CHC 837 - Procedure after determination of mental capacity - Louisiana Statutes

Art. 837. Procedure after determination of mental capacity

A. If the court determines that the child has the mental capacity to proceed, the delinquency proceedings shall be resumed.

B. If the court determines by a preponderance of the evidence that the child lacks the mental capacity to proceed and the alleged delinquent act is a felony, the proceedings shall be suspended and the court may:

(1) Dismiss the petition in accordance with Article 876.

(2) Adjudicate the family of the child to be in need of services and proceed to a disposition in accordance with Chapters 10 and 12 of Title VII.

(3) Commit the child to the Department of Health and Hospitals, a private mental institution, or an institution for the mentally ill in accordance with Department of Health and Hospitals policy. The court may also order restoration services for the child and appoint a restoration service provider. However, a child shall not be committed unless the court finds, after a contradictory hearing with ten days notice to the district attorney and counsel for the child, that the child, as a result of mental illness, is dangerous to himself or others or is gravely disabled. If the court further finds that the child will not have the mental capacity to proceed in the foreseeable future, the court shall order civil commitment as provided in Title XIV. However, no child shall be discharged or conditionally discharged except upon court order after a motion and contradictory hearing.

(4) Place the child in the custody of his parents or other suitable person or private or public institution or agency under such terms and conditions as deemed in the best interests of the child and the public, which conditions may include the provision of outpatient services by any suitable public or private agency. The court may also order restoration services for the child and appoint a restoration service provider.

C. If the court determines by a preponderance of the evidence that the child lacks the mental capacity to proceed and the alleged delinquent act is a misdemeanor, the court may either:

(1) Dismiss the petition in accordance with Article 876.

(2) Adjudicate the family of the child to be in need of services and proceed to a disposition in accordance with Chapters 10 and 12 of Title VII.

D. In a misdemeanor or felony case, if the court determines by a preponderance of the evidence that the child lacks the mental capacity to proceed primarily because of immaturity and the child may attain the mental capacity to proceed in the future without restoration services, the court may only:

(1) Dismiss the petition in accordance with Article 876.

(2) Adjudicate the family of the child to be in need of services and proceed to a disposition in accordance with Chapters 10 and 12 of Title VII.

(3) Continue the matter for six months in order to review the child's mental capacity to proceed.

E. In no instance shall a commitment or placement ordered pursuant to Subparagraph (B)(3) or (4) of this Article exceed the time of the maximum disposition the child could receive if adjudicated delinquent for the alleged delinquent act.

F. Upon commitment, the court shall furnish to the institution the following information:

(1) The name and address of the child's counsel.

(2) The offense with which the child is charged and the date of such charges.

(3) A copy of the competency commission report.

(4) Any other pertinent information concerning the child's health which has come to the attention of the court.

(5) The name, address, and phone number of the child's parents, tutor, caretaker, and custodial agency.

G. Under no circumstances shall a child who is found to lack the mental capacity to proceed in accordance with this Chapter be held in a secure placement facility longer than permitted elsewhere by this Code for a mentally ill or developmentally disabled child.

H. An out-of-home placement or commitment shall be in a separate unit and program from an adult forensic program unless the child is seventeen years of age or older and the court finds, after a contradictory hearing, that the child can be appropriately treated in an adult forensic program.

I. Subsequent to a finding that a child is incompetent to proceed pursuant to a felony charge, upon a showing of good cause that a child presents a danger of flight, the court may authorize the Department of Health and Hospitals to use appropriate restraints on the person of a child during transport, until further order of the court. Use of restraints pursuant to the provisions of this Section shall comply with the policy of the Department of Health and Hospitals on seclusion and restraints.

Acts 1991, No. 235, §8, eff. Jan. 1, 1992; Acts 2004, No. 485, §1, eff. Jan. 1, 2005; Acts 2006, No. 266, §1; Acts 2008, No. 222, §1, eff. June 16, 2008; Acts 2009, No. 230, §1, eff. July 1, 2009.