Section 1. Amend subchapter III, Chapter 9, Title 10 of the Delaware Code by making insertions as shown by underlining as follows:

§ 1007A. Determination of competency of child.

(a) Definitions. -- For the purpose of this section, the following definitions shall apply:

(1) “Child” shall mean a person who is under the age of 18 at the time of arrest and is subject to the jurisdiction of Family Court.

(2) “Chronological immaturity” shall mean a condition based on the child’s chronological age or significant lack of developmental skills where the child has no significant mental condition or intellectual disability but is unable to understand the nature of the proceedings against the child, or to give evidence in the child’s own defense or to instruct counsel on the child’s own behalf.

(3) “Cognitive impairment” shall mean any disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills including but not limited to intellectual disability, developmental disabilities, autism spectrum disorders and traumatic brain injuries as supported by the latest version of the DSM.

(4) “Incompetent” shall mean a child who is unable to understand the nature of the proceedings against the child, or to give evidence in the child’s own defense or to instruct counsel on the child’s own behalf.

(5) “Mental disability expert” shall mean a psychiatrist, psychologist, neurologist or developmental pediatrician experienced in clinical evaluations of children and trained in forensic competency assessments. This mental disability expert shall also be familiar with the State’s competency standards and statutes and the available treatment, training and restoration programs available for children.

(6) “Mental condition” shall mean any diagnosable mental impairment supported by the latest version of the Diagnostic and Statistical Manual of Mental Health Disorders (“DSM”).

(b) Procedure to determine competency. --

(1) The issue of a child’s competence may be raised by any party or sua sponte by the Court.

(2) A party shall raise competency by filing a written motion with the Court. The motion shall state with specificity the facts in support of the request for a competency evaluation.

(3) The Court shall rule on the motion and, if it determines that competency is at issue, order the child to be examined to aid in this determination. Upon granting such motion, the delinquency proceeding shall be stayed until a determination is made on the competence of the child.

(4) All experts and examinations must conform to the requirements set forth in sections (c) and (d) below.

(5) Whenever possible, the competency evaluation shall be conducted on an outpatient basis. If the Court deems it necessary, the Court may order the child admitted to a suitable medical facility, mental health treatment facility, developmental disability facility, secure or non-secure detention facility, for the purpose of the evaluation, subject to the requirements imposed by § 1007 of this title and the Court finds that:

a. The child will not submit to an outpatient evaluation; or

b. The child refuses to appear for an outpatient evaluation; or

c. An adequate evaluation of the child is not possible without the admission to a suitable medical, developmental disability and/or mental health treatment facility. Nothing in this section shall limit the Court’s authority to detain a child pursuant to § 1007 of this title.

(6) If a child has been detained pursuant to § 1007 of this title, the Court may order a transfer of the child to a suitable medical, developmental disability and/or mental health treatment facility for the purpose of the evaluation.

(7) If the child is admitted to a medical facility, a mental health treatment facility, a developmental disability facility or is detained in a secure or non-secure detention facility pursuant to § 1007 of this title, for the purposes of the evaluation, the evaluation shall be conducted within thirty days of the Court’s order. If the evaluation is not conducted within thirty days, the child shall appear before Family Court for a bail hearing to determine if continued detention or alternative treatment of the child is in the child’s best interests. For all other children, the evaluation shall be completed within sixty days of the Court’s order.

(8) Upon completion of the competency evaluation(s) and report(s), the parties may stipulate to the findings of the mental disability experts and submit such stipulation to the Court for approval, or either party may retain their own mental disability expert, as defined in subsection (a)(5), for an additional competency evaluation, or either party may request a competency hearing be scheduled by the Court to determine the competency of the child.

(9) At any competency hearing, the State bears the burden of proving by a preponderance of the evidence that the child is competent to stand trial.

(1) The child shall be examined by at least one (1) mental disability expert as defined in subsection (a)(5).

(2) This evaluation may be conducted by either a mental disability expert employed by the Division of Prevention and Behavioral Health Services when ordered by the Court or by a mental disability expert retained by a party at its own expense. Any expert conducting the evaluation must meet the definition of a mental disability expert as defined in subsection (a)(5).

(3) If the evaluation is to be conducted by a mental disability expert employed by the Division of Prevention and Behavioral Health Services, the Court shall provide the Division of Prevention and Behavioral Health Services with a copy of the Court’s competency evaluation order and the names of the prosecutor and defense attorney, if any. The Court shall order the State to provide to the Division of Prevention and Behavioral Health Services relevant information regarding the case, including a copy of the warrant and/or affidavit of probable cause and petition. If either party has retained a mental disability expert, it will be that party’s responsibility to provide the mental disability expert with such information.

(d) Expert report criteria. --

(1) The mental disability expert shall examine the child and prepare a report stating whether, in the expert’s opinion, the child is incompetent to proceed.

(2) In conducting the examination, the qualified expert shall review all available mental health, medical, educational, developmental and court records concerning the child and the child’s case.

(3) In determining whether the child is incompetent to proceed, the qualified expert shall consider the following factors:

a. The child’s age, maturity level, developmental stage, and decision-making abilities;

b. The capacity of the child to:

(i) Understand the allegations against the child;

(ii) Understand the range and nature of allowable dispositions and sentences that may be imposed in the proceedings against the child and the ability to weigh these options;

(iii) Understand the roles of the participants and the adverse nature of the legal process;

(iv) Disclose to counsel facts pertinent to the proceedings at issue and assist counsel in the defense; and

(v) Participate in the juvenile delinquency proceeding; and

c. Any other factors that the mental disability expert deems to be relevant.

(4) The written report submitted by the mental disability expert shall:

a. Identify the specific matters referred for evaluation;

b. Describe the procedures, techniques, and tests used in the examination and the purposes of each;

c. State the mental disability expert’s clinical observations, findings, and opinions on each factor specified in paragraph (3) of this subsection, and identify those factors, if any, on which the mental disability expert could not give an opinion; and

d. Identify the sources of information used by the mental disability expert and present the factual basis for the mental disability expert’s clinical findings and opinions.

(5) If the mental disability expert believes that the child is incompetent to proceed, the report shall state the expert’s opinion regarding restoration or acquisition of competency, the potential time frame, and any recommended treatment to facilitate the restoration or acquisition of competency.

(6) The mental disability expert shall compare the child being examined to the childhood norms that are broadly defined as those skills typically possessed by the average child respondent.

(7) Statements made by the child in the course of a competency examination may not be admitted as evidence in the adjudicatory stage.

(e) Acceptable basis for a finding of incompetency. --

(1) A child may be declared incompetent by the Court if the child suffers from a mental condition that substantially affects the child’s ability to assist counsel in his or her defense or to understand the proceedings against him or her. While a mental condition can support an incompetency finding, the existence of a mental condition alone cannot predicate a finding of incompetency.

(2) A child may be declared incompetent by the Court if the child suffers from a cognitive impairment, including but not limited to, an intellectual disability, developmental disabilities, autism spectrum disorders or a traumatic brain injury, that substantially affects the child’s ability to assist counsel in his or her defense or to understand the proceedings against him or her. While a cognitive impairment can support an incompetency finding, the existence of an intellectual disability alone cannot predicate a finding of incompetency.

(3) A child may be declared incompetent by the Court based on chronological immaturity that substantially affects the child’s ability to assist counsel in his or her defense or to understand the proceedings against him or her. The mental disability expert shall report the comparison between the child being examined and the average child respondent. While chronological immaturity can support an incompetency finding, the child’s chronological age alone cannot predicate a finding of incompetency.

(4) A child may be declared incompetent by the Court based on a combination of the above conditions.

(f) Court findings. --

(1) If the Court determines after a hearing or by the parties’ stipulation that the child is competent, the delinquency proceedings against the child shall resume.

(2) If the Court determines after a hearing or by the parties’ stipulation that the child is incompetent to proceed but may be able to have competency restored or acquired, the Court:

a. May order appropriate state agencies, including but not limited to, the Department of Services for Children, Youth and Their Families or the Department of Health and Social Services, to provide appropriate treatment, rehabilitation or care services to the child whether inpatient or outpatient; or

b. May order that the Department of Services for Children, Youth and Their Families detain the child in a secure facility but only if the detention is pursuant to the requirements imposed by § 1007 of this title and all available less restrictive alternatives are inappropriate; and

c. Shall schedule a case review no later than six months from the initial competency hearing to determine the child’s progress. The Court shall order additional competency evaluations to assist in determining the child’s progress.

(3) In no case shall a child who has been found incompetent based on chronological immaturity be committed to the Department of Services for Children, Youth and Their Families for competency restoration or acquisition at a secure detention facility unless the detention is pursuant to § 1007 of this title.

(4) If the Court determines after either the initial hearing or a review hearing that the child is incompetent and will never be able to have competency restored or acquired, the Court shall:

a. Dismiss any misdemeanor charges against the child after one year from the incompetency finding.

b. Dismiss any non-violent felony charges against the child after two years from the incompetency finding.

c. Dismiss any violent felony charges, as defined by § 4201 of Title 11, against the child after three years from the incompetency finding.

d. Dismiss all charges once the child has reached his or her 18th birthday.

e. Prior to dismissal of the charges, the Court shall order any appropriate state agencies, including but not limited to, the Department of Services for Children, Youth and Their Families, the Department of Health and Social Services or the Department of Education, to provide recommendations and referrals for ongoing treatment or transition services for the child.

SPONSOR:	Rep. Barbieri & Rep. M. Smith & Sen. Blevins
	Reps. Heffernan, Keeley, Schooley, B. Short, Walker; Sens. Bushweller, Ennis, Hall-Long, Sokola, Sorenson