Criminal Defense Attorneys for Michigan Children
Parents seeking help for a child with mental health issues will find that Michigan’s new law presents new challenges. Children facing criminal prosecution and competency issues should always have the assistance of a qualified attorney. The Kronzek Firm PLC offers free consultations to parents trying to help their child with a criminal case.
In March 2013, Michigan’s new juvenile competency statute went into effect, outlining standards to determine a child’s competency to stand trial in juvenile delinquency hearings. This page is designed to provide an overview of certain key provisions.
Presumptions
- Juveniles 10 years old and up are presumed competent unless challenged by a party.
- Juveniles under age 10 are presumed incompetent to proceed.
Competency Evaluation
A competency evaluation may be ordered by the court based on its own motion, or if requested by the prosecuting attorney, the child’s attorney, or the child. Additionally, the issue of competency may be raised at any time during the proceeding. Once the issue of competency is raised, the proceeding temporarily ceases until competency is determined.
Furthermore , this evaluation is to occur in the least restrictive environment. There is a presumption of conducting the evaluation while the child remains in the custody of a parent or legal guardian unless conditions exist to warrant removal first.
In addition, this evaluation is to be conducted by a qualified juvenile mental health examiner. The examiner provides the court with an opinion indicating whether the juvenile is competent to move forward.
The court will order the prosecuting attorney to provide the juvenile’s attorney all necessary information related to competency; and order attorneys on both sides to submit information about the offense and background information. Except where prohibited by federal law, the court will require the juvenile’s attorney to provide the following records: (1) School records; (2) Psychiatric records; (3) Medical records; and (4) Child protective services records.
All information must be provided to the examiner within 10 days after the court orders the competency evaluation. No later than 30 days from receiving the court order, the examiner will submit a written report to the court; although an extension is available.
The report must describe the content, nature, and extent of the exam; a clinical assessment; and the abilities and deficits related to competency.
Regarding evaluating the abilities and deficits, two areas are focused upon.
First is an evaluation of the juvenile’s ability to factually and rationally understand the nature and purpose of the proceedings.
Some factors considered include whether the following abilities exist:
- Understands the role of the court participants and the adversarial nature of the hearings;
- Appreciates the seriousness of the criminal charges;
- Realistically evaluates and understands likely outcomes;
- Able to engage in thinking of the future.
Next is the ability to give meaningful assistance to the juvenile’s attorney in case preparation. Factors considered include:
- Able to provide a lawyer a reasonably coherent description of events and facts related to the charge;
- Considers how his or her actions affect others;
- Can express himself or herself in a coherent manner;
- Has logical decision-making and problem-solving skills;
- Able to weigh available options by considering the consequences, including regarding pleas, waivers, and legal strategies;
- Able to display appropriate courtroom behavior.
The report must also discuss any psychiatric or psychological disorders or cognitive impairment. Moreover, the report must address the prognosis and the services required in order to restore the juvenile’s competency.
Competency Hearing
Within 30 days after the filing of the report, the court will conduct a hearing to decide if a juvenile is competent to proceed. The court may find that the juvenile is competent and the case resumes. However, the court could also find that the juvenile is incompetent, and that he or she is either likely or unlikely to be restored.
If the juvenile is found incompetent and unlikely to be restored, the court will dismiss the charges with prejudice and may decide custody of the juvenile.
If the juvenile is determined incompetent and may be restored in the near future, one of the following occurs:
- For traffic offenses or low level misdemeanors, the matter will be dismissed;
- For a serious misdemeanor, the court may either dismiss or suspend the matter;
- If the crime is a felony, proceedings will be suspended.
Restoration
Additionally, before a restoration order is issued, the court will hold a hearing to find the least restrictive environment for the restoration to be completed.
The court could issue a restoration order that is valid for 60 days or until one of the following conditions occurs, whichever is first: (1) the examiner submits a report based on information from the restoration provider showing the juvenile regained competency, or there is no substantial probability that the juvenile will become competent within the time frame of the order; (2) the charges in question were dismissed; or (3) the juvenile turns 18 years old. Additionally, the restoration order may be renewed for 60 days up to a maximum of 120 days.
Furthermore, the qualified restoration provider will submit a report to the court and the examiner every 30 days or sooner, if the following occurs: (1) the restoration provider finds that the juvenile is no longer incompetent; or (2) the provider finds there is no substantial probability that the juvenile will be competent to proceed within the time frame of the order.
In cases where the juvenile is found incompetent and unable to be restored, the following will happen: (1) First, the court will determine custody of the juvenile. The court may initiate civil commitment proceedings under the Mental Health Code; or the juvenile will be released to his or her parents or legal guardians under appropriate conditions. (2) Secondly, criminal charges against the juvenile will be dropped.
Treatment Issues
If the juvenile has a serious emotional disturbance—and is incompetent and unable to be restored because of this—then the court may order mental health services at its discretion. Within 14 days before an expiration of an order for treatment, the mental health agency will submit a report to the court and the examiner regarding the juvenile. After reviewing the report, the court will either renew the order for additional treatment for 60 days; or determine custody and dismiss the charges. Any renewed order cannot exceed a total of 120 days.
Don’t Delay
In all instances, Children facing criminal prosecution require the assistance of a skilled criminal defense attorney. We invite parent inquiries and will provide an initial analysis of your son or daughter’s case at no charge.