of this section.(k)(1) If the court determines after the period covered by the intervention order that the child or youth has not attained or regained competency and that there is not a substantial probability that the child or youth will attain or regain competency, or that further intervention to attain or regain competency is not appropriate based on the criteria set forth in subdivision (2) of subsection (g) of this section, the court shall:
(A) Dismiss the petition if it is a delinquency or family with service needs petition;(B) vest temporary custody of the child or youth in the Commissioner of Children and Families and notify the Office of the Chief Public Defender, which shall assign an attorney to serve as guardian ad litem for the child or youth and investigate whether a petition should be filed under section 46b-129; or(C) order that the Department of Children and Families or some other person, agency, mental health facility or treatment program, or such child’s or youth’s probation officer, conduct or obtain an appropriate assessment and, where appropriate, propose a plan for services that can appropriately address the child’s or youth’s needs in the least restrictive setting available and appropriate. Any plan for services may include a plan for interagency collaboration for the provision of appropriate services after the child or youth attains the age of eighteen.(2) Not later than ten business days after the issuance of an order pursuant to subparagraph (B) or (C) of subdivision (1) of this subsection, the court shall hold a hearing to review the order of temporary custody or any recommendations of the Department of Children and Families, such probation officer or such attorney or guardian ad litem for the child or youth.(3) If the child or youth is adjudicated neglected, uncared-for or abused subsequent to such a petition being filed, or if a plan for services pursuant to subparagraph (C) of subdivision (1) of this subsection has been approved by the court and implemented, the court may dismiss the delinquency or family with service needs petition, or, in the discretion of the court, order that the prosecution of the case be suspended for a period not to exceed eighteen months. During the period of suspension, the court may order the Department of Children and Families to provide periodic reports to the court to ensure that appropriate services are being provided to the child or youth. If during the period of suspension, the child or youth or the parent or guardian of the child or youth does not comply with the requirements set forth in the plan for services, the court may hold a hearing to determine whether the court should follow the procedure under subparagraph (B) of subdivision (1) of this subsection for instituting a petition alleging that a child is neglected, uncared for or abused. Whenever the court finds that the need for the suspension of prosecution is no longer necessary, but not later than the expiration of such period of suspension, the delinquency or family with service needs petition shall be dismissed.
Conn. Gen. Stat. ยง 46b-128a
( June 12 Sp. Sess. P.A. 12-1, S. 268.)
Added by P.A. 12-0001, S. 268 of the Connecticut Acts of the 2012 Special Session, eff. 10/1/2012.
