State prepares to meet new child legal case competency requirements

by Leslie Bonilla Muñiz, Indiana Capital Chronicle
December 13, 2022

Nearly two decades after the Indiana Supreme Court declared that certain legal proceedings for adults didn’t apply to children — and a year after state lawmakers patched that hole in the books — new juvenile competency requirements are weeks from going into effect.

State and local officials are wrapping up efforts to comply, and create smoother, more fair legal proceedings — but it’s been a complex process, stakeholders told the Commission on Improving the Status of Children in Indiana at a meeting this month.

“The statute is cumbersome. And to try to dissect it and break it apart and to apply it is exceedingly difficult,” said Ripley Circuit Court Judge Ryan King of the 2021 law, Senate Enrolled Act 368. He leads a work group formed to flesh out the details so courts can implement the law consistently.

There’s little time left before a December 31 deadline.

Not for kids

Under SEA 368, children are fit to stand trial when they understand the legal proceedings against them, and can help with their own defense.

But in a 2004 case, the Indiana Supreme Court said that laws dealing with adult competency didn’t apply to children. Meanwhile, laws for children didn’t specifically address competency.

“It was never clear who should evaluate competency and whether and how a child could attain it,” wrote Julie Whitman, children’s commission executive director, in a 2021 article.

And narrow deadlines in law meant judges were going through with delinquency proceedings for children with serious mental health conditions, Whitman wrote, and weren’t able to get those children the intensive treatment they needed.

But beginning in 2018, the Children’s Law and Policy Initiative convened meetings tackling juvenile competency combining judges, prosecutors, defense attorneys, mental health professionals and more.

SEA 368 became law in 2021.

It lays out a process for courts to appoint competency evaluators, establishes deadlines for the evaluations, and provides that courts hold hearings to decide if a child is competent, could attain competency within a given timeframe, or can’t make that timeframe.

The law has instructions for competency attainment services, and for what to do when a child is declared competent or incompetent.

But, Whitman noted at the time, implementation is what matters.

Work group has its work cut out

King, the work group chair, said the organization is developing a document detailing what juvenile competency evaluation reports should include: detailed information about the child, the charges, the goal of the evaluation, interviews, testing, a mental health evaluation, expert analysis and more.

The work group has also created a flow chart with deadlines for the competency evaluations and related court hearings, and a variety of order forms.

Indiana law, King noted, is more stringent than elsewhere. It requires that a psychiatrist experienced in juvenile competency — or a psychologist endorsed by a state board — perform the evaluations. In other states, a broader array of mental health professionals can do so.

“You’ll find that there’s probably a lot of psychologists out there, but not necessarily that have expertise in juvenile competency,” King said.

How to become “competent”

Indiana already has competency attainment services, said Waylon James of the Indiana Department of Child Services.

“Hoosier children are guaranteed the right to due process and a fair trial,” James said.

The department contracts with Indianapolis-based Damar Services and Carmel-based Syra Health, who will both serve children statewide.

There are expectations, James said: individualized, in-person services in most cases, state written approval for virtual service provision, state approval of the curriculum, case management services and more.

That curriculum needs to include “comprehensive instruction” about the delinquency trial process, the child’s own legal rights and some assessments.

“Our goal is to have this bill live by December 30,” James said. Those involved will “continuously [be] having meetings leading up to that to be able to prepare for that kickoff.”

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