2152.59 Procedure upon determination of competency or lack of competency.

(A) If after a hearing held pursuant to section 2152.58 of the Revised Code the court determines that a child is competent, the court shall proceed with the delinquent child's proceeding as provided by law. No statement that a child makes during an evaluation or hearing conducted under sections 2152.51 through 2152.59 of the Revised Code shall be used against the child on the issue of responsibility or guilt in any child or adult proceeding.

(B) If after a hearing held pursuant to section 2152.58 of the Revised Code the court determines that the child is not competent and cannot attain competency within the period of time applicable under division (D)(2) of this section, the court shall dismiss the charges without prejudice, except that the court may delay dismissal for up to ninety calendar days and do either of the following:

(1) Refer the matter to a public children services agency and request that agency determine whether to file an action in accordance with section 2151.27 of the Revised Code alleging that the child is a dependent, neglected, or abused child;

(2) Assign court staff to refer the child or the child's family to the local family and children first council or an agency funded by the department of mental health and addiction services or department of developmental disabilities or otherwise secure services to reduce the potential that the child would engage in behavior that could result in delinquent child or other criminal charges.

(C) If after a hearing held pursuant to section 2152.58 of the Revised Code the court determines that a child is not competent but could likely attain competency by participating in services specifically designed to help the child develop competency, the court may order the child to participate in services specifically designed to help the child develop competency at county expense. The court shall name a reliable provider to deliver the competency attainment services and shall order the child's parent, guardian, or custodian to contact that provider by a specified date to arrange for services.

(D) The competency attainment services provided to a child shall be based on a competency attainment plan described in division (E)(2) of this section and approved by the court. Services are subject to the following conditions and time periods measured from the date the court approves the plan:

(1) Services shall be provided in the least restrictive setting that is consistent with the child's ability to attain competency and the safety of both the child and the community. If the child has been released on temporary or interim orders and refuses or fails to cooperate with the service provider, the court may reassess the orders and amend them to require a more appropriate setting.

(2) No child shall be required to participate in competency attainment services for longer than is required for the child to attain competency. The following maximum periods of participation apply:

(a) If a child is ordered to participate in competency attainment services that are provided outside of a residential setting, the child shall not participate in those services for a period exceeding three months if the child is charged with an act that would be a misdemeanor if committed by an adult, six months if the child is charged with an act that would be a felony of the third, fourth, or fifth degree if committed by an adult, or one year if the child is charged with an act that would be a felony of the first or second degree, aggravated murder, or murder if committed by an adult.

(b) If a child is ordered to receive competency attainment services that are provided in a residential setting that is operated solely or in part for the purpose of providing competency attainment services, the child shall not participate in those services for a period exceeding forty-five calendar days if the child is charged with an act that would be a misdemeanor if committed by an adult, three months if the child is charged with an act that would be a felony of the third, fourth, or fifth degree if committed by an adult, six months if the child is charged with an act that would be a felony of the first or second degree if committed by an adult, or one year if the child is charged with an act that would be aggravated murder or murder if committed by an adult.

(c) If a child is ordered into a residential, detention, or other secured setting for reasons other than to participate in competency attainment services and is also ordered to participate in competency attainment services concurrently, the child shall participate in the competency attainment services for not longer than the relevant period set forth in division (D)(2)(a) of this section.

(d) If a child is ordered to participate in competency attainment services that require the child to live for some but not all of the duration of the services in a residential setting that is operated solely or in part for the purpose of providing competency attainment services, the child shall participate in the competency attainment services for not longer than the relevant period set forth in division (D)(2)(b) of this section. For the purpose of calculating a time period under division (D)(2)(d) of this section, two days of participation in a nonresidential setting shall equal one day of participation in a residential setting.

(3) A child who receives competency attainment services in a residential setting that is operated solely or partly for the purpose of providing competency attainment services is in detention for purposes of section 2921.34 and division (B) of section 2152.18 of the Revised Code during the time that the child resides in the residential setting.

(E)

(1) Within ten business days after the court names the provider responsible for the child's competency attainment services under division (D) of this section, the court shall deliver to that provider a copy of each competency assessment report it has received for review. The provider shall return the copies of the reports to the court upon the termination of the services.

(2) Not later than thirty calendar days after the child contacts the competency attainment services provider under division (C) of this section, the provider shall submit to the court a plan for the child to attain competency. The court shall provide copies of the plan to the prosecuting attorney, the child's attorney, the child's guardian ad litem, if any, and the child's parents, guardian, or custodian.

(F) The provider that provides the child's competency attainment services pursuant to the competency attainment plan shall submit reports to the court on the following schedule:

(1) A report on the child's progress every thirty calendar days and on the termination of services. The report shall not include any details of the alleged offense as reported by the child.

(2) If the provider determines that the child is not cooperating to a degree that would allow the services to be effective to help the child attain competency, a report informing the court of the determination within three business days after making the determination;

(3) If the provider determines that the current setting is no longer the least restrictive setting that is consistent with the child's ability to attain competency and the safety of both the child and the community, a report informing the court of the determination within three business days after making the determination;

(4) If the provider determines that the child has achieved the goals of the plan and would be able to understand the nature and objectives of the proceeding against the child and to assist in the child's defense, with or without reasonable accommodations to meet the criteria set forth in division (B) of section 2152.56 of the Revised Code, a report informing the court of that determination within three business days after making the determination. If the provider believes that accommodations would be necessary or desirable, the report shall include recommendations for accommodations.

(5) If the provider determines that the child will not achieve the goals of the plan within the applicable period of time under division (D)(2) of this section, a report informing the court of the determination within three business days after making the determination. The report shall include recommendations for services for the child that would support the safety of the child or the community.

(G) The court shall provide copies of any report made under division (F) of this section to the prosecuting attorney, the child's attorney, and the child's guardian ad litem, if any. The court shall provide copies of any report made under division (F) of this section to the child's parents, guardian, or custodian unless the court finds that doing so is not in the best interest of the child.

(H)

(1) Within fifteen business days after receiving a report under division (F) of this section, the court may hold a hearing to determine if a new order is necessary. To assist in making a determination under division (H) of this section, the court may order a new competency evaluation in accordance with section 2152.53 of the Revised Code. Until a new order is issued or the required period of participation expires, the child shall continue to participate in competency attainment services.

(2) If after a hearing held under division (H)(1) of this section the court determines that the child is not making progress toward competency or is so uncooperative that attainment services cannot be effective, the court may order a change in setting or services that would help the child attain competency within the relevant period of time under division (D)(2) of this section.

(3) If after a hearing held under division (H)(1) of this section the court determines that the child has not or will not attain competency within the relevant period of time under division (D)(2) of this section, the court shall dismiss the delinquency complaint without prejudice, except that the court may delay dismissal for up to ninety calendar days and do either of the following:

(a) Refer the matter to a public children services agency and request that agency determine whether to file an action in accordance with section 2151.27 of the Revised Code alleging that the child is a dependent, neglected, or abused child;

(b) Assign court staff to refer the child or the child's family to the local family and children first council or an agency funded by the department of mental health and addiction services or department of developmental disabilities or otherwise secure services to reduce the potential that the child would engage in behavior that could result in delinquency or other criminal charges.

(4) A dismissal under division (H)(3) of this section does not preclude a future delinquent child proceeding or criminal prosecution as provided under section 2151.23 of the Revised Code if the child eventually attains competency.

(5) If after a hearing held under division (H)(1) of this section the court determines that the child has attained competency, the court shall proceed with the delinquent child's proceeding in accordance with division (A) of this section.

(6) A dismissal under this section does not bar a civil action based on the acts or omissions that formed the basis of the complaint.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.131, SB 337, §1, eff. 9/28/2012.

Added by 129th General AssemblyFile No.29, HB 86, §1, eff. 9/30/2011.