ENTITLED, An Act to establish a procedure for the determination of the competency of a juvenile
to proceed in a juvenile court matter.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
Terms used in this chapter mean:
(1) "Mental illness," any diagnosable mental impairment supported by the most current
edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the
American Psychiatric Association;
(2) "Developmental disability," a disability as defined by § 27B-1-18; and
(3) "Approved facility," a facility as defined by § 23A-10A-13.
Section 2. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
A juvenile cannot be the subject of a proceeding under chapters 26-8B or 26-8C while
incompetent to proceed.
Section 3. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
The issue as to a juvenile's competency to proceed may be raised by the juvenile, by the state,
or sua sponte by the court at any point in the juvenile proceeding if there is reasonable cause to
believe the juvenile is suffering from a mental illness or developmental disability rendering the
juvenile incompetent to proceed. The term, incompetent to proceed, is defined by § 23A-10A-1.
Section 4. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
If the court determines that a competency determination is necessary, the court shall order the
juvenile be examined by a licensed psychiatrist or psychologist who is familiar with the clinical
evaluation of juveniles. The examination shall take place within thirty days of the court's order unless
good cause is shown for a delay.
Section 5. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
Pending an examination ordered pursuant to section 4 of this Act, the court shall suspend the
proceeding pending the outcome of a competency determination hearing pursuant to section 7 of this
Act. Suspension of the proceeding does not affect the court's ability to detain or release the juvenile.
Section 6. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
The provisions of this section govern criteria for the examiner's report in order to assist the
court's determination of competency. The examiner's report shall address the juvenile's capacity and
ability to:
(1) Understand the allegations of the petition;
(2) Understand the nature of the adversarial process including:
(a) A factual understanding of the participants in the juvenile's proceeding, including
the judge, juvenile's counsel, attorney for the state, and mental health expert; and
(b) A rational understanding of the role of each participant in the juvenile's proceeding;
(3) Understand the range of possible dispositions that may be imposed in the proceedings
against the juvenile;
(4) Disclose to counsel facts pertinent to the proceedings at issue and to assist in the juvenile's
defense;
(5) Testify at proceedings; and
(6) Demonstrate any other capacity or ability either separately sought by the court or
determined by the examiner to be relevant to the court's determination.
In assessing the juvenile's competency, the examiner shall compare the juvenile being examined
to juvenile norms for a juvenile of a similar age and the juvenile's level of developmental skills. The
examiner shall also determine and report whether the juvenile suffers from a mental illness or
developmental disability as defined in section 1 of this Act. The examiner's report shall state an
opinion whether there exists a substantial probability that the deficiencies related to competence
identified in the report, if any, can be ameliorated or will continue to exist in the foreseeable future.
If the examiner determines that the juvenile suffers from a mental illness, the examiner shall
provide the following information:
(1) The prognosis for recovery from the mental illness; and
(2) Whether the juvenile is taking any medication and, if so, what medication.
Section 7. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
Following receipt of the competency evaluation report from the examiner, the court shall provide
copies of the report to the parties and hold a competency determination hearing. If the court finds
that the juvenile is competent to proceed, the court shall set a time for the resumption of the
proceedings. If the court is not satisfied that the juvenile is competent to proceed, the court shall
determine how to proceed pursuant to sections 11 and 12 of this Act.
Section 8. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
If the juvenile, state, or court asserts that a juvenile is not competent to proceed, the state has the
burden of proving the competence of the juvenile by a preponderance of the evidence.
Section 9. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
Statements made by the juvenile in the course of a competency evaluation may not be admitted
as evidence in the adjudicatory stage for the purpose of proving any alleged delinquent act.
Section 10. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
Notwithstanding a finding by the court that the juvenile is competent to proceed in a juvenile
proceeding, if the juvenile is subsequently transferred to adult court the issue of the juvenile's
competency may be revisited.
Section 11. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
If, following the competency determination hearing pursuant to section 7 of this Act, the court
finds that the juvenile is not competent to proceed, but additionally finds that there exists a
substantial probability that the juvenile will be competent in the foreseeable future, the court shall
continue the suspension of the proceedings and may refer the juvenile to an approved facility for
evaluation and treatment of the mental health and behavioral needs identified in the report of the
examiner. During this time the court may make orders that it deems appropriate for services that may
assist the juvenile in attaining competency. Evaluation and treatment should be conducted in the least
restrictive environment with due regard to the best interests of the child and the public.
Notwithstanding any order pursuant to this section, the administration of any psychotropic
medication shall comply with the procedures set forth in chapter 27A-15.
The juvenile shall be examined and a report forwarded to the court relating to the juvenile's
competency to proceed and its reasons at the following intervals following referral: at the end of
sixty days or sooner; at the end of one hundred eighty days; and at the end of one year. Upon receipt
of the report, the court shall forward the report to the parties and without delay set a date for a
conference of the parties or, upon a motion of any party, set a hearing on the question of the
juvenile's competency to proceed. If the court finds that the juvenile is not competent to proceed, but
there exists a substantial probability that the juvenile will be competent to proceed in the foreseeable
future, the proceedings shall remain suspended pending further review or hearing.
If more than one year has elapsed since the suspension of the proceedings, the court shall
promptly hold a hearing to determine whether there exists a substantial probability that the juvenile
will be competent in the foreseeable future. The burden of proof is on the state in any such hearing.
If the court finds that there does not exist a substantial probability that the juvenile will be competent
in the foreseeable future, the court shall review the juvenile's condition to determine appropriate
placement and may dismiss the petition or, if post-adjudication, may vacate the adjudication order
and dismiss the petition.
If, during the suspension of the proceedings, the juvenile reaches eighteen years of age or is
emancipated under Title 26, the court may evaluate the appropriateness of placing the juvenile in an
appropriate institution for the care and treatment of adults with mental illness or developmental
disability for observation, care, and treatment.
The court shall set a time for resumption of the proceedings if at any point the court finds that
the juvenile is now competent to proceed.
Section 12. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as
follows:
If, following the competency determination hearing provided in section 7 of this Act, the court
finds that the juvenile is not competent to proceed and that there does not exist a substantial
probability that the juvenile will be competent in the foreseeable future, the court shall review the
juvenile's condition to determine appropriate placement and upon notice to the state shall dismiss
the petition or, if post-adjudication, shall vacate the adjudication order and dismiss the petition.
An Act to establish a procedure for the determination of the competency of a juvenile to proceed
in a juvenile court matter.
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I certify that the attached Act
originated in the
HOUSE as Bill No. 1073
____________________________
Chief Clerk
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____________________________
Speaker of the House
____________________________
Chief Clerk
____________________________
President of the Senate
____________________________
Secretary of the Senate
House Bill No. 1073
File No. ____
Chapter No. ______
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Received at this Executive Office
this _____ day of _____________ ,
20____ at ____________ M.
By _________________________
for the Governor
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The attached Act is hereby
approved this ________ day of
______________ , A.D., 20___
____________________________
Governor
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STATE OF SOUTH DAKOTA,
ss.
Office of the Secretary of State
Filed ____________ , 20___
at _________ o'clock __ M.
____________________________
Secretary of State
By _________________________
Asst. Secretary of State
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