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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
HOUSE BILL 2312 By: Lawson
AS INTRODUCED
An Act relating to children; amending Sections 1, 2,
3 and 7, Chapter 398, O.S.L. 2015 (10A O.S. Supp.
2020, Sections 2-2-401.1, 2-2-401.2, 2-2-401.3 and 2-
2-401.7), which relate to competency evaluations;
modifying definition; allowing for competency to be
raised in youthful offender proceedings; permitting
Office of Juvenile Affairs to raise issue of
competency; providing for access to re cords;
requiring dismissal under certain circumstances;
requiring court to order services in certain
circumstances; providing for procedures with res pect
to youthful offender procee dings; and providing an
effective date.
BE IT ENACTED BY THE PE OPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY Section 1, Chapter 398, O.S.L.
2015 (10A O.S. Supp. 2020, Section 2-2-401.1), is amended to read as
follows:
Section 2-2-401.1 As used in this act Sections 2-2-401.1
through 2-2-401.7 of this title:
1. "Competent" and "competency" refer to a child's ability to
understand the nature and objectives of a proceeding against the
child or to assist in the child 's defense. A child is incompetent
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if, due to developmental disability, d evelopmental immaturity,
intellectual disability, or mental illness, the child is presently
incapable of understanding the nature and objective of proceedings
against the child or of assisting in the child 's defense;
2. "Credentialed forensic evaluator " means a licensed
psychologist, psychiatrist or other physician with necessary
education, training, and experience to perform juvenile competency
evaluations, and who has been approved to render such opinions for
the court;
3. "Developmental disability " means a severe and chronic
disability that is attributable to a mental or physical impairment.
Such disabilities include, but are not limited to, cerebral palsy,
epilepsy, autism, or other neurological conditions that lead to
impairment of general intellectu al functioning or adaptive behavior;
4. "Developmental immaturity " means a condition based on a
juvenile's chronological age and significant lack of developmental
skills when the juvenile has no significant mental illness or
intellectual disability;
5. "Intellectual disability " means a disability characterized
by significant limitations both in intellectual functioning and in
adaptive behavior as expressed in conceptual, social and practical
adaptive skills;
6. "Mental illness" has the same meaning as in paragraph 11 of
Section 5-502 of Title 43A of the Oklahoma Statutes; and
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7. "Proceeding" means any delinquency or youthful offender
proceeding under the Oklahoma Juvenile Code.
SECTION 2. AMENDATORY Section 2, Chapter 398, O.S.L .
2015 (10A O.S. Supp. 2020, Section 2-2-401.2), is amended to read as
follows:
Section 2-2-401.2 A. 1. At any time prior to or during
delinquency or youthful offender proceedings pursuant to the
Oklahoma Juvenile Code, the child 's attorney, the distric t attorney,
or the court may raise the issue of a child 's competency to
participate in the proceeding. If at the time the issue of
competency is raised the child is not represented by counsel, the
court shall immediately appoint counsel. The court shall stay all
proceedings except to allow the filing of a delinquency petition or
youthful offender information .
2. At any time prior to or during delinquency or youthful
offender proceedings pursuant to the Oklahoma Juvenile Code, the
Office of Juvenile Affai rs may raise the issue of a child 's
competency for any child in its custody.
3. In any delinquency or youthful offender proceeding pursuant
to the Juvenile Code, if the child who is the subject of the
proceeding is thirteen (13) years or older and if the child is not
otherwise found to be developmentally disabled, developmentally
immature, intellectually disabled, or mentally ill, there exists a
rebuttable presumption that the child is competent. Such
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presumption applies only for making a determination as to whether
the child is competent and shall not be used or applicable for any
other purpose.
B. The court may find a child incompetent without ordering a
competency evaluation or hearing if the district attorney and the
child's attorney, and at least one of the child's parents, legal
guardians, or guardian ad litem agree to the determination.
SECTION 3. AMENDATORY Section 3, Chapter 398, O.S.L.
2015 (10A O.S. Supp. 2020, Section 2-2-401.3), is amended to read as
follows:
Section 2-2-401.3 A. When the district attorney or, the
child's attorney, or the Office of Juvenile Affairs on behalf of a
child in its custody has reasonable basis to believe that a child is
incompetent to proceed in the delinquency action or youthful
offender proceeding, the party shall file a motion for determination
of competency. The motion shall state that the child is incompetent
to proceed and shall state facts sufficient to set forth the
reasonable basis to conduct a competency evaluation. If the court
raises the issue sua sponte, the court by written order shall set
forth the reasonable basis that the child is incompetent to proceed.
B. Within five (5) judicial days after the motion is made, the
court shall make one of the following determinations:
1. That the child is incompetent pursuant to subsection B of
Section 2 2-2-401.2 of this act title; or
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2. Without conducting a hearing, that there exists a reasonable
basis to conduct a competency evaluation; or
3. To schedule a hearing to determine wheth er there exists a
reasonable basis to conduct a competency evaluation. Such hearing
shall be held within ten (10) judicial days. The court 's
determination shall be announced no later than one (1) judicial day
after the conclusion of the hearing.
C. If the court determines there is a reasonable basis for a
competency evaluation or if the district attorney and the child 's
attorney agree to the evaluation, the court shall order a competency
evaluation. If the court orders a competency evaluation, the court
shall order that the competency evaluation be conducted in the
least-restrictive environment, taking into account the public safety
and the best interests of the child.
1. The court shall provide in its order that the evaluator
shall have access to all r elevant confidential and public records
related to the child, including competency evaluations and reports
conducted in prior delinquent or youthful offender proceedings. The
court shall provide to the evaluator a copy of the delinquency
petition or youthful offender information and the names and contact
information for the judge, district attorney, child 's attorney, and
parents or legal guardians.
2. Within five (5) judicial days after the court orders an
evaluation, the district attorney shall deliver t o the evaluator
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copies of relevant police reports and other background information
relevant to the child that are in the district attorney 's
possession.
3. Within five (5) judicial days after the court orders an
evaluation, the child 's attorney shall deli ver to the evaluator
copies of relevant police reports and other relevant records
including, but not limited to, educational, medical, psychological,
and neurological records that are relevant to the evaluation and
that are in the attorney 's possession.
SECTION 4. AMENDATORY Section 7, Chapter 398, O.S.L.
2015 (10A O.S. Supp. 2020, Section 2-2-401.7), is amended to read as
follows:
Section 2-2-401.7 A. After a hearing pursuant to Section 6 2-
2-401.6 of this act title, if the court determines by a
preponderance of the evidence that the child is competent to
proceed, the delinquency or youthful offender proceedings shall be
resumed as provided by law.
B. After a hearing pursuant to Section 6 2-2-401.6 of this act
title, if the court determines by the preponderance of the evidence
that the child is incompetent to proceed and cannot attain
competency within the period of time application under subparagraph
a of paragraph 3 of subsection C of this section, the court shall
dismiss the petition or information without prejudice, and take
either of the following actions:
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1. Refer the matter to the Oklahoma Department of Human
Services and request a determination whether a deprived action
should be filed in accordance with the Oklahoma Chil dren's Code
alleging that the child is a neglected, abused or dependent child;
or
2. Refer the matter to the district attorney for consideration
of initiating a Child in Need of Supervision or Minor in Need of
Mental Health and Substance Abuse Treatment p roceeding in accordance
with the Oklahoma Juvenile Code or Inpatient Mental Health and
Substance Abuse Treatment of Minors Act.
C. If the court determines by a preponderance of the evidence
that a child is incompetent to proceed but may likely attain
competency, the court shall stay the proceedings and order the child
to receive services designated to assist the child in attaining
competency, based upon the recommendations in the competency
evaluation report unless the court makes specific findings that th e
recommended services are not justified. The court shall order the
child's parent or legal guardian to contact a court -designated
provider by a specified date to arrange for services.
1. The competency attainment services provided to a child shall
be based on a court-approved competency attainment plan described in
paragraph 2 of subsection D of this section, and are subject to the
conditions and time periods required pursuant to this section
measured from the date the court approves the plan.
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2. The court shall order that the competency attainment
services ordered are provided in the least -restrictive environment,
taking into account the public safety and the best interests of the
child. If the child has been released on temporary orders and
refuses or fails to cooperate with the service provider, the court
may modify the orders to require a more appropriate setting.
3. No child shall be required to participate in competency
attainment services for longer than is required to attain
competency. The fol lowing maximum periods of participation shall
apply:
a. if the services are provided, the child shall not
participate in those services for a period exceeding
six (6) months or upon the child 's 18th birthday, or
up to the child's 19th birthday if ordered b y the
court in order to complete the six (6) months of
treatment, if the child is charged with an act that
would be a misdemeanor if committed by an adult,
b. if the services are provided, the child shall not
participate for a period exceeding twelve (12) months
or upon the child's 18th birthday, or up to the
child's 19th birthday if ordered by the court in order
to complete the twelve (12) months of treatment, if
the child is charged as a delinquent or youthful
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offender for an act that would be a felony if
committed by an adult.
D. 1. Within ten (10) judicial days after the court orders the
provider responsible for the child 's competency attainment services,
the court shall deliver to that provider:
a. the name and address of the child 's counsel,
b. a copy of the child's Petition or Information,
c. a copy of the competency evaluation report,
d. the name, address, and phone number of the child 's
parents or legal guardian,
e. the name of the Office of Juvenile Affairs employee or
Juvenile Bureau employee res ponsible for the intake,
supervision, or custody of the child, if adjudicated,
f. the name of the Department of Human Services
caseworker, if any, and
g. any other relevant documents or reports concerning the
child's health that have come to the attention of the
court.
2. Not later than ten (10) judicial days after the child
contacts the competency attainment provider, a plan for the child to
attain competency shall be submitted to the court by the provider.
The court shall provide copies of the plan to t he district attorney,
the child's attorney, the guardian ad litem, if any, the Office of
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Juvenile Affairs or Juvenile Bureau, and the child 's parent or legal
guardian.
E. The provider shall submit reports to the court pursuant to
the following schedule:
1. Every ninety (90) calendar days and upon completion or the
termination of services. Each report shall include the following:
a. the services provided to the child, including
medication, education and counseling,
b. the likelihood that the competency of the child to
proceed will be restored within the applicable period
of time set forth in subparagraph a of paragraph 3 of
subsection C of this section, and
c. the progress made towards the goals and objectives for
the restoration of competency identified i n the
recommendations from the competency evaluation as
adopted by the court;
2. Three (3) judicial days after the provider 's determination
that the child is not cooperating to a degree that would allow the
services to be effective to help the child attai n competency;
3. Three (3) judicial days after the provider 's determination
that the current setting is no longer the least-restrictive setting
that is consistent with the child 's ability to attain competency and
taking into account the public safety and the best interests of the
child. The provider shall include in the report an assessment of
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the danger the child poses to himself, herself or others and an
assessment of the appropriateness of the placement;
4. Three (3) judicial days after the provider 's determination
that the child has achieved the goals of the plan and would be able
to understand the nature and objectives of the proceedings against
the child, to assist in the child 's defense, and to understand and
appreciate the consequences that may be imposed or result from the
proceedings with or without reasonable accommodations. The report
shall include recommendations for the accommodations that would be
necessary or advantageous; and
5. Three (3) judicial days after the provider 's determination
that the child will not achieve the goals of the plan within the
applicable period of time pursuant to subparagraph a of paragraph 3
of subsection C of this section. The report shall include
recommendations for services for the child and taking into accou nt
the public safety and the best interests of the child.
F. The court shall provide copies of any report made by the
provider to the district attorney, the child 's attorney, the child 's
intake worker, and the child 's guardian ad litem, if any. The court
shall provide copies of any reports made by the provider to the
child's parents or legal guardians, unless the court finds that
doing so is not in the best interest of the child.
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G. Within fifteen (15) judicial days after receiving a
provider's report, the court may hold a hearing to determine if a
new order is necessary.
1. If the court determines that the child is not making
progress toward competency or is so uncooperative that attainment
services cannot be effective, the court may order a change in
setting or services that would help the child attain competency
within the relevant period of time as set forth in subparagraph a of
paragraph 3 of subsection C of this section.
2. If the court determines that the child has not or will not
attain competency within the relevant period of time as set forth in
subparagraph a of paragraph 3 of subsection C of this section, the
court shall dismiss the delinquency or youthful offender charge
without prejudice.
3. A dismissal under paragraph 2 of this subsection shall not
preclude a future delinquent child or youthful offender proceeding
as provided for under Title 10A of the Oklahoma Statutes this title.
H. After a hearing held pursuant to subsection G of this
section, if the court determines that the child has attained
competency, the court shall proceed with the delinquent child's
delinquency or youthful offender proceeding in accordance with the
provisions of the Juvenile Code.
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I. A dismissal under this section does not bar a civil action
based on the acts or omissions that formed the basis of the petition
or information.
SECTION 5. This act shall become effective November 1, 202 1.
58-1-5121 CMA 11/10/20