Bill Text: OR HB2108 | 2011 | Regular Session | Introduced

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Bill Title: Relating to fitness of youth to proceed on delinquency petition; declaring an emergency.

Sponsorship: Unknown

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB2108 Detail]

Download: Oregon-2011-HB2108-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 675

                         House Bill 2108

Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Governor John A. Kitzhaber
  for Oregon Health Authority)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Establishes standards and procedures for determining fitness of
youth to proceed on delinquency petition.
  Requires Oregon Health Authority to develop guidelines for
conduct of evaluation of fitness of youth to proceed and to
administer program to provide restorative services to youths who
are determined unfit to proceed and who present substantial
probability of gaining or regaining fitness to proceed.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to fitness of youth to proceed on delinquency petition;
  and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) A court may find that a youth is unfit to
proceed in a proceeding initiated by a petition alleging
jurisdiction under ORS 419C.005 if, as a result of mental disease
or defect or another condition, the youth is unable:
  (a) To understand the nature of the proceedings against the
youth;
  (b) To assist and cooperate with the counsel for the youth; or
  (c) To participate in the defense of the youth.
  (2) A court may not find that a youth is unfit to proceed in a
proceeding solely because:
  (a) Of the age of the youth;
  (b) Of the current inability of the youth to remember the acts
alleged in the petition; or
  (c) Evidence exists that the youth committed the acts alleged
in the petition while the youth was under the influence of
intoxicants or medication.
  (3) The issue of fitness to proceed must be raised by written
motion filed by a party to the proceeding or by the court on its
own motion. The motion may be made at any time after the filing
of the petition. The court shall stay the proceedings on the
petition after the motion is made and may order the youth to
participate in an evaluation under section 2 of this 2011 Act to
determine the youth's fitness to proceed if the court determines
that:
  (a) There is reason to doubt the youth's fitness to proceed;
and
  (b) There is probable cause to believe that the factual
allegations contained in the petition are true.
  (4) The fact that the youth is unfit to proceed does not
preclude any objection through counsel and without the personal
participation of the youth on the grounds that the petition is
insufficient, that the statute of limitations has run, that
double jeopardy principles apply or upon any other ground at the
discretion of the court that the court deems susceptible of fair
determination prior to trial. + }
  SECTION 2.  { + (1) An evaluation ordered under section 1 of
this 2011 Act must be conducted by a psychiatrist, a licensed
psychologist or a regulated social worker. If an evaluation is
requested, the party at whose request the evaluation was ordered
shall notify the court and other parties of the date, time and
location of the evaluation and the name of the evaluator chosen
by the party. A party or the court may submit written information
to the evaluator for consideration. When written information that
has not been provided to the court or an opposing party is
submitted to the evaluator, the party submitting the written
information to the evaluator shall provide the written
information to the court and the opposing party.
  (2)(a) Upon motion of the youth, or upon the court's own
motion, a court shall determine whether the youth is financially
eligible under the policies, procedures, standards and guidelines
of the Public Defense Services Commission.
  (b) If a county court or justice court determines that the
youth is financially eligible, the court shall order the county
to pay the fees and costs described in subsection (3) of this
section from funds available for that purpose.
  (c) If a circuit court determines that the youth is financially
eligible, the court shall order the public defense services
executive director to pay the fees and costs described in
subsection (3) of this section from funds available for that
purpose.
  (3) If a court determines that a youth is financially eligible
under subsection (2) of this section, the court shall order that:
  (a) A reasonable fee be paid to a psychiatrist, licensed
psychologist or regulated social worker in private practice who
conducts the evaluation; and
  (b) All costs, including transportation of the youth, be paid
if the evaluation is conducted by a psychiatrist, licensed
psychologist or regulated social worker employed by the
Department of Human Services or is conducted by a community
mental health and developmental disabilities program established
under ORS 430.610 to 430.695.
  (4) If an evaluation is ordered under section 1 of this 2011
Act at the request of or with the acquiescence of a youth, and
the youth is determined not to be financially eligible under
subsection (2) of this section, the evaluation shall be performed
at the youth's expense.
  (5) If an evaluation is ordered under section 1 of this 2011
Act at the request of the district attorney or juvenile
department, the county shall pay for the expense of the
evaluation.
  (6) After a motion is made by the court or the youth under
section 1 (3) of this 2011 Act, the state shall have the right to
seek an independent evaluation at its own expense. + }
  SECTION 3.  { + (1) The Oregon Health Authority shall:
  (a) Develop training standards for psychiatrists, licensed
psychologists and regulated social workers conducting evaluations
under section 2 of this 2011 Act;
  (b) Develop guidelines for the conduct of evaluations; and
  (c) Provide courts with a current list of qualified evaluators
from which an evaluator may be selected. Neither the parties nor
the court is required to choose an evaluator from the list

provided by the authority, provided that the evaluator chosen is
otherwise qualified.
  (2) The authority shall adopt rules necessary to implement this
section. + }
  SECTION 4.  { + (1) A youth may not be removed from the youth's
current placement for the purpose of an evaluation under section
2 of this 2011 Act unless the court finds:
  (a) That removal is necessary for the evaluation;
  (b) That removal is in the best interest of the youth; and
  (c) If the Department of Human Services has custody of the
youth, that:
  (A) The department made reasonable efforts to prevent or
eliminate the need for removal and make it possible for the youth
to safely return to the youth's current placement; or
  (B) Reasonable efforts have not been made by the department but
reasonable efforts would not have eliminated the need for removal
under paragraphs (a) and (b) of this subsection.
  (2) A youth may not be removed from the youth's current
placement to a hospital or residential facility solely for the
purpose of an evaluation.
  (3) If the court finds that the youth must be removed from the
youth's current placement for the purpose of an evaluation under
section 2 of this 2011 Act, the court must make written findings
that the requirements of this section have been met. The court
shall include in the written findings a brief description of the
department's preventive and reunification efforts.
  (4) Unless ordered by the court upon a finding of good cause, a
removal under this section may not exceed 10 days. + }
  SECTION 5.  { + (1)(a) A person conducting an evaluation under
section 2 of this 2011 Act must file with the clerk of the court
the original report on the evaluation and two copies of the
report. The clerk of the court shall cause the copies to be
delivered to the district attorney and to counsel for the youth.
  (b) The report must be filed with the clerk of the court within
30 days after the order for evaluation is issued, unless the
deadline is extended by written court order for good cause. An
extension under this paragraph may not exceed 30 days.
  (2) A report filed under this section must include:
  (a) A description of the evaluation;
  (b) A list of information that the evaluator reviewed as part
of the evaluation;
  (c) The evaluator's opinion as to whether the youth is unfit to
proceed as described in section 1 of this 2011 Act, including the
evaluator's opinion as to whether the youth suffers from a mental
disease or defect or another condition; and
  (d) If the evaluator is of the opinion that the youth is unfit
to proceed, the evaluator's opinion regarding whether there is a
substantial probability that the youth will gain or regain
fitness to proceed and, if there is a substantial probability
that the youth will gain or regain fitness to proceed, the
specific restorative services under section 10 of this 2011 Act
that are needed and the anticipated duration of those services.
  (3) A report filed under this section may not include
statements made by the youth about the acts alleged in the
petition alleging jurisdiction under ORS 419C.005.
  (4) Statements made to an evaluator by a youth during an
evaluation, or made to persons involved in the evaluation, about
the acts alleged in the petition are not admissible against the
youth in any proceeding relating to the petition.
  (5) Notwithstanding ORS 419A.255, the clerk of the court shall
provide the Oregon Health Authority with copies of the petition
and the report on the evaluation upon request of the
authority. + }
  SECTION 6.  { + (1) Any party to a proceeding initiated by a
petition alleging jurisdiction under ORS 419C.005 may file
written objection to an evaluation report filed under section 5
of this 2011 Act within 14 days after the report is received by
the party.  The objection must state whether the party seeks
another evaluation. If a party files an objection, the court
shall hold a hearing within 21 days after the objection is filed
with the court.
  (2) If a written objection is not filed under this section, and
the court does not adopt the evaluator's opinion that the youth
is fit to proceed, the court shall hold a hearing within 21 days
after the report is filed with the court. The court may postpone
the hearing for good cause shown.
  (3) The court shall decide whether a youth is unfit to proceed
by a preponderance of the competent evidence introduced at a
hearing under this section. The order must set forth findings on
the youth's fitness to proceed. + }
  SECTION 7.  { + (1) If a written objection is not filed under
section 6 of this 2011 Act and the court adopts the evaluator's
opinion that the youth is fit to proceed, the court shall issue a
written order within 10 days after the report is filed with the
court. The order must set forth the findings on the youth's
fitness to proceed.
  (2) If a written objection is filed under section 6 of this
2011 Act, the court shall make a decision and issue a written
order within 10 days after the hearing. The order must set forth
the findings on the youth's fitness to proceed. + }
  SECTION 8.  { + (1) If the court finds that the youth is fit to
proceed, the court shall vacate the stay under section 1 of this
2011 Act.
  (2) If the court finds that the youth is unfit to proceed and
that there is not a substantial probability that the youth will
gain or regain fitness to proceed in the foreseeable future if
provided restorative services under section 10 of this 2011 Act,
the court shall:
  (a) Immediately enter a judgment that dismisses the petition
alleging jurisdiction under ORS 419C.005 without prejudice; or
  (b) If necessary for planning or instituting an alternative
proceeding, then not more than five days after the findings are
made enter a judgment that dismisses the petition without
prejudice.
  (3)(a) If the court finds that the youth is unfit to proceed
and that there is a substantial probability that the youth will
gain or regain fitness to proceed in the foreseeable future if
provided restorative services under section 10 of this 2011 Act,
the court shall continue the order under section 1 of this 2011
Act staying the proceedings and order that the youth receive
restorative services under section 10 of this 2011 Act.
  (b) The court shall forward the order for restorative services
to the Oregon Health Authority. + }
  SECTION 9.  { + (1) The Oregon Health Authority shall
administer a program to provide restorative services under
section 10 of this 2011 Act to youths who:
  (a) Are determined unfit to proceed as described in section 1
of this 2011 Act; and
  (b) Present a substantial probability of gaining or regaining
fitness to proceed in the foreseeable future.
  (2) The authority shall develop qualifications and standards
for persons who provide restorative services under section 10 of
this 2011 Act and shall solicit qualified applicants to provide
those services. + }
  SECTION 10.  { + (1) The Oregon Health Authority shall arrange
for the provision of or begin providing restorative services
within 30 days after receiving a court order under section 8 (3)
of this 2011 Act. The authority shall send a report to the court,
with copies to the parties to the proceeding initiated by a
petition alleging jurisdiction under ORS 419C.005, no later than
90 days after receipt of the order. The report must describe the
nature and duration of restorative services provided, indicate
whether the youth is fit to proceed or presents a substantial
probability of gaining or regaining fitness to proceed and
recommend whether restorative services should be continued and,
if so, the type and duration of the services.
  (2) Within 14 days after receiving a report under subsection
(1) of this section, the court shall determine the youth's
fitness to proceed.
  (3) Upon the recommendation of the authority, the request of a
party or the court's own motion, the court may hold a review
hearing concerning the evaluation of the youth's fitness to
proceed at any time during which restorative services are
provided pursuant to an order under section 8 (3) of this 2011
Act. After a review hearing, the court shall determine the
youth's fitness to proceed.
  (4) If the court finds that a youth is fit to proceed, the
court shall vacate the stay under section 1 of this 2011 Act.
  (5) If the court finds that the youth remains unfit to proceed
and that there is not a substantial probability that the youth
will gain or regain fitness to proceed in the foreseeable future,
the court shall:
  (a) Immediately enter a judgment that dismisses the petition
alleging jurisdiction under ORS 419C.005 without prejudice; or
  (b) If necessary for planning or instituting an alternative
proceeding, then not more than five days after the findings are
made enter a judgment that dismisses the petition without
prejudice.
  (6) If the court finds under subsection (2) or (3) of this
section that the youth remains unfit to proceed, but that the
youth presents a substantial probability of gaining or regaining
fitness to proceed, the court shall order that restorative
services be continued. The court shall order the authority to
send a report to the court, with copies to the parties, within a
specified time, not to exceed 90 days from the time the order is
filed.
  (7) If the court finds under subsection (2) or (3) of this
section that a youth remains unfit to proceed, the youth shall be
discharged within a period of time that is reasonable for making
a determination whether the youth presents a substantial
probability of gaining or regaining fitness to proceed.
Regardless of the number of acts the petition alleging
jurisdiction under ORS 419C.005 alleges that the youth committed,
the youth may not be continued in restorative services for longer
than whichever of the following, measured from the date the
petition is filed, is shorter:
  (a) Three years; or
  (b) The period of time that is equal to the maximum commitment
the court could have imposed if the petition had been
adjudicated.
  (8) If the court orders placement for restorative services, the
court may specify the type of care, supervision, security or
services to be provided by the authority to any youth placed in
the custody of the Department of Human Services and to the
parents or guardians of the youth. The authority may place the
youth in any facility authorized to accept the youth and provide
the necessary services and care. + }
  SECTION 11.  { + A youth may not be removed from the youth's
current placement solely for the purpose of receiving restorative
services pursuant to a court order under section 8 of this 2011
Act unless the court finds:
  (1) That removal is necessary to provide restorative services
under section 10 of this 2011 Act;
  (2) That removal is in the best interest of the youth; and
  (3) If the Department of Human Services has custody of the
youth, that:

  (a) The department made reasonable efforts to prevent or
eliminate the need for removal and make it possible for the youth
to safely return to the youth's current placement; or
  (b) Reasonable efforts have not been made by the department but
reasonable efforts would not have eliminated the need for removal
under subsections (1) and (2) of this section. + }
  SECTION 12.  { + Sections 1, 2, 4 to 8, 10 and 11 of this 2011
Act become operative on January 1, 2012. + }
  SECTION 13.  { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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