Rule 5.645.Mental health or condition of child; competency evaluations

Where substantial evidence raises a doubt about the competency of a child facing a section 601 or 602 petition, the court must suspend the proceedings and hold a competency hearing. Unless the parties stipulate to a finding of incompetency, an expert is appointed to evaluate whether the child has a mental illness, mental disorder, developmental disability, developmental immaturity or other condition affecting competency, and if so whether the child is incompetent as the statute defines it.

The qualifications mirror the previous rule — a licensed psychiatrist with the stated training, or a doctorate-holding licensed psychologist — and add a requirement that the expert be familiar with the competency remediation services actually available to this child. Clinicians with other qualifications may still serve as consultants or witnesses.

Four duties then attach to the evaluation. The expert must attempt a face-to-face interview, and where the child refuses, must still try to observe and make direct contact to gather clinical observations. The expert must review all the records the statute requires, and the county’s written protocol must say who obtains those records and how. The expert must consult the child’s counsel, asking at minimum why counsel doubts competency, what counsel has observed of the child’s behaviour, and how the child interacts with counsel — and no attorney-client privilege is waived by counsel relaying what the child said.

The expert must also gather and document a developmental history: pregnancy complications or drug use, when the child talked, walked and read, psychosocial factors such as abuse, neglect or drug exposure, adverse childhood experiences including early disruption of the parent-child relationship, mental health services received, school performance including any Individualized Education Plan and testing, acculturation issues, biological and neurological factors such as head trauma, and medical history.

The report goes to the court, the child’s counsel, the probation department and the prosecution, and the rule prescribes its contents: the referring court and purpose, the expert’s own training, the procedure used — every source considered, every source sought but not obtained and why, a detailed account of attempts to meet the child and any accommodations made, and any tests administered. Then the developmental history, a summary of the evaluation with current diagnoses where applicable, a detailed analysis of competence, an analysis linking the child’s mental or developmental status to any deficits, and — where deficits are significant — an opinion on whether treatment could restore or attain competency, what that treatment is, whether it is available, and whether it is likely to work within the statutory time limit. Any placement or service recommendation must follow the statute’s principle of the least restrictive environment consistent with public safety.

One protection runs through all of it: what the child says to the appointed expert, and to mental health professionals during remediation, cannot be used against the child in any other hearing in juvenile or adult court — and neither can anything derived from those statements.