Indiana Code
Chapter 26. Competency
31-37-26-6. Competency Determination Made by the Court; Competency Attainment Services

Effective 12-31-2022.
Sec. 6. (a) If the court determines that the juvenile is competent, the court shall proceed with the delinquency proceedings as provided by law. No statement that a child makes during an evaluation or hearing conducted under this chapter may be used against the child in any juvenile or adult proceeding.
(b) If the court determines that the juvenile is not competent, the court shall determine whether the child may attain competency within:
(1) one hundred eighty (180) days, if the child is alleged to have committed an act that would be a felony if committed by an adult; or
(2) ninety (90) days, if the child is alleged to have committed an act that would not be a felony if committed by an adult.
(c) If the court determines that the juvenile is not competent and will not attain competency within the relevant time periods as described in subsection (b), the court shall:
(1) dismiss the allegations without prejudice; or
(2) delay dismissing the allegations for not more than ninety (90) days and:
(A) refer the matter to the department and request that the department determine whether the child may be a child in need of services; or
(B) order a probation officer to:
(i) refer the child or the child's family to an entity certified or licensed by the division of mental health and addiction, or the bureau of developmental disabilities services; or
(ii) otherwise secure services to reduce the potential that the child will engage in behavior that could result in delinquent child or other criminal charges.
If the court determines that the options described in subdivisions (1) and (2) are not in the best interests of the child, the court may, if it appears to the court that a child is mentally ill, refer the matter to the court having probate jurisdiction for civil commitment proceedings under IC 12-26 or initiate a civil commitment proceeding under IC 12-26.
(d) If the court determines that the juvenile is not competent but is reasonably likely to attain competency within the relevant time periods as described in subsection (b), the court may order the child to participate in services, other than a state institution, specifically designed to help the child attain competency, to be paid by the department subject to the requirements described in IC 31-37. If the court orders the child to receive competency attainment services, the court shall:
(1) identify a qualified provider to deliver the competency attainment services; and
(2) order a probation officer to contact that provider by a specified date to arrange for services.
(e) Not later than ten (10) days after the court identifies the qualified competency attainment services provider as described in subsection (d), the court shall transmit to the 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.
(f) Not later than thirty (30) days after the probation officer contacts the competency attainment services provider under subsection (d), the provider shall submit to the court a competency attainment plan for the court's approval. If the court approves the plan, 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.
(g) Competency attainment services provided to a child 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 a temporary or interim order and refuses or fails to cooperate with the provider, the court may reassess the order and amend it to require a more appropriate setting.
(2) No child may be required to participate in competency attainment services for longer than is required for the child to attain competency. In addition, if a child is:
(A) in a nonresidential setting, the child may not be required to participate for more than:
(i) ninety (90) days if the child is charged with an act that would not be a felony if committed by an adult; or
(ii) one hundred eighty (180) days if the child is charged with an act that would be a felony or murder if committed by an adult;
(B) in a residential setting that is operated solely or in part for the purpose of providing competency attainment services, the child may not be ordered to participate for more than:
(i) forty-five (45) days if the child is charged with an act that would not be a felony if committed by an adult;
(ii) ninety (90) days if the child is charged with an act that would be a Level 4, Level 5, or Level 6 felony if committed by an adult; or
(iii) one hundred eighty (180) days if the child is charged with an act that would be murder or a Level 1, Level 2, or Level 3 felony if committed by an adult; and
(C) in a residential, detention, or other secured setting where the child has been placed for reasons other than to participate in competency attainment services, but where the child is also ordered to participate in competency attainment services, the child may not be required to participate for more than:
(i) ninety (90) days if the child is charged with an act that would not be a felony if committed by an adult; or
(ii) one hundred eighty (180) days if the child is charged with an act that would be a felony or murder if committed by an adult.
(h) The provider that provides the child's competency attainment services shall submit reports to the court as follows:
(1) The provider shall report on the child's progress every thirty (30) days, and upon the termination of services. The report may not include any details of the alleged offense as reported by the child.
(2) 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, the provider shall report this to the court within three (3) days of the determination.
(3) If the provider determines that the child has achieved the goals of the plan and is 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, the provider shall issue a report informing the court of that determination within three (3) days of the determination. If the provider believes that accommodations are necessary or desirable, the report shall include recommendations for accommodations.
(4) If the provider determines that the child will not achieve the goals of the plan within the applicable period of time under this section, the provider shall issue a report informing the court of the determination within three (3) days of the determination. The report shall include recommendations for services for the child that would support the safety of the child or the community.
(i) The court shall provide a copy of any report received under subsection (h) to the following:
(1) The prosecuting attorney.
(2) The attorney representing the child.
(3) The child's guardian ad litem, if any.
(4) The child's parent, guardian, or custodian, unless the court finds that providing a copy of the report is not in the best interests of the child.
(j) Not later than fifteen (15) days after receiving a report under subsection (h), the court may hold a hearing to determine if it should issue a new order. The court may order a new competency evaluation if the court believes that it may assist the court in making its determination. The child shall continue to participate in competency attainment services until a new order is issued or the required period of participation ends.
(k) If, following a hearing held under subsection (j), the court determines that the child has not or will not attain competency within the relevant period of time under subsection (g), the court shall:
(1) dismiss the allegations without prejudice; or
(2) delay dismissing the allegations for not more than ninety (90) days and:
(A) refer the matter to the department and request that the department determine whether the child may be a child in need of services; or
(B) order a probation officer to:
(i) refer the child or the child's family to an entity certified or licensed by the division of mental health and addiction, or the bureau of developmental disabilities services; or
(ii) otherwise secure services to reduce the potential that the child will engage in behavior that could result in delinquent child or other criminal charges.
If the court determines that the options described in subdivision (1) or (2) are not in the best interests of the child, the court may, if it appears to the court that a child is mentally ill, refer the matter to the court having probate jurisdiction for civil commitment proceedings under IC 12-26 or initiate a civil commitment proceeding under IC 12-26.
(l) If, following a hearing held under subsection (j), the court determines that the child is competent, the court shall proceed with the delinquency proceedings as described in subsection (a).
(m) Allegations dismissed under subsections (c) and (k) do not preclude:
(1) a future proceeding against the child if the child eventually attains competency; or
(2) a civil action against the child based on the conduct that formed the basis of the allegations against the child.
(n) A referral made under subsection (c) or (k) does not establish an obligation on the division of mental health and addiction, a state institution, or the bureau of developmental disabilities services to provide services to a referred child.
(o) Proceedings under this chapter do not toll the time limits under IC 31-37-11-5.
As added by P.L.157-2021, SEC.3.

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