WEST virginia legislature

2020 regular session

Introduced

Senate Bill 711

By Senator Trump

[Introduced February 5, 2020; referred
to the Committee on the Judiciary]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §27-6B-1, §27-6B-2, §27-6B-3, §27-6B-4, §27-6B-5, §27-6B-6, §27-6B-7, §27-6B-8, §27-6B-9, and §27-6B-10, all relating generally to the juvenile jurisdiction of circuit courts; establishing procedures for determining competency and criminal responsibility in juvenile court proceedings; and clarifying distinctions between juvenile court and adult jurisdiction in matters of competence and criminal responsibility.

Be it enacted by the Legislature of West Virginia:

article 6B. competency and responsibility of juvenile respondents.

§27-6B-1. Definitions.

 As used in this article:

“Department” means the Department of Health and Human Resources.

“Juvenile” means a person under the juvenile jurisdiction of a circuit court.

“Qualified forensic evaluator” means either a qualified forensic psychiatrist or a qualified forensic psychologist as defined in this section.  A qualified forensic evaluator may not perform a forensic evaluation on an individual under this chapter if the qualified forensic evaluator has been the individual's treating psychologist or psychiatrist within one year prior to any evaluation order.

“Qualified forensic psychiatrist” means:

(a) A psychiatrist licensed under the laws in this state to practice medicine who has completed post-graduate education in psychiatry in a program accredited by the Accreditation Council of Graduate Medical Education; and

(b) Board eligible or board certified in forensic psychiatry by the American Board of Psychiatry and Neurology, or actively enrolled in good standing in a West Virginia training program accredited by the Accreditation Council of Graduate Medical Education, to make the evaluator eligible for board certification by the American Board of Psychiatry and Neurology in forensic psychiatry, or has two years of experience in completing court-ordered forensic criminal evaluations, including having been qualified as an expert witness by a West Virginia circuit court.

“Qualified forensic psychologist” means:

(a) A licensed psychologist licensed under the laws of this state to practice psychology; and

(b) Board eligible or board certified in forensic psychology by the American Board of Professional Psychology, or actively enrolled in good standing in a West Virginia training program approved by the American Board of Forensic Psychology, to make the evaluator eligible for board certification in forensic psychology, or has at least two years of experience in performing court-ordered forensic criminal evaluations, including having been qualified as an expert witness by a West Virginia circuit court.

§27-6B-2. Competency of juvenile to proceed; cause for appointment of qualified forensic evaluator; written report; observation period.

(a) When a court has reasonable cause to believe that a person under the juvenile jurisdiction of the circuit court may be incompetent to stand trial, it shall, sua sponte or upon motion filed by the state or by or on behalf of the juvenile, at any stage of the proceedings, order a forensic evaluation of the competency to stand trial to be conducted by one or more qualified forensic psychiatrists, or one or more qualified forensic psychologists. If a court or other judicial officer orders both a competency evaluation and a criminal responsibility or diminished capacity evaluation, the competency evaluation shall be performed first, and if a qualified forensic evaluator is of the opinion that a juvenile is not competent to stand trial, no criminal responsibility or diminished capacity evaluation may be conducted without further order of the court. The initial forensic evaluation may not be conducted at a state inpatient mental health facility unless the juvenile resides in that facility.

(b) The court shall require the party making the motion for the evaluation, and other parties as the court considers appropriate, to provide to the qualified forensic evaluator appointed under subsection (a) of this section any information relevant to the evaluations within 10 business days of its evaluation order. The information shall include, but not be limited to:

(1) A copy of the petition;

(2) Information pertaining to the alleged conduct underlying the petition, including statements by the juvenile made to the police, investigative reports and transcripts of preliminary hearings, if any;

(3) Any available psychiatric, psychological, medical or social records that are considered relevant;

(4) A copy of court records related to the juvenile; and

(5) If the evaluations are to include a diminished capacity assessment, the nature of any lesser included offenses.

(c) A qualified forensic evaluator shall schedule and arrange for the prompt completion of any court-ordered evaluation which may include record review and an interview with the juvenile, and shall, within 10 business days of the date of the completion of any evaluation, provide to the court a written, signed report of his or her opinion on the issue of competency to stand trial. If it is the qualified forensic evaluator’s opinion that the juvenile is not competent to stand trial, the report shall state whether the juvenile is substantially likely to attain competency within the next three months and, in order to attain competency, whether the juvenile requires inpatient management in a mental health facility. The court may extend the 10-day period for filing the report if a qualified forensic evaluator shows good cause to extend the period, but in no event may the period exceed 30 days. If there are no objections by the state or defense counsel, the court may, by order, dismiss the requirement for a written report if the qualified forensic evaluator’s opinion may otherwise be made known to the court and interested parties.

(d) If the court determines that the juvenile has been uncooperative during the forensic evaluation ordered pursuant to subsection (a) of this section, or there have been one or more inadequate or conflicting forensic evaluations performed pursuant to subsection (a) of this section, and the court has reason to believe that an observation period is necessary in order to determine if a person is competent to stand trial, the court may order: (1) The juvenile be committed to a mental health facility designated by the department for a period not to exceed 15 days, and (2) an additional evaluation be conducted in accordance with subsection (a) of this section by one or more qualified forensic psychiatrists, or a qualified forensic psychiatrist and a qualified forensic psychologist. The court shall order that, at the conclusion of the 15-day observation period, the sheriff of the county wherein the petition was filed shall take immediate custody of the juvenile for transportation and disposition as ordered by the court.

(e) A mental health facility not operated by the state is not obligated to admit and treat a juvenile under this section.

§27-6B-3. Competency of juvenile to stand trial determination; preliminary finding; hearing; evidence; disposition.

(a) Within five days of the receipt of the qualified forensic evaluator’s report and opinion on the issue of competency, the court shall make a preliminary finding on the issue of whether the juvenile is competent to stand trial and, if not competent, whether there is a substantial likelihood that the juvenile will attain competency within the next three months. If the court orders, or if the state or juvenile or juvenile’s counsel within 20 days of receipt of the preliminary findings requests a hearing, then a hearing shall be held by the court within 15 days of the date of the preliminary finding, absent good cause being shown for a continuance. If a hearing order or request is not filed within 20 days, the preliminary findings of the court become the final order.

(b) A juvenile has the right to be present at a hearing to determine a juvenile’s competency to stand trial and to be represented by counsel and introduce evidence and cross-examine witnesses. The juvenile shall be afforded timely and adequate notice of the issues at the hearing and shall have access to all forensic evaluator’s opinions. All rights generally afforded an adult in criminal proceedings shall be afforded to a juvenile in the competency proceedings, except trial by jury.

(c) The court, pursuant to a preliminary finding or hearing on the issue of a juvenile’s competency to stand trial and with due consideration of any forensic evaluation conducted pursuant to §27-6B-2 and §27-6B-2 of this code, shall make a finding of fact upon a preponderance of the evidence as to the juvenile’s competency to stand trial based on whether the juvenile has sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding and whether he or she has a rational as well as a factual understanding of the proceedings and the allegations against him or her.

(d) If, at any point in the proceedings, the juvenile is found competent to stand trial, the court shall forthwith proceed with the action.

(e) If, at any point in the proceedings, the juvenile is found not competent to stand trial, the court shall at the same hearing, upon the evidence, make further findings as to whether there is a substantial likelihood that the juvenile will attain competency within the next ensuing three months.

(f) If, at any point in the proceedings, the juvenile is found not competent to stand trial and is found substantially likely to attain competency, the court shall in the same order, upon the evidence, make further findings as to whether the juvenile requires, in order to attain competency, inpatient management in a mental health facility. If inpatient management is required, the court shall order the juvenile be committed to an inpatient mental health facility designated by the department to attain competency to stand trial and for a competency evaluation. The term of this commitment may not exceed three months from the time of entry into the facility. However, upon request by the chief medical officer of the mental health facility and based on the requirement for additional management to attain competency to stand trial, the court may, prior to the termination of the three-month period, extend the period up to nine months from entry into the facility. A forensic evaluation of competency to stand trial shall be conducted by a qualified forensic evaluator and a report rendered to the court, in like manner as §27-6B-2(a) and §27-6B-2(c), of this code, every three months until the court determines the juvenile is not competent to stand trial and is not substantially likely to attain competency.

(g) (1) If, at any point in the proceedings, the juvenile is found not competent to stand trial and is found not substantially likely to attain competency, and (2) if the petition alleges commission of a misdemeanor or felony if committed by an adult which is not a crime of violence against a person, the petition shall be dismissed. The dismissal order may, however, be stayed for 20 days to allow civil commitment proceedings to be instituted by the prosecutor pursuant to §27-5-1 et seq. of this chapter. The juvenile shall be immediately released from any inpatient facility unless civilly committed.

(h)(1) If, at any time during the proceedings, the court finds by a preponderance of the evidence that the juvenile is presently suffering from a mental disease or defect which renders him or her unable to understand the nature and consequences of the proceedings and to assist properly in his or her defense, the court shall commit the juvenile to a mental health facility designated by the Secretary of the Department of Health and Human Resources.

(2)  Commitment shall be for a reasonable time, not to exceed 120 days for a determination as to whether there is a substantial probability that in the foreseeable future the juvenile will obtain competence.

(3) If it is determined that there is a substantial probability that the juvenile can regain competence then the juvenile may be ordered to remain in a mental health facility for an additional reasonable time until he or she attains competence or the pending charges are disposed of according to law, whichever is earlier in time: Provided, That the juvenile may not be held in the mental health facility for continued treatment in excess of 240 days.

(4) If, at the end of the time period for continued treatment ordered under subsection, the juvenile’s condition has not attained competence, the charges shall be dismissed and the juvenile released unless civil commitment proceedings have been initiated pursuant to §27-5-1 et seq of this code.

(i) If the juvenile has been ordered to a mental health facility pursuant to subsection (h) of this section and the court receives notice from the medical director or other responsible official of the mental health facility that the juvenile no longer constitutes a significant danger to self or others, the court shall conduct a hearing within 30 days to consider evidence, with due consideration of the qualified forensic evaluator’s dangerousness report or clinical summary report to determine if the juvenile shall be released to a less restrictive environment. The court may order the release of the juvenile only when the court finds that the juvenile is no longer a significant danger to self or others. When a juvenile’s dangerousness risk factors associated with mental illness are reduced or eliminated as a result of any treatment, the court may make the continuation of appropriate treatment, including medications, a condition of the juvenile’s release from inpatient hospitalization. The court shall maintain jurisdiction of the juvenile in accordance with this subsection. Upon notice that a juvenile, ordered to a mental health facility pursuant to subsection (h) of this section who is released on the condition that he or she continues treatment does not continue his or her treatment, the prosecuting attorney shall, by motion, request the court to reconsider the juvenile’s release. Upon a showing that the juvenile is in violation of the conditions of his or her release, the court shall reorder the juvenile to a mental health facility under the authority of the department which is the least restrictive setting that will allow for the protection of the public.

(j) The prosecuting attorney may, due to consideration of any chief medical officer’s or forensic evaluator’s reports by motion, cause the competency of a juvenile subject to the court’s jurisdiction pursuant to subsection (h) of this section to stand trial or released pursuant to subsection (i) of this section, be determined by the court while the juvenile remains under the jurisdiction of the court, and in which case the court may order a forensic evaluation of competency to stand trial be conducted by a qualified forensic evaluator and a report rendered to the court in like manner as §27-6B-2(a) and §27-6B-2(c) of this code.

(k) Any juvenile found not competent to stand trial may at any time petition the court for a hearing on his or her competency.

(l) Notice of court findings of a juvenile’s competency to stand trial, of commitment for inpatient management to attain competency, of dismissal of charges, of order for inpatient management to protect the public, of release or conditional release, or any hearings to be conducted pursuant to this section shall be sent to the prosecuting attorney, the juvenile and his or her counsel, and the mental health facility. Notice of court release hearing or order for release or conditional release pursuant to subsection (i) of this section shall be made available to the victim or next of kin of a deceased victim of the behavior upon which the petition was based. The burden is on the victim or next of kin of a deceased victim to keep the court apprised of his or her current mailing address.

(m) A mental health facility not operated by the state is not obligated to admit or treat a juvenile under this section.

§27-6B-4. Criminal responsibility or diminished capacity evaluation; court jurisdiction over persons found not guilty by reason of mental illness.

(a) If the court finds, upon hearing evidence or representations of counsel for the juvenile, that there is probable cause to believe that his or her criminal responsibility or diminished capacity will be a significant factor in his or her defense, the court shall appoint one or more qualified forensic psychiatrists or qualified forensic psychologists to conduct a forensic evaluation of the juvenile’s state of mind at the time of the alleged offense. However, if a qualified forensic evaluator is of the opinion that the juvenile is not competent to stand trial then no criminal responsibility or diminished capacity evaluation may be conducted until the court determines the juvenile to be competent. The forensic evaluation may not be conducted at a state inpatient mental health facility unless the juvenile has been ordered to a mental health facility in accordance with §27-6B-2 (c), or §27-6B-3(f) or §27-6B-3(h) of this code. To the extent possible, qualified forensic evaluators who have conducted evaluations of competency under §27-6B-2 (a) of this code shall be used to evaluate criminal responsibility or diminished capacity under this subsection.

(b) The court shall require the party making the motion for the evaluations, and other parties as the court considers appropriate, to provide to the qualified forensic evaluator appointed under subsection (a) of this section any information relevant to the evaluation within 10 business days of its evaluation order. The information shall include, but not be limited to:

(1) A copy of the petition;

(2) Information pertaining to the alleged conduct underlying the petition, statements by the juvenile made to the police, investigative reports, and transcripts of preliminary hearings, if any;

(3) Any available psychiatric, psychological, medical or social records that are considered relevant;

(4) A copy of court records related to the juvenile; and

(5) If the evaluation is to include a diminished capacity assessment, the nature of any lesser included offenses.

(c) A qualified forensic evaluator shall schedule and arrange within 15 days of the receipt of appropriate documents the completion of any court-ordered evaluation which may include record review and juvenile interview and shall, within 10 business days of the date of the completion of any evaluation, provide to the court a written, signed report of his or her opinion on the issue of criminal responsibility and if ordered, on diminished capacity. The court may extend the 10-day period for filing the report if a qualified forensic evaluator shows good cause to extend the period, but in no event may the period exceed 30 days. If there are no objections by the state or defense counsel, the court may, by order, dismiss the requirement for a written report if the qualified forensic evaluator's opinion may otherwise be made known to the court and interested parties.

(d) If the court determines that the juvenile has been uncooperative during a forensic evaluation ordered pursuant to subsection (a) of this section or there are inadequate or conflicting forensic evaluations performed pursuant to subsection (a) of this section, and the court has reason to believe that an observation period and additional forensic evaluation or evaluations are necessary in order to determine if a juvenile was criminally responsible or acting under diminished capacity, the court may order the juvenile be admitted to a mental health facility designated by the department for a period not to exceed 15 days and an additional evaluation be conducted and a report rendered in like manner as subsections (a) and (b) of this section by one or more qualified forensic psychiatrists or one or more qualified forensic psychologists. At the conclusion of the observation period, the court shall enter a disposition order and the sheriff of the county where the juvenile was charged shall take immediate custody of the juvenile for transportation and disposition as ordered by the court.

(e) If the verdict in a trial upon a juvenile petition is a judgment of not guilty by reason of mental illness for a misdemeanor or felony crime of violence against the person, the court shall determine on the record the date at which the juvenile attains the age of 21. The juvenile shall remain under the court’s jurisdiction until the reaching the age of 21 or until discharged by the court. The court shall commit the juvenile to a mental health facility designated by the department that is the least restrictive environment to manage the juvenile and that will allow for the protection of the public. Notice of the end date of the juvenile jurisdiction of the circuit court shall be provided to the mental health facility. The court shall order a qualified forensic evaluator to conduct a dangerousness evaluation to include dangerousness risk factors to be completed within 30 days of admission to the mental health facility and a report rendered to the court within 10 business days of the completion of the evaluation. The medical director of the mental health facility shall provide the court a written clinical summary report of the juvenile’s condition at least semi-annually during the time of the court’s jurisdiction. The court’s jurisdiction continues an additional 10 days beyond expiration due to age to allow civil commitment proceedings to be instituted by the prosecutor pursuant to §27-5-1 et seq. of this code. The juvenile shall then be immediately released from the facility unless civilly committed.

(f) In addition to any court-ordered evaluations completed pursuant to §27-6B-2, §27-6B-3 or §27-6B-4 of this code, the juvenile or the state has the right to an evaluation or evaluations by a forensic evaluator or evaluators of his or her choice and at his or her expense.

(g) A mental health facility not operated by the state is not required to admit or treat a juvenile under this section.

§27-6B-5. Release of juvenile to less restrictive environment; discharge from jurisdiction of the court.

(a) If, at any time prior to the expiration of the court’s jurisdiction, the chief medical officer or responsible official of the mental health facility to which a juvenile has been ordered pursuant to §27-6B-4(e) of this code, believes that the juvenile is no longer mentally ill or does not have significant dangerousness risk factors associated with juvenile mental illness, he or she shall file with the court notice of the belief and shall submit evidence in support of the belief to include a forensic evaluation dangerousness report conducted as in §27-6B-4(e) of this code, and recommendations for treatment, including medications, that reduce or eliminate the dangerousness risk factors associated with mental illness. The court shall hold a hearing within 30 days of receipt of the notice to consider evidence as to whether the juvenile shall be released from the mental health facility to a less restrictive environment. Notice of the hearing shall be made available to the prosecuting attorney, the juvenile and his or her counsel and the mental health facility. If, upon consideration of the evidence, the court determines that a juvenile may be released from a mental health facility to a less restrictive setting, the court shall order, within 15 days of the hearing, the juvenile be released upon terms and conditions the court considers appropriate for the safety of the community and the well-being of the juvenile. Any terms and conditions imposed by the court shall be protective and therapeutic in nature, and not punitive. When a juvenile's dangerousness risk factors associated with mental illness are reduced or eliminated as a result of treatment, the court may make the continuance of appropriate treatment, including medications, a condition of the juvenile’s release from inpatient hospitalization. The court shall maintain jurisdiction of the juvenile. Upon notice that a juvenile released on the condition that he or she continues appropriate treatment does not continue his or her treatment, the prosecuting attorney responsible for the charges brought against the juvenile at trial shall, by motion, request  the court to reconsider the juvenile’s release. Upon a showing that the juvenile is in violation of the conditions of his or her release, the court may reorder the juvenile to a mental health facility designated by the department which is the least restrictive setting appropriate to manage the juvenile and protect the public.

(b) No later than 30 days prior to the release from a mental health facility or other management setting of a juvenile because of the expiration of the court’s jurisdiction as set in accordance with §27-6B-4(e) of this code, if the juvenile’s physician, psychologist, chief medical officer or other responsible party is of the opinion that the juvenile’s mental illness renders the juvenile to be likely to cause serious harm to self or others, the supervising physician, psychologist, chief medical officer or other responsible party shall notify the court who shall promptly notify the prosecuting attorney in the county of the court having jurisdiction of the opinion and the basis for the opinion. Following notification, the prosecuting attorney may file, within 10 days, a civil commitment application against the juvenile pursuant to §27-5-1 et seq. of this code.

§27-6B-6. Judicial hearing of juvenile’s defense other than not guilty by reason of mental illness.

If a juvenile who has been found to be not competent to stand trial believes that he or she can establish a defense of not guilty to the petition pending against him or her, other than the defense of not guilty by reason of mental illness, the juvenile may request an opportunity to offer a defense thereto on the merits before the court. If the court grants such a request, the evidence of the juvenile and of the state shall be heard by the court sitting without a jury. If, after hearing the evidence, the court finds insufficient evidence to support an adjudication, it shall dismiss the indictment and order the release of the juvenile from custody. The release order, however, may be stayed for 10 days to allow civil commitment proceedings to be instituted by the prosecutor pursuant to §27-5-1 et seq. of this code: Provided, That a juvenile committed to a mental health facility pursuant to §27-6B-3(f) or §27-6B-3(h) of this code shall be immediately released from the facility unless civilly committed.

§27-6B-7. Release of juvenile during course of juvenile proceedings.

Notwithstanding any finding of incompetence to stand trial under the provisions of this article, the court may at any stage of the proceedings allow the juvenile to be released with or without bail under such conditions as the court deems appropriate.

§27-6B-8. Credit for time; expenses.

(a) If a person is adjudicated delinquent, any time spent in involuntary confinement in a mental health facility as a result of being charged with the crime shall be credited to the sentence.

(b) All inpatient care and treatment shall be paid by the department.

§27-6B-9. Medications and management of court-ordered juveniles.

(a) At any time pursuant to §27-6B-2, §27-6B-3 or §27-6B-4 of this code a juvenile is ordered by a court to a mental health facility, he or she has the right to receive treatment under the standards of medical management.

(b) A person under the juvenile jurisdiction of the circuit court with health care decision-making capacity may refuse medications or other management unless court-ordered to be treated or unless a treating clinician determines that medication or other management is necessary in emergencies or to prevent danger to the person or others.

§27-6B-10. Payment to forensic evaluators.

The department shall pay qualified forensic evaluators for all matters related to conducting a court-ordered forensic evaluation. The department shall develop and implement a process for prompt payment to qualified forensic evaluators. The department shall establish policies and procedures for establishing a maximum rate schedule for each of the four evaluation types (competency to stand trial, criminal responsibility, diminished capacity, dangerousness) to include all efforts towards the completion of each evaluation such as scheduling and administrative tasks, record review, psychological and other testing, interviews, report writing, research, preparation, and consultation. These policies and procedures shall include input from provider representatives as necessary and appropriate. Any rate schedule shall be fair and reasonable. The department shall consider requests for payment in excess of established rates or other expenses for good cause shown.

NOTE: The purpose of this bill is to codify procedures and standards relating to competency and responsibility of juvenile respondents.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.