BILL NUMBER: S5516

SPONSOR: MONTGOMERY
 
TITLE OF BILL:  An act to amend the family court act, in relation to
the determination of capacity to stand trial in juvenile delinquency
proceedings in family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

Family Court Act § 303.1(1) provides that the Criminal Procedure Law is
not applicable in juvenile delinquency proceedings unless a similar
provision is included in the Family Court Act or unless it is incorpo-
rated by reference. Therefore, in order to apply in Family Court, amend-
ments to the Criminal Procedure Law must be reflected in a specific
reference or similar provision in the Family Court Act.  When an issue
of capacity to stand trial is raised -- that is, an issue regarding the
ability of the accused juvenile to understand the proceedings and assist
in his or her own defenses-- several provisions of the Criminal Proce-
dure Law, including an amendment enacted in 2012, have not been refer-
enced in the Family Court Act.  Accordingly, this measure would import
provisions from the Criminal Procedure Law into the Family Court regard-
              

ing the settings for both initial evaluations and, where a lack of
capacity to stand trial is found, the provision of treatment services.

First, Criminal Procedure Law 73020 provides that where a criminal
defendant is in custody, examination of his or her fitness to proceed
should be conducted at the detention center or jail in which he or she
is being held unless hospitalization is required. Where a defendant is
not in custody, the evaluation may be conducted on an outpatient basis.
The instant measure thus amends Family Court Act § 322.1 to remove the
requirement that examinations be conducted in a hospital setting in
order to provide that, where a juvenile respondent is in custody, the
examination may be conducted at the detention center. This is consistent
with the decision of the Family Court in Matter of Justin L., 56 Misc.3d
1167 (Fam. Ct., Kings Co., 2017), in which the court's Mental Health
Service Clinic was ordered to send evaluators to the juvenile detention
center since Bellevue Hospital maintained that its clinicians were not
trained to perform capacity examinations for juveniles.

A national guide for drafting juvenile competency statutes, compiled by
a panel of leading national experts under the auspices of the MacArthur
Foundation's "Models for Change" project, advocates flexibility in the
location of capacity evaluations, noting that hospitalization is not
required:

Mental health examiners are able to perform competency evaluations of
juveniles in their offices in the community or in pretrial detention
centers. Therefore, drafters are encouraged to include in the statute a
"least restrictive alternative" provision. ...

If juveniles do not need psychiatric hospitalization (i.e., do not meet
a state's criteria for civil commitment), there is no reason to hospi-
talize them for a competency evaluation, and many reasons to avoid it.
First, competency evaluations can be performed well without hospitaliza-
tion. Second, while many youth who are not mentally ill have special
needs (e.g., youth with developmental disabilities or less serious
mental illnesses), psychiatric hospitals are not designed to meet those
youths' needs. Third, psychiatric hospitalization is very expensive,
with estimates of the daily cost of treating one patient in an inpatient
psychiatric unit ranging from $700 to over $1,000 per day.  Moreover,
many states have only a handful of psychiatric hospital beds for chil-
dren at any given time, and they are almost always occupied.

When juveniles do not require psychiatric treatment, courts in some
cases will decide that they need a secure setting because they might
otherwise endanger themselves or endanger others. This may lead to
placement in a detention center or jail. Competency evaluations can be
conducted effectively in such facilities.

If neither inpatient psychiatric hospitalization nor a secure, non-psy-
chiatric facility is required, the juvenile can be evaluated in a commu-
nity-based setting, such as the evaluator's office, at a community
outpatient mental health center, or within the courthouse.  This commu-
nity-based option not only respects the juveniles' liberty interests by
keeping them within the least restrictive setting when possible, but it
is also much more cost effective and is associated with better outcomes
for these juveniles.

K. Larson and T. Grisso, Developing Statutes for Competence to Stand
Trial in Juvenile Delinquency Proceedings: A Guide for Lawmakers 55 -56
(Models for Change, National Youth Screening and Assessment Project,
MacArthur Foundation, Nov., 2011).

The experts thus recommended that evaluations for juveniles' competence
to stand trial should occur in the least restrictive setting appropriate
for their psychological needs, typically while residing in the community
or in pretrial detention. Specifically, psychiatric hospitalization for
evaluations should be allowed only when the youth's psychiatric condi-
tion requires inpatient psychiatric care.

Id., at 57.

Second, this measure amends Family Court Act § 322.2 to permit treatment
services to be provided on an outpatient basis for youth deemed to lack
capacity. As the Family Court noted, in Matter of Justin L., supra,
that, whereas sections 730.40 and 730.50 of the Criminal Procedure Law
had been amended in 2012 to permit treatment to be provided in felony
cases on an outpatient basis with the prosecutors' consent (L.2012, c.
56, pt. Q), the Family Court Act appeared to allow no such flexibility.
Faced with inadequate options for treatment of a juvenile with multiple
diagnoses, the court was constrained to commit the youth to the Office
of Mental Health but indicated that, had a similar amendment been made
to the Family Court Act, the court might have been able to explore
whether appropriate outpatient options might have been available.

Importantly, this measure harmonizes the Family Court Act with existing
provisions of the Mental Hygiene Law. Both sections 7.09(e) and 13.09(c)
of the Mental Hygiene Law, addressing commitments by Family Court to the
Commissioners of Mental Health and the Office of People with Disabili-
ties, respectively, provide that, upon commitment, the Commissioner "may
place the juvenile in any appropriate facility or program under his
jurisdiction, but he  
OR SHE shall comply with any order requiring
treatment in a residential facility made pursuant to paragraph (c) of
subdivision five of section 322.2 of the family court act." Clearly, if
all commitments were to residential facilities, there would be no need
for the phrase "or program" and the last clause about complying with an
order specifying residential care would be redundant.

Just as flexibility is appropriate regarding the location of the evalu-
ation, so, too, flexibility is warranted in the location of treatment
services needed to bring the juvenile to competence. As the Models for
Change experts indicated:

If a juvenile is found incompetent to stand trial and is considered to
be capable of remediation, the remediation can be accomplished either in
an inpatient or a community-based setting. It is difficult to identify
specific settings for all communities, since communities vary in the
availability of various types of inpatient or community-based services.
Therefore, we offer some basic principles that a state might consider in
determining the proper placement for youth who require remediation of
incompetence.

First, the setting should match the level of clinical treatment needs of
the youth. Thus, youth whose incompetence is related to a serious mental
disorder that ordinarily would require inpatient treatment are appropri-
ate for competence remediation in an inpatient psychiatric setting
designed for children. This is appropriate because psychiatric treatment
is likely to be needed in order to reduce the symptoms of disorder that
are likely to be at the root of the youth's incompetence. No other
incompetent youth, however, should require placement in inpatient
psychiatric treatment programs for competence remediation - for example,
youth whose incompetence is related to intellectual disability or devel-
opmental immaturity and for whom mental disorder is absent (or present
only in a form that typically does not require hospitalization for
treatment).

Second, for youth not requiring inpatient psychiatric treatment, remedi-
ation should be accomplished in community based settings that match the
level of security required for community safety or for assuring that the
youth will be available for later trial. Youth presenting security
issues can be remediated while in juvenile detention centers or staff-
secure shelters. Youth not requiring those levels of security can be
considered for remediation while living at home or other non-secure
settings.

Third, some youth who do not need psychiatric hospitalization may never-
theless have special needs that warrant special community-based arrange-
ments during the time of their remediation. Examples include:  (a) youth
who might need temporary placement in residential programs for youth
with intellectual disabilities, if their own homes do not provide
adequate care and supervision, or (b) youth who have less acute mental
disorders who may need community based mental health center contact
while living at home or in some other protected residential program.

Larson and Grisso, supra, at p. 71.

Third, similar to Criminal Procedure Law § 730.40(2), the measure amends
section 322.2(4) of the Family Court Act to provide that dismissal of a
petition upon issuance of an order of commitment "constitute 
SL A BAR TO
FURTHER PROSECUTION OF THE CHARGE OR CHARGES CONTAINED IN THE PETITION."
IF PROSECUTION OF CRIMINAL CHARGES REGARDING ADULTS ARE BARRED, THERE IS
NO JUSTIFICATION FOR NOT PROVIDING A SIMILAR BAR IN ANALOGOUS JUVENILE
DELINQUENCY CASES.
THERE IS NO REASON TO DENY TO JUVENILES THE LEGAL OPTIONS AVAILABLE IN
ADULT CRIMINAL CASES REGARDING EVALUATIONS OF COMPETENCY TO STAND TRIAL
AND, FOR THOSE FOUND TO LACK CAPACITY, PROVISION OF TREATMENT SERVICES
NEEDED TO ACHIEVE IT. ENACTMENT OF THIS MEASURE WILL FILL A NEEDED GAP
IN THE STATUTORY FRAMEWORK FOR THESE RARE BUT CHALLENGING CASES AND WILL
INCORPORATE THE FLEXIBLE APPROACHES RECOGNIZED AS NATIONAL MODELS. AS
THE COURT STATED, IN MATTER OF JUSTIN L., SUPRA:

THE LACK OF FLEXIBILITY IN A STATUTE THAT GOVERNS CHILDREN WHO HAVE BEEN
FOUND TO LACK CAPACITY TO UNDERSTAND THE PROCEEDINGS APPEARS INCONSIST-
ENT WITH THE GENERAL PURPOSE OF THE FAMILY COURT ACT, WHICH IS "TO
EMPOWER THE FAMILY COURT TO INTERVENE AND POSITIVELY IMPACT THE LIVES OF
TROUBLED YOUNG PEOPLE WHILE PROTECTING THE PUBLIC."  MATTER OF ROBERT
J., 2 N.Y.3D 339 (2004); SEE ALSO FAMILY COURT ACT § 301.1. THE PURPOSE
IS NOT PUNISHMENT. THE FAMILY COURT IS "GIVEN A WIDE RANGE OF POWERS FOR
DEALING WITH THE COMPLEXITIES, OF FAMILY LIFE SO THAT ITS ACTION MAY FIT
THE PARTICULAR NEEDS OF THOSE BEFORE IT." F.C.A. § 141.

THIS MEASURE WOULD TAKE EFFECT ON THE 90TH DAY FOLLOWING ENACTMENT.
LEGISLATIVE HISTORY: OCA 2018-93, 57888 (2017-18) (PASSED)

* FAMILY COURT ACT § 301.2(13) DEFINES AN "INCAPACITATED PERSON" AS AN
ACCUSED JUVENILE "WHO, AS A RESULT OF MENTAL ILLNESS, OR INTELLECTUAL OR
DEVELOPMENTAL DISABILITY AS DEFINED IN SUBDIVISIONS TWENTY AND TWENTY-
TWO OF SECTION 1.03 OF MENTAL HYGIENE LAW, LACKS CAPACITY TO UNDERSTAND
THE PROCEEDINGS AGAINST HIM OR HER TO ASSIST IN HIS OR HER OWN DEFENSE."

                                
 
BILL NUMBER: S5516A

SPONSOR: MONTGOMERY
 
TITLE OF BILL:  An act to amend the family court act and the mental
hygiene law, in relation to the determination of capacity to stand trial
in juvenile delinquency proceedings in family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

Family Court Act § 303.1(1) provides that the Criminal Procedure Law is
not applicable in juvenile delinquency proceedings unless a similar
provision is included in the Family Court Act or unless it is incorpo-
rated by reference. Therefore, in order to apply in Family Court, amend-
ments to the Criminal Procedure Law must be reflected in a specific
reference or similar provision in the Fathily Court Act.  When an issue
of capacity to stand trial is raised -- that is, an issue regarding the
ability of the accused juvenile to understand the proceedings and assist
in his or her own defense*-- several provisions of the Criminal Proce-
dure Law, including an amendment enacted in 2012, have not been refer-
enced in the Family Court Act.  Accordingly, this measure would import
provisions from the Criminal Procedure Law into the Family Court regard-
              

ing the settings for both initial evaluations and, where a lack of
capacity to stand trial is found, the provision of treatment services.

First, Criminal Procedure Law 730.20 provides that where a criminal
defendant is in custody, examination of his or her fitness to proceed
should be conducted at the detention center or jail in which he or she
is being held unless hospitalization is required. Where a defendant is
not in custody, the evaluation may be conducted on an outpatient basis.
The instant measure thus amends Family Court Act § 322.1 to remove the
requirement that examinations be conducted in a hospital setting in
order to provide that, where a juvenile respondent is in custody, the
examination may be conducted at the detention center. This is consistent
with the decision of the Family Court in Matter of Justin L., 56 Misc.3d
1167 (Fam. Ct., Kings Co., 2017), in which the court's Mental Health
Service Clinic was ordered to send evaluators to the juvenile detention
center since Bellevue Hospital maintained that its clinicians were not
trained to perform capacity examinations for juveniles.

A national guide for drafting juvenile competency statutes, compiled by
a panel of leading national experts under the auspices of the MacArthur
Foundation's "Models for Change" project, advocates flexibility in the
location of capacity evaluations, noting that hospitalization is not
required:

Mental health examiners are able to perform competency evaluations of
juveniles in their offices in the community or in pretrial detention
centers. Therefore, drafters are encouraged to include in the statute a
"least restrictive alternative" provision. ...

If juveniles do not need psychiatric hospitalization (L e., do not meet
a state's criteria for civil commitment), there is no reason to hospi-
talize them for a competency evaluation, and many reasons to avoid it.
First, competency evaluations can be performed well without hospitaliza-
tion. Second, while many youth who are not mentally ill have special
needs (e.g., youth with developmental disabilities or less serious
mental illnesses), psychiatric hospitals are not designed to meet those
youths' needs. Third, psychiatric hospitalization is very expensive,
with estimates of the daily cost of treating one patient in an inpatient
psychiatric unit ranging from $700 to over $1,000 per day.  Moreover,
many states have only a handful of psychiatric hospital beds for chil-
dren at any given time, and they are almost always occupied.

When juveniles do not require psychiatric treatment, courts in some
cases will decide that they need a secure setting because they might
otherwise endanger themselves or endanger others. This may lead to
placement in a detention center or jail. Competency evaluations can be
conducted effectively in such facilities.

If neither inpatient psychiatric hospitalization nor a secure, non-psy-
chiatric facility is required, the juvenile can be evaluated in a commu-
nity-based setting, such as the evaluator's office, at a community
outpatient mental health center, or within the courthouse.  This commu-
nity-based option not only respects the juveniles' liberty interests by
keeping them within the least restrictive setting when possible, but it
is also much more cost effective and is associated with better outcomes
for these juveniles.

K. Larson and T. Grisso, Developing Statutes for Competence to Stand
Trial in Juvenile Delinquency.Proceedings: A Guide for Lawmakers 55 -56
(Models for Change, National Youth Screening and Assessment Project,
MacArthur Foundation, Nov., 2011).

The experts thus recommended that evaluations for juveniles' competence
to stand trial should occur in the least restrictive setting appropriate
for their psychological needs, typically while residing in the community
or in pretrial detention. Specifically, psychiatric hospitalization for
evaluations should be allowed only when the youth's psychiatric condi-
tion requires inpatient psychiatric care.

Id., at 57.

Second, this measure amends Family Court Act § 322.2 to permit treatment
services to be provided on an outpatient basis for youth deemed to lack
capacity. As the Family Court noted, in Matter of Justin L., supra,
that, whereas sections 730.40 and 730.50 of the Criminal Procedure Law
had been amended in 2012 to permit treatment to be provided in felony
cases on an outpatient basis with the prosecutors' consent (L.2012, c.
56, pt. Q), the Family Court Act appeared to allow no such flexibility.
Faced with inadequate options for treatment of a juvenile with multiple
diagnoses, the court was constrained to commit the youth to the Office
of Mental Health but indicated that, had a similar amendment been made
to the Family Court Act, the court might have been able to explore
whether appropriate outpatient options might have been available.

Importantly, this measure harmonizes the Family Court Act with existing
provisions of the Mental Hygiene Law. Both sections 7.09(e) and 13.09(c)
of the Mental Hygiene Law, addressing commitments by Family Court to the
Commissioners of Mental Health and the Office of People with Disabili-
ties, respectively, provide that, upon commitment, the Commissioner "may
place the juvenile in any appropriate facility or program under his
jurisdiction, but he (or she) shall comply with any order requiring
treatment in a residential facility made pursuant to paragraph (c) of
subdivision five of section 322.2 of the family court act." Clearly, if
all commitments were to residential facilities, there would be no need
for the phrase "or program" and the last clause about complying with an
order specifying residential care would be redundant.

Just as flexibility is appropriate regarding the location of the evalu-
ation; so, too, flexibility is warranted in the location of treatment
services needed to bring the juvenile to competence. As the Models for
Change experts indicated:

If a juvenile is found incompetent to stand trial and is considered to
be capable of remediation, the remediation can be accomplished either in
an inpatient or a community-based setting. It is difficult to identify
specific settings for all communities, since communities vary in the
availability of various types of inpatient or community-based services.
Therefore, we offer some basic principles that a state might consider in
determining the proper placement for youth who require remediation of
incompetence.

First, the setting should match the level of clinical treatment needs of
the youth. Thus, youth whose incompetence is related to a serious mental
disorder that ordinarily would require inpatient treatment are appropri-
ate for competence remediation in an inpatient psychiatric setting
designed for children. This is appropriate because psychiatric treatment
is likely to be needed in order to reduce the symptoms of disorder that
are likely to be at the root of the youth's incompetence. No other
incompetent youth, however, should require placement in inpatient
psychiatric treatment programs for competence remediation - for example,
youth whose incompetence is related to intellectual disability or devel-
opmental immaturity and for whom mental disorder is absent (or present
only in a form that typically does not require hospitalization for
treatment).

Second, for youth not requiring inpatient psychiatric treatment, remedi-
ation should be accomplished in community based settings that match the
level of security required for community safety or for assuring that the
youth will be available for later trial. Youth presenting security
issues can be remediated while in juvenile detention centers or staff-
secure shelters. Youth not requiring those levels of security can be
considered for remediation while living at home or other non-secure
settings.

Third, some youth who do not need psychiatric hospitalization may never-
theless have special needs that warrant special community-based arrange-
ments during the time of their remediation. Examples include:

(a) youth who might need temporary placement in residential programs for
youth with intellectual disabilities, if their own homes do not provide
adequate care and supervision, or (b) youth who have less acute mental
disorders who may need community based mental health center contact
while living at home or in some other protected residential program.

Larson and Grisso, supra, at p. 71.

Third, similar to Criminal Procedure Law § 730.40(2), the measure amends
section 322.2(4) of the Family Court Act to provide that dismissal of a
petition upon issuance of an order of commitment "constitute 
S a bar to
further prosecution of the charge or charges contained in the petition."
If prosecution of criminal charges regarding adults is barred, there is

no justification for not providing a similar bar in analogous juvenile
delinquency cases.

There is no reason to deny to juveniles the legal options available in
adult criminal cases regarding evaluations of competency to stand trial
and, for those found to lack capacity, provision of treatment services
needed to achieve it. Enactment of this measure will fill a needed gap
in the statutory framework for these rare but challenging cases and will
incorporate the flexible approaches recognized as national models. As
the court stated, in Matter of Justin L., supra:

The lack of flexibility in a statute that governs children who have been
found to lack capacity to understand the proceedings appears inconsist-
ent with the general purpose of the Family Court Act, which is "to
empower the Family Court to intervene and positively impact the lives of
troubled young people while protecting the public."  Matter of Robert
J., 2 N.Y.3d 339 (2004); See also Family Court Act § 301.1. The purpose
is not punishment. The Family Court is "given a wide range of powers for
dealing with the complexities of family life so that its action may fit
the particular needs of those before it."  F.C.A. § 141.

This measure would take effect on the 90th day following enactment.

 
LEGISLATIVE HISTORY:

OCA 2018-93, S7888 (2017-18) (passed)


* Family Court Act § 301.2(13) defines an "incapacitated person" as an
accused juvenile "who, as a result of mental illness, or intellectual or
developmental disability as defined in subdivisions twenty and twenty-
two of section 1.03 of mental hygiene law, lacks capacity to understand
the proceedings against him or her to assist in his or her own defense."