H.B. 834
GENERAL ASSEMBLY OF NORTH CAROLINA
Apr 19, 2023
SESSION 2023 HOUSE PRINCIPAL CLERK
H D
HOUSE BILL DRH40420-NBa-154
Short Title: Juvenile Capacity. (Public)
Sponsors: Representative Davis.
Referred to:
1 A BILL TO BE ENTITLED
2 AN ACT TO ESTABLISH A PROCEDURE TO EVALUATE WHETHER A JUVENILE HAS
3 THE CAPACITY TO PROCEED AND TO APPROPRIATE FUNDS.
4 The General Assembly of North Carolina enacts:
5 SECTION 1.(a) G.S. 7B-2401 reads as rewritten:
6 "§ 7B-2401. Determination of incapacity No proceedings when juvenile is not capable to
7 proceed; evidence; temporary commitment; temporary orders.proceed.
8 The provisions of G.S. 15A-1001, 15A-1002, and 15A-1003 apply to all cases in which a
9 juvenile is alleged to be delinquent. No juvenile committed under this section may be placed in
10 a situation where the juvenile will come in contact with adults committed for any purpose.
11 (a) No juvenile may be transferred to superior court for trial as an adult, adjudicated
12 delinquent or undisciplined, or subject to disposition for an offense in juvenile court, including a
13 violation of probation, when, by reason of mental disorder, intellectual disability, neurological
14 disorder, traumatic or acquired brain injury, or developmental immaturity, the juvenile is unable
15 to understand the nature and object of the proceedings against them, to comprehend their own
16 situation in reference to the proceedings, or to assist in their own defense in a rational or
17 reasonable manner.
18 (b) This section does not prevent the court from going forward with any motions which
19 can be handled by counsel without the assistance of the juvenile.
20 (c) This section does not apply to individuals over whom the juvenile court has
21 jurisdiction pursuant to G.S. 7B-1601(d) through (d1) nor to any juvenile who is subject to
22 transfer by indictment pursuant to G.S. 7B-2200.5(a). Capacity to proceed under these
23 circumstances shall not be addressed by the juvenile court. Capacity to proceed can be raised
24 pursuant to Article 56 of Chapter 15A of the General Statutes if the superior court obtains
25 jurisdiction of the proceeding."
26 SECTION 1.(b) Article 24 of Subchapter II of Chapter 7B of the General Statutes is
27 amended by adding the following new sections to read:
28 "§ 7B-2401.1. Definitions.
29 The following definitions apply in this Article:
30 (1) Developmental immaturity. – Incomplete development or delay associated
31 with chronological age, which manifests as a functional limitation in one or
32 more domains including cognitive, emotional, and social development.
33 (2) Division. – The Division of Juvenile Justice and Delinquency Prevention of
34 the Department of Public Safety.
35 (3) Forensic evaluation. – A forensic evaluation is a full examination by a forensic
36 evaluator using evidence-based psychological tools to determine if a juvenile
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 General Assembly Of North Carolina Session 2023
1 has the capacity to proceed. This evaluation shall consist of a review of all
2 available prior mental health and educational records of the juvenile and IQ
3 testing and may include other developmentally appropriate testing for
4 juveniles deemed relevant by the forensic evaluator.
5 (4) Forensic evaluation report. – The written report, by a forensic evaluator, that
6 contains the information required by G.S. 7B-2401.3.
7 (5) Incapacity to proceed. – By reason of mental disorder, intellectual disability,
8 neurological disorder, traumatic or acquired brain injury, or developmental
9 immaturity, the juvenile is unable to understand the nature and object of the
10 proceedings against them, to comprehend their own situation in reference to
11 the proceedings, or to assist in their own defense in a rational or reasonable
12 manner.
13 (6) Remediation. – Services directed only at facilitating the attainment of capacity
14 to proceed for a juvenile who the court finds is incapable to proceed. Such
15 term may include mental health treatment to reduce interfering symptoms,
16 specialized psychoeducational programming, or a combination of these
17 interventions.
18 "§ 7B-2401.2. Procedures to determine capacity; hearing procedures; evidence.
19 (a) The question of capacity of the juvenile to proceed may be raised at any time on
20 motion by the prosecutor, the juvenile, the juvenile's attorney, or the court. The motion shall
21 detail the specific conduct that leads the moving party to question the juvenile's capacity to
22 proceed.
23 (b) When the capacity of the juvenile to proceed is questioned, the court may appoint one
24 or more forensic evaluators qualified by the Department of Health and Human Services to
25 conduct forensic evaluations for juveniles to examine the juvenile and return a forensic
26 evaluation report. Reports so prepared are admissible at the hearing. The court may call any
27 expert so appointed to testify at the hearing with or without the request of either party. This
28 subsection shall not be construed to limit the juvenile's right to retain his or her own expert or the
29 State's right to obtain its own expert.
30 (c) At any time in the case of a juvenile charged with an offense that would be a felony
31 if committed by an adult, the court may order the juvenile to a State facility for the mentally ill
32 for observation and treatment for the period, not to exceed 60 days, necessary to determine the
33 defendant's capacity to proceed. If a juvenile is ordered to a State facility without first having an
34 examination pursuant to subsection (b) of this section, the judge shall make a finding that an
35 examination pursuant to this subsection would be more appropriate to determine the juvenile's
36 capacity. The Division shall return the juvenile to the county when notified that the evaluation
37 has been completed. The director of the facility shall direct his report on the juvenile's condition
38 to the defense attorney and to the clerk of superior court, who shall bring it to the attention of the
39 court. The report is admissible at the hearing.
40 (d) The forensic evaluation report shall be completed within 30 days of the date the
41 forensic evaluation was ordered, consistent with this section. The court may extend the time for
42 completion of the forensic evaluation for good cause shown. The forensic evaluation report shall
43 be provided to the court as follows:
44 (1) The report in a case of a juvenile who is alleged to have committed an offense
45 that would be a misdemeanor if committed by an adult shall be completed and
46 provided to the court no later than 10 days following the completion of the
47 evaluation for a juvenile.
48 (2) The report in the case of a juvenile who is alleged to have committed an
49 offense that would be a felony if committed by an adult shall be completed
50 and provided to the court no later than 30 days following the completion of
51 the evaluation.
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1 (3) In cases where the juvenile challenges the determination made by the
2 court-ordered evaluator and the court orders an independent evaluation, that
3 evaluation and report to the court must be completed within 60 days of the
4 entry of the order by the court.
5 The court may, for good cause shown, extend the time for the provision of the forensic
6 evaluation report to the court for up to 30 additional days. The court may renew an extension of
7 time for an additional 30 days upon request of the State or the juvenile prior to the expiration of
8 the previous extension. In no case shall the court grant extensions totaling more than 120 days
9 beyond the time periods otherwise provided in this subsection.
10 (e) Any report made to the court pursuant to this section shall be forwarded to the clerk
11 of superior court in a sealed envelope addressed to the attention of a presiding judge, with a
12 covering statement to the clerk of the fact of the examination of the juvenile and any conclusion
13 as to whether the juvenile has or lacks capacity to proceed. If the juvenile is being held in the
14 custody of the Division, the clerk shall send a copy of the covering statement to the Division.
15 The Division and any persons employed by the Division shall maintain the copy of the covering
16 statement as a confidential record. A copy of the full report shall be forwarded to defense counsel.
17 If the question of the juvenile's capacity to proceed is raised at any time, a copy of the full report
18 must be forwarded to the prosecutor. Until the question of the juvenile's capacity is raised, the
19 full report to the court shall be kept under such conditions as are directed by the court, and its
20 contents shall not be revealed except the report and the relevant confidential information
21 previously ordered released under G.S. 7B-2401.3(c) shall be released to the program where the
22 defendant is receiving remediation services and as directed by the court. Any report made to the
23 court pursuant to this section shall be maintained as a confidential record.
24 (f) For any juvenile who is alleged to be delinquent and is less than 12 years of age, the
25 court shall inquire of the prosecutor and the juvenile's attorney regarding the juvenile's capacity
26 to proceed the first time the juvenile appears in court. If the prosecutor or the juvenile's attorney
27 requests additional time to determine whether it is necessary to raise the question of the juvenile's
28 capacity to proceed, the court shall allow the question of capacity to be raised at any time pursuant
29 to subsection (a) of this section.
30 (g) An order for a forensic evaluation shall stay juvenile proceedings, with the exception
31 of hearings to review the need for continued nonsecure or secure custody and proceedings related
32 to the transfer of jurisdiction by indictment pursuant to G.S. 7B-2200.5(a), until capacity has
33 been determined pursuant to this Subchapter.
34 (h) When the capacity of the juvenile to proceed is questioned, the court shall hold a
35 hearing to determine the juvenile's capacity to proceed. If an evaluation is ordered pursuant to
36 subsection (b) of this section, the hearing shall be held upon receipt of the forensic evaluation
37 report. The clerk shall provide notice to the juvenile and the prosecutor in accordance with
38 G.S. 7B-1807. The order of the court shall contain findings of fact to support its determination
39 of the juvenile's capacity to proceed. The parties may stipulate that the juvenile is capable to
40 proceed but shall not be allowed to stipulate that the juvenile lacks capacity to proceed. If the
41 court finds the juvenile is capable to proceed, the juvenile proceedings shall no longer be stayed
42 and the court shall set a date for such further proceedings. If the juvenile's capacity to proceed is
43 contested, the juvenile bears the burden of proving the juvenile is incapable to proceed by a
44 preponderance of the evidence. At a contested hearing, the State and the juvenile may call
45 witnesses and present evidence. Nothing in this subsection may be construed to prohibit the State
46 or the juvenile from calling other expert witnesses to testify at a capacity hearing. If appropriate,
47 the court may order remediation services in accordance with G.S. 7B-2401.4.
48 (i) A juvenile who has been found incapable to proceed by the court shall not be subject
49 to transfer, adjudication, disposition, or modification of disposition so long as the incapacity
50 exists pursuant to this Article.
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1 (j) If the court orders a forensic evaluation, the court shall order that the evaluation be
2 conducted in the least restrictive environment, considering the best interests of the juvenile and
3 the safety of the public. The forensic evaluation may be conducted in any location in this State.
4 The forensic evaluation may be conducted outside of this State for juveniles in residential
5 facilities on an individual basis as indicated by the order of the court.
6 (k) The Division shall arrange for the transportation of juveniles who are confined in
7 secure custody to the ordered location of the forensic evaluation.
8 "§ 7B-2401.3. Juvenile forensic evaluation credentialing; conducting forensic evaluations;
9 written reports; compensation of experts.
10 (a) The Department of Health and Human Services shall designate and oversee a
11 credentialing body which will set and maintain the minimum standards to qualify professionals
12 who are court-appointed to conduct forensic evaluations as ordered pursuant to G.S. 7B-2401.2.
13 The credentialing body shall determine that a qualified professional has demonstrated knowledge
14 and experience with age-appropriate and developmentally appropriate methods for evaluating
15 juvenile functional capacities to proceed. This subsection shall not be construed to limit the
16 juvenile's right to retain his or her own expert.
17 (b) Qualified professionals who have been conducting forensic evaluations of juveniles
18 prior to enactment of this section shall be deemed to possess the minimum requirements to
19 become an evaluator. Such qualified professionals shall be required to satisfy the qualification
20 standards developed by the Department of Health and Human Services within 12 months of the
21 adoption of those standards pursuant to subsection (a) of this section.
22 (c) A presiding district court judge of this State who orders an examination pursuant to
23 G.S. 7B-2401.2 shall order the release of relevant confidential information to the forensic
24 evaluator, including, but not limited to, the juvenile petition, orders for secure or nonsecure
25 custody, the law enforcement incident report, the juvenile's delinquency history, detention
26 records, any prior medical and mental health records of the juvenile, and any school records of
27 the juvenile after providing the juvenile with reasonable notice and an opportunity to be heard
28 and then determining that the information is relevant and necessary to the hearing of the matter
29 before the court and unavailable from any other source. This subsection shall not be construed to
30 relieve any court of its duty to conduct hearings and make findings required under relevant
31 federal law before ordering the release of any private medical or mental health information or
32 records related to substance abuse or HIV status or treatment. The records may be surrendered
33 to the court for in camera review if surrender is necessary to make the required determinations.
34 The records shall be withheld from public inspection and, except as provided in this subsection,
35 may be examined only by order of the court.
36 (d) No statement or disclosure made by the juvenile during the forensic evaluation
37 regarding their responsibility for a criminal act that can result either in an adjudication of
38 delinquency or transfer of a matter to superior court for trial as an adult is admissible in any
39 juvenile or criminal proceeding against the juvenile or defendant. The forensic evaluation shall
40 not include any such statement.
41 (e) The forensic evaluator shall consider all of the following as part of the forensic
42 evaluation:
43 (1) Whether the juvenile is capable to proceed, incapable to proceed, or incapable
44 to proceed with an ability to attain capacity in the foreseeable future with
45 remediation services.
46 (2) The basis of the juvenile's incapacity, to include mental disorder, intellectual
47 disability, neurological disorder, traumatic or acquired brain injury, or
48 developmental immaturity.
49 (3) The capacity of the juvenile to do any of the following:
50 a. Appreciate the allegations against the juvenile.
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1 b. Appreciate the range and nature of allowable dispositions that may be
2 imposed in the proceedings against the juvenile.
3 c. Understand the roles of the participants and the adversary nature of the