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SENATE FLOOR VERSION
April 6, 2021
AS AMENDED
ENGROSSED HOUSE
BILL NO. 2312 By: Lawson, Munson and Virgin
of the House
and
Haste of the Senate
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; providing
for access to records; requiring d ismissal under
certain circumstances; requiring court to order
services in certain circumstances; providing for
procedures with respect to youthful offender
proceedings; and providing an effective date.
BE IT ENACTED BY THE PEOPLE 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
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child or to assist in the child 's defense. A child is incompetent
if, due to developmental disability, developmental immatur ity,
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 chro nic
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 lea d to
impairment of general intellectual functioning or ad aptive 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 illn ess or
intellectual disability;
5. "Intellectual disabil ity" means a disability characterized
by significant limitations both in intellectual functioning and in
adaptive behavior as expressed in conceptual, social and practical
adaptive skills;
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6. "Mental illness" has the same meaning as in paragraph 11 of
Section 5-502 of Title 43A of the Oklahoma Statutes; and
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 Co de, the child's attorney, the district 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 immediate ly 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 Juveni le Code, the
Office of Juvenile Affairs may file a Motion to Intervene to 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 a nd if the child is not
otherwise found to be developmentally disabled, developmentally
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immature, intellectually disabled, or mentally ill, there exists a
rebuttable presumption that the child is competent. Such
presumption applies only for making a determ ination 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 t he
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 has reasonable basis to believe that a child is
incompetent to proceed in the del inquency 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 spo nte, the court by written order shal l 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:
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1. That the child is incom petent pursuant to subsection B of
Section 2 2-2-401.2 of this act title; or
2. Without conducting a hearing, that there exists a reasonable
basis to conduct a competency evaluation; or
3. To schedule a hearing to determine whether there exists a
reasonable basis to conduct a competency ev aluation. 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 orde rs a competency evaluation, the court
shall order that the com petency evaluation be conducted in t he
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 relevant 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.
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2. Within five (5) judicial days after the court orders an
evaluation, the district attorney shall deliver to the evaluator
copies of relevant police reports and other b ackground 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 deliver to the evaluator
copies of relevant police reports and ot her 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, Chap ter 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 chi ld 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 prepo nderance 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 s ection, the court shall
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dismiss the petition or information without prejudice, and take
either of the following actions:
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 Children 's Code
alleging that the child is a neglected, abused o r 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 proceeding in accordance
with the Oklahoma Juvenile Code or I npatient 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 s tay the proceedings and order the c hild
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 the
recommended services ar e not justified. The court shall o rder 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 ser vices 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
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conditions and time periods required pursuant to this section
measured from the date th e court approves the plan.
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 releas ed 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 re quired to attain
competency. The following 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 by 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
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the child is charged as a delinquent or youthful
offender for an act that would be a felony if
committed by an adult.
D. 1. Within ten (10) judicial day s 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 emp loyee or
Juvenile Bureau employee responsible for the intake,
supervision, or custody of the chil d, 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 afte r 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 the 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) cale ndar days and upon completion or th e
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 in 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 attain competency;
3. Three (3) judicial days after the provider 's determination
that the current setting is no longer the least restrictive least-
restrictive setting that is consistent with the child 's ability to
attain competency and takin g into account the public safety and the
best interests of the child. The provider shall include in the
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report an assessment of 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 t he
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 day s after the provider 's determination
that the child will not a chieve 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 service s for the child and taking into account
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
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 a fter receiving a
provider's report, the court may hold a heari ng 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 effecti ve, the court may order a change in
setting or services that w ould 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 per iod 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 ba r a civil action
based on the acts or omissions that formed th e basis of the petition
or information.
SECTION 5. This act shall become effective November 1, 202 1.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY
April 6, 2021 - DO PASS AS AMENDED