Senate Bill S7884

                                
 
BILL NUMBER: S7884

SPONSOR: AVELLA
 
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 provisions of the Criminal
Procedure Law are not applicable in juvenile delinquency proceedings
unless like provisions are included in the Family Court Act or unless
those provisions are incorporated by reference. Therefore, in order to
apply in Family Court, amendments to the Criminal Procedure Law must be
reflected in a specific reference or similar provision in the Family
Court Act. When an issue involving the capacity of a juvenile to stand
trial in Family Court is raised -- that is, an issue regarding the abil-
ity of the accused juvenile to understand the proceedings and assist in
his or her own defense* -- several otherwise relevant provisions of the
Criminal Procedure Law, including an amendment enacted in 2012, cannot
be applied because they have not been referenced in the Family Court
              

Act. Accordingly, we submit this measure to incorporate provisions from
the Criminal Procedure Law into the Family Court regarding 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, any examination of his or her capacity 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. This
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 Belle-
vue 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. (Footnote
omitted.) Moreover, many states have only a handful of psychiatric
hospital beds for children 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 condition requires inpatient
psychiatric care.

Id., at 57.

This measure also 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,
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 allowed no such flexibility. Faced with inade-
quate 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, she might have been able to explore whether appropriate
outpatient options might have been available.

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' treat-
ment 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.

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 gap in the
statutory framework for these rare but challenging cases and will incor-
porate 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, which would have no meaningful fiscal impact on the State,
would take effect 90 days after it shall have become a law.


 
LEGISLATIVE HISTORY:

None. New proposal.


* 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 the mental hygiene law, lacks capacity to under-
stand the proceedings against him or her or to assist in his or her own
defense."