Transfer of proceedings

(a) If at any time following a finding that a child is incompetent to proceed the court determines that such child is a resident of a county of this state other than the county in which the court sits, the court may transfer the proceeding to the county of such child’s residence. (b) When any case is transferred, certified copies of all legal, social history, health, or mental health records pertaining to the case on file 1313 15-11-655 with the clerk of the court shall accompany the transfer. Compliance with this subsection shall terminate jurisdiction in the transferring court and initiate jurisdiction in the receiving court. (c) If a court determines that such child’s competency is remediated, jurisdiction of the case may be returned to the transferring court for the adjudication hearing and any subsequent proceedings. History. — Code 1981, § 15-11-654, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242. 15-11-655. Mental competency hearing; burden of proof; notice; rights during hearing; procedure; findings. (a) A hearing to determine if a child is incompetent to proceed shall be conducted within 60 days after the initial court order for evaluation. The hearing may be continued by the court for good cause shown. (b) Written notice shall be given to all parties and the victim at least ten days prior to such hearing. (c) The burden of proving that a child is incompetent to proceed shall be on such child. The standard of proof necessary for proving mental competency shall be a preponderance of the evidence. (d) At the hearing to determine incompetency to proceed, a child’s attorney and the prosecuting attorney shall have the right to: (1) Present evidence; (2) Call and examine witnesses; (3) Cross-examine witnesses; and (4) Present arguments. (e) The examiner appointed by the court shall be considered the court’s witness and shall be subject to cross-examination by both a child’s attorney and the prosecuting attorney. (f ) The court’s findings of fact shall be based on any evaluations of a child’s mental condition conducted by licensed psychologists or psychiatrists appointed by the court, any evaluations of a child’s mental condition conducted by independent licensed psychologists or psychiatrists hired by the parties, and any additional evidence presented. (g) If the court finds that a child is not incompetent to proceed, the proceedings which have been suspended shall be resumed. The time limits under Article 5 or 6 of this chapter for adjudication and disposition of the petition shall begin to run from the date of the order finding such child mentally competent. 1314 15-11-655 (h) Copies of the court’s findings shall be given to the parties within ten days following the issuance of such findings. History. — Code 1981, § 15-11-655, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242. 15-11-656. Disposition of remediation. incompetent child; competency (a) If the court finds that a child is incompetent to proceed but such child’s incompetence may be remediated, if such child is alleged: (1) To be a child in need of services, the court shall either dismiss the petition without prejudice or order competency remediation services for such child; or (2) To have committed a delinquent act, the court may order competency remediation services for such child. (b) In determining whether to order competency remediation services, the court shall consider: (1) Whether there is probable cause to believe the allegations in the petition are true; (2) The nature of the incompetency; (3) An incompetent child’s age; and (4) The nature of the act alleged to have been committed by the incompetent child, in particular whether the act is a serious violent felony as such term is defined in Code Section 17-10-6.1. (c) If a child is determined to be incompetent to proceed, the court has ordered that competency remediation services should be provided, and: (1) Such child is alleged to have committed an act that would be a felony if committed by an adult, the court may retain jurisdiction of such child for up to two years after the date of the order of incompetency, with review hearings at least every six months to redetermine competency or proceed as provided in subsection (f ) of this Code section; or (2) A child is alleged to have committed an act that would be a misdemeanor if committed by an adult, the court may retain jurisdiction of a child for up to 120 days after the date of the order of incompetency or proceed as provided in subsection (f ) of this Code section. (d) All court orders determining incompetency shall include specific written findings by the court as to the nature of the incompetency and 1315 15-11-656 the mandated outpatient competency remediation services. If such child is in an out-of-home placement, the court shall specify the type of competency remediation services to be performed at such child’s location. A child may be placed in a facility or program authorized or designated by DBHDD if the court makes a finding by clear and convincing evidence that all available less restrictive alternatives, including treatment in community residential facilities or community settings which would offer an opportunity for improvement of a child’s condition, are inappropriate. (e) A child who is incompetent to proceed shall not be subject to transfer to superior court, adjudication, disposition, or modification of disposition so long as the mental incompetency exists. (f ) If the court determines that an alleged delinquent child is incompetent to proceed, the court may dismiss the petition without prejudice. (g)(1) If a child is detained in a secure residential facility or nonsecure residential facility and the court determines that such child is incompetent to proceed, within five days of such determination the court shall issue an order to: (A) Immediately release such child to the appropriate parent, guardian, or legal custodian; or (B) Detain such child in the least restrictive setting, if such child is alleged to have committed a delinquent act and the court finds by clear and convincing evidence that such child’s detention or care is required: (i) To reduce the likelihood that he or she may inflict serious bodily harm to others; (ii) Because he or she has a demonstrated pattern of theft or destruction of property such that detention is required to protect the property of others; or (iii) Because detention is necessary to secure his or her presence in court to protect the jurisdiction and processes of the court. (2) If such child is unrestorably incompetent to proceed, such child shall not be detained in a secure residential facility or nonsecure residential facility after a comprehensive services plan has been adopted as provided in Code Section 15-11-451. If such child is incompetent to proceed but his or her incompetence may be remediated, such child shall not be detained in a secure residential facility or nonsecure residential facility for any longer period of time than is allowed for the disposition of a delinquent act under Code 1316 15-11-657 Section 15-11-601 or for the disposition of a class A designated felony act or class B designated felony act under Code Section 15-11-602, as applicable. History. — Code 1981, § 15-11-656, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242; Ga. L. 2014, p. 780, § 1-46/SB 364; Ga. L. 2017, p. 604, § 2-2/SB 175. 15-11-657. Restoration to competency; remediation orders and reports. (a) All competency remediation service orders issued by the court shall contain: (1) The name of the competency remediation service program provider and the location of the program; (2) A statement of the arrangements for a child’s transportation to the program site; (3) The length of the competency remediation service program; (4) A statement of the arrangements for a child’s transportation after the program ends; and (5) A direction concerning the frequency of reports required by the court. (b) DBHDD or a licensed psychologist or psychiatrist shall file a written report with the court: (1) Not later than six months after the date the court orders that competency remediation be attempted but prior to the first review hearing; (2) Every six months after the first review hearing if a child remains incompetent to proceed and under an order for remediation; (3) At any time DBHDD or a licensed psychologist or psychiatrist opines a child has attained competency; or (4) At shorter intervals designated by the court in its competency remediation order. (c) DBHDD or the licensed psychologist or psychiatrist written report shall include, but not be limited to: (1) Whether a child’s competency can be remediated or whether a child is likely to remain incompetent to proceed for the foreseeable future; (2) Whether additional time is needed to remediate a child’s competency; and 1317 15-11-658 (3) If a child has attained competency, the effect, if any, of any limitations that are imposed by any medication or other treatment used in the effort to remediate competency. History. — Code 1981, § 15-11-657, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242. 15-11-658. Disposition of a child found unrestorably incompetent to proceed.