Sixty-ninth Legislative Assembly of North Dakota
In Regular Session Commencing Tuesday, January 7, 2025
SENATE BILL NO. 2036
(Legislative Management)
(Juvenile Justice Committee)
AN ACT to create and enact chapter 27-20.5 of the North Dakota Century Code, relating to fitness to
proceed and remediation of juveniles; to amend and reenact section 12.1-04-01, subsections 4
and 5 of section 12.1-04-08, and section 27-20.4-15 of the North Dakota Century Code, relating
to the age of an offender, suspension or dismissal of proceedings, and predispositional
assessment; to provide an appropriation; and to provide an effective date.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. AMENDMENT. Section 12.1-04-01 of the North Dakota Century Code is amended and
reenacted as follows:
12.1-04-01. Juveniles.
1.An individual under the age of ten years is deemed incapable of commission of an offense
defined by the constitution or statutes of this state. The prosecution of an individual as an adult is
barred if the offense was committed while the individual was less than fourteen years of age.
2.An individual ten years of age or older may be assessed for mental fitness or capacity under
this chapter.
SECTION 2. AMENDMENT. Subsection 4 of section 12.1-04-08 of the North Dakota Century Code
is amended and reenacted as follows:
4.If the court determines the defendant currently lacks fitness to proceed and the defendant may
attain fitness to proceed under subsection 12, the court may enter an order for a course of
treatment considering the least restrictive form of treatment therapeutically appropriate.
a.Unless excused by the court, in a proceeding to determine therapy in an attempt to attain
fitness, the defendant shall be represented by trial counsel.
b.If the court finds the individual is not able to retain the services of a tier 1a mental health
professional and that those services are not otherwise available, the court shall authorize
reasonable expenditures from public funds to examine the individual.
c.In a motion hearing to resume prosecution, the state or prosecuting authority must show
by a preponderance of the evidence the defendant has attained fitness to proceed.
SECTION 3. AMENDMENT. Subsection 5 of section 12.1-04-08 of the North Dakota Century Code
is amended and reenacted as follows:
5.If the court orders the defendant committed to a treatment facility in an attempt to attain fitness
to proceed under subsection 12, the court shall provide the special custody and commitment
terms in the order. The special terms of commitment must include an order for the defendant
to accept all nonexperimental, generally accepted medical, psychiatric, or psychological
treatment recommended by the treatment facility, including the use of involuntary treatment
with prescribed medication without the need for a separate commitment under chapter
25-03.1. S. B. NO. 2036 - PAGE 2
a.If the order does not indicate the terms of commitment, the director or superintendent of
the treatment facility may determine the nature of the constraints necessary within the
treatment facility to carry out the order of the court.
b.If the court orders an individual committed for therapeutic treatment to attain fitness to
proceed, the court shall set a date consistent with the timeline established in this section
for a review of the defendant's fitness to proceed. At least sixty days before the date
specified for review, the director or director's designee or the superintendent of the
treatment facility shall inquire as to whether the individual is represented by counsel and
file a written report of the facts ascertained with the court.
SECTION 4. AMENDMENT. Section 27-20.4-15 of the North Dakota Century Code is amended and
reenacted as follows:
27-20.4-15. Predispositional assessment.
1.Before the disposition hearing, the court shall direct the director or designee, to conduct a
predisposition assessment and to prepare a written report for the court, unless waived by the
court.
2.The predisposition assessment must consist of a risk and needs assessment together with
any other appropriate screenings.
3.During the pendency of any proceeding the court may order:
a.The child to be examined at a suitable place by a physician, psychologist, or certified
addiction counselor;
b.The child to be tested by appropriate forensic methods to determine whether the child
has been exposed to a controlled substance or other substance considered injurious to
the child's health;
c.Medical or surgical treatment of a child who is suffering from a serious physical condition
or illness, or alcohol or drug abuse, which in the opinion of a licensed physician requires
prompt treatment, even if the parent, guardian, or other custodian has not been given
notice of a hearing, is not available, or without good cause informs the court of that
person's refusal to consent to the treatment; or
d.An evidence-based risk and needs assessment, mental health screening, or trauma
screening; or
e.The child to be examined to determine the child's competence or criminal responsibility. If
the child is found to lack competency or criminal responsibility the court may:
(1)Dismiss the delinquency proceedings against the child and order the release of the
child to the child's parent, guardian, or legal custodian upon conditions considered
appropriate by the court;
(2)Suspend the delinquency proceedings against the child for a period of up to one
year and order services be provided to the child as an outpatient or inpatient, by
commitment to an institution for persons with intellectual disabilities or mental
illness; or
(3)Dismiss the delinquency proceedings and direct that child in need of protection
proceedings be initiated.
SECTION 5. Chapter 27-20.5 of the North Dakota Century Code is created and enacted as follows: S. B. NO. 2036 - PAGE 3
27 - 20.5 - 01. Definitions.
1."Fitness to proceed" means sufficient present ability to consult with counsel and assist in
preparing the minor's defense with a reasonable degree of rational understanding or a rational
and factual understanding of the nature of the offense and delinquency proceedings against
the minor. A lack of fitness to proceed may result from the presence of any condition, including
mental illness, mental disorder, developmental disability, or developmental immaturity.
2."Minor" means an individual who is:
a.Under the age of eighteen years and is not married; or
b.Eighteen years of age or older with respect to a delinquent act committed while under the
age of eighteen years, and not married, unless an offense is transferred under section
27 - 20.4 - 21.
3."Remediation" means the process of providing learning opportunities, services, and support to
achieve fitness to proceed.
4."Remediation provider" means an individual providing remediation services for minors.
5."Tier 1a mental health professional" is a psychiatrist licensed under chapter 43 - 17 or a
psychologist licensed under chapter 43 - 32.
27 - 20.5 - 02. Age.
1.An individual under the age of ten years is deemed incapable of commission of an offense
defined by the constitution or statutes of this state.
2.An individual ten years of age or older may be assessed for mental fitness or capacity under
this chapter.
27 - 20.5 - 03. Motion for fitness to proceed examination.
1.If there is reason to doubt the minor's fitness to proceed, the court may order on its own
motion, or at the request of the minor, the minor's parent, legal guardian, legal custodian, or
attorney, or the prosecuting attorney, a fitness to proceed examination to determine whether
the minor is fit to proceed if the minor is the subject of a delinquency petition in the court. The
minor's fitness to proceed 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.
2.If there is reason to doubt the minor's fitness to proceed, adjudication may not occur until after
a determination is made on the fitness of the minor to proceed in accordance with this chapter.
27 - 20.5 - 04. Use of previous findings and records - Deflection.
A minor who is found to lack fitness to proceed due to previous judicial findings of lack of fitness to
proceed or considerations from school, medical, or other records within the last twelve months may
have the delinquency proceedings dismissed before a fitness to proceed examination or remediation
services are administered.
27 - 20.5 - 05. Due process.
1.If there is reason to doubt the minor's fitness to proceed, adjudication may not occur until after
a determination is made except the filing of a delinquency petition, until counsel is appointed
and notified in accordance with section 27 - 20.2 - 12 and the minor is found to have the mental
capacity to proceed. S. B. NO. 2036 - PAGE 4
2.After the case proceeds to adjudication or the minor is found to lack fitness to proceed, the
court shall order all of the reports that are submitted under this chapter to be closed to the
public. The court may order the reports be opened for inspection only:
a.For further fitness to proceed or criminal responsibility examination;
b.For statistical analysis;
c.If the records are considered to be necessary to assist in mental health treatment
ordered;
d.For data gathering;
e.For scientific study or other legitimate research;
f.To the state's attorney or minor's counsel for the purpose of an active court case subject
to the prior evaluation; and
g.To an employee or agent of the division of juvenile services or the department of health
and human services, if necessary in the performance of the employee's or agent's duty.
3.If the court orders a report to be open for the purpose of de-identified statistical analysis, data
gathering, or scientific study, the report must remain confidential.
4.Any incriminating statement made by a minor to the tier 1a mental health professional as part
of a fitness to proceed examination may not be used against the minor over objection in any
proceeding.
27 - 20.5 - 06. Fitness to proceed examination.
1.If there is reason to doubt the minor's fitness to proceed, the court shall order the minor to be
examined by a tier 1a mental health professional.
2.This section does not prohibit any party from retaining the party's own qualified tier 1a mental
health professional to conduct additional evaluations at the party's own expense.
3.The fitness to proceed examination must be conducted in the least restrictive environment and
may not be conducted in a treatment facility as defined in section 25 - 03.1 - 02.
4.The court shall order the prosecuting attorney, minor's attorney, and juvenile court staff to
submit any information considered relevant to the fitness to proceed examination to the tier 1a
mental health professional, including:
a.The names and addresses of all attorneys involved;
b.Information about the alleged offense; and
c.Any information about the minor's background which is in the prosecuting attorney's
possession.
5.Except as prohibited by federal law, the court shall require the attorneys and juvenile court
staff to provide any available records regarding the minor and any other information relevant
to the examination to the tier 1a mental health professional, including:
a.Psychiatric records;
b.School records;
c.Medical records; and S. B. NO. 2036 - PAGE 5
d.Child protective services records.
6.The requirement to provide records or information under subsections 4 and 5 does not limit,
waive, or abrogate the work product doctrine or the attorney-client privilege, and release of
records and information under subsections 4 and 5 is subject to the work product doctrine and
the attorney-client privilege.
7.The fitness to proceed examination must occur within twenty days from receipt of materials
identified in subsections 4 and 5 and notice of entry of the order served on the tier 1a mental
health professional.
a.The court may grant up to an additional fifteen days to complete the examination if good
cause is shown.
b.The materials required in subsections 4 and 5 must be disclosed contemporaneously
with the order.
c.The tier 1a mental health professional shall notify the court and request any missing or
additional information within seventy-two hours upon discovery of the missing information
or receiving this information, and the attorneys and juvenile court staff have seven days
to send the information to the tier 1a mental health professional.
8.A tier 1a mental health professional who conducts a fitness to proceed examination shall
submit a written report to the court no later than fifteen days from completing the fitness to
proceed examination. The report must include:
a.A description of the nature, content, and extent of the examination, including:
(1)A description of the assessment procedure, technique, and test used;
(2)Medical, educational, and court records reviewed; and
(3)Social, clinical, developmental, and available legal history.
b.A clinical assessment that includes:
(1)A mental status examination;
(2)The diagnosis and functional impact of mental illness, developmental disability, or
cognitive impairment. If the minor is taking medication, the impact of the medication
on the minor's mental state and behavior;
(3)An assessment of the minor's intelligence and maturity level, when relevant;
(4)The minor's age, developmental state, and decisionmaking abilities; and
(5)Whether the minor has any other factor that affects fitness to proceed.
c.A description of abilities and deficits in the following mental competency functions related
to the minor's fitness to proceed:
(1)The ability to factually and rationally understand and appreciate the nature and
object of the proceedings, including the ability to:
(a)Understand the role of the participants in the court process, including the
roles of the judge, the minor's attorney, the prosecuting attorney, the probation
officer, witnesses, and the jury, and to understand the adversarial nature of
the process;
(b)Appreciate the offense and understand the seriousness of the offense; S. B. NO. 2036 - PAGE 6
(c)Understand and realistically appraise the likely outcomes; and
(d)Extend thinking into the future.
(2)The ability to render meaningful assistance to the minor's attorney in the
preparation of the case, including:
(a)The ability to disclose to an attorney a reasonably coherent description of
facts and events pertaining to the charge, as perceived by the minor;
(b)The ability to consider the impact of the minor's action on others;
(c)Verbal articulation abilities or the ability to express himself or herself in a
reasonable and coherent manner;
(d)Logical decisionmaking abilities, including multifactored problem solving or the
ability to take several factors into consideration in making a decision;
(e)The ability to reason about available options by weighing the consequences,
including distinguishing between a not guilty and guilty plea, weighing pleas,
dispositions, waivers, and strategies; and
(f)The ability to display appropriate courtroom behavior and testify relevantly.
9.The tier 1a mental health professional shall provide the court with a written report about the
minor's fitness to proceed. If the tier 1a mental health professional determines the minor lacks
fitness to proceed, the tier 1a mental health professional shall comment on the nature of any
psychiatric or psychological disorder or cognitive impairment, the prognosis, and the available
services needed to remediate the minor to fitness, if possible, within a projected time frame.
10.The court shall provide copies of the written report to the minor's attorney, the prosecuting
attorney, the parents' attorney and any guardian ad litem for the minor as soon as possible.
27 - 20.5 - 07. Fitness to proceed hearing.
1.The court shall hold a hearing to determine if the minor is fit to proceed no later than ten days
after the report is filed under section 27 - 20.5 - 06. At the hearing, the prosecution and defense
have the right to summon and cross-examine any individual responsible for the report and
introduce other evidence regarding the minor's mental condition or may submit the matter by
written stipulation based on the filed report.
2.If the court finds the minor lacks fitness to proceed and that there is a substantial likelihood the
minor will not attain fitness during the period of the remediation order, the court shall proceed
to disposition under section 27 - 20.5 - 09.
3.The tier 1a mental health professional may appear via reliable electronic means unless
objected to by the parties.
4.If the court finds the minor is fit to proceed, the delinquency proceedings must proceed.
27 - 20.5 - 08. Remediation.
1.If the minor lacks fitness to proceed but the court finds the minor may be remediated to fitness
to proceed within the period of the remediation order:
a.The matter must be dismissed if the offense is an infraction or a class B misdemeanor,
except a class B misdemeanor under chapter 12.1 - 17; or S. B. NO. 2036 - PAGE 7
b.The court may dismiss the matter or suspend the proceedings against the minor if the
offense is a felony, class A misdemeanor, or class B misdemeanor under chapter
12.1 - 17.
2.If the proceedings are suspended because the minor lacks fitness to proceed but the court
finds the minor may be remediated to fitness within the period of the remediation order, then:
a.Before issuing a remediation order, the court shall hold a hearing to determine the least
restrictive available environment for completion of the remediation. The least restrictive
available environment may not be at the state hospital or the life skills and transition
center.
b.The court may issue a remediation order that is valid for sixty days from the date of the
court order finding the child incompetent or until one of the following occurs, whichever
occurs first:
(1)The minor has regained fitness or there is no substantial likelihood the minor will
regain fitness within the period of the order; or
(2)The delinquency proceedings are dismissed.
c.Following issuance of the remediation order, the remediation provider shall submit a
report to the court regarding the progress a minor made in remediation services. The
report must be submitted to the court no later than fourteen days before the expiration of
the sixty - day order or sooner if:
(1)The remediation provider determines the minor no longer lacks fitness to proceed;
or
(2)The remediation provider determines there is no substantial probability the minor
will be fit to proceed within the period of the order.
3.No later than fourteen days before the expiration of the initial sixty - day order, the remediation
provider may recommend to the court that the remediation order be renewed by the court for
another sixty days, if there is a substantial probability the minor will be fit to proceed within the
period of that renewed remediation order. The remediation provider shall include a report of
progress a minor made in remediation services which demonstrates the minor is likely to be
found fit to proceed if a renewal is ordered. The remediation order and any renewed
remediation order may not exceed a total of one hundred twenty days.
27 - 20.5 - 09. Disposition.
1.Except as otherwise provided in this section, upon receipt of a report by the tier 1a mental
health professional that the minor lacks fitness to proceed and there is a substantial likelihood
the minor is unable to be remediated within the period of the remediation order, the court may:
a.Dismiss the delinquency proceedings and release the minor to the minor's parent, legal
guardian, or legal custodian; or
b.Retain jurisdiction and release the minor to the minor's parent, legal guardian, or legal
custodian subject to mental health treatment or services under subsection 2.
2.The court may in its discretion order mental health services or other available services from a
mental health provider be provided to the minor by a community mental health services
program, the department of health and human services, or another appropriate mental health
services provider, subject to the availability of inpatient or outpatient care, for a period not to
exceed sixty days. S. B. NO. 2036 - PAGE 8
a.The court retains jurisdiction over the minor throughout the duration of the order and the
juvenile court officer may assist with referrals, the assessment process, and reporting to
the court.
b.The entity providing services under this subsection shall determine necessary mental
health treatment or services.
3.No later than fourteen days before the expiration of the order for mental health treatment or
services under this subsection or subsection 2, a report by the juvenile court officer must be
provided to the court regarding the minor. The court shall review the report and:
a.Renew the order for another period of mental health treatment or services not to exceed
sixty days. The order for mental health treatment or services and any renewed order may
not exceed a total of one hundred twenty days; or
b.Determine custody of the minor and dismiss the delinquency proceedings against the
minor.
4.If release to the minor's parent, legal guardian, or legal custodian is determined inappropriate
under subsection 1, the court may dismiss the delinquency proceeding and direct proceedings
under chapter 27 - 20.3.
SECTION 6. APPROPRIATION - DEPARTMENT OF HEALTH AND HUMAN SERVICES -
JUVENILE FITNESS TO PROCEED MENTAL HEALTH SERVICES. There is appropriated out of any
moneys in the general fund in the state treasury, not otherwise appropriated, the sum of $500,000, or so
much of the sum as may be necessary, to the department of health and human services for the purpose
of defraying the costs associated with implementing and administering section 5 of this Act, for the
biennium beginning July 1, 2025, and ending June 30, 2027.
SECTION 7. EFFECTIVE DATE. Sections 4 and 5 of this Act become effective on January 2, 2027. S. B. NO. 2036 - PAGE 9
____________________________ ____________________________
President of the Senate Speaker of the House
____________________________ ____________________________
Secretary of the Senate Chief Clerk of the House
This certifies that the within bill originated in the Senate of the Sixty-ninth Legislative Assembly of North
Dakota and is known on the records of that body as Senate Bill No. 2036.
Senate Vote:Yeas 46 Nays 1 Absent 0
House Vote: Yeas 82 Nays 10 Absent 2
____________________________
Secretary of the Senate
Received by the Governor at ________M. on _____________________________________, 2025.
Approved at ________M. on __________________________________________________, 2025.
____________________________
Governor
Filed in this office this ___________day of _______________________________________, 2025,
at ________ o’clock ________M.
____________________________
Secretary of State