In re People ex. rel. B.B.A.M.

          Original Proceeding Pursuant to C.A.R. 21 Jefferson County District Court Case No. 17JD452 Honorable Ann Gail Meinster, Judge

         Rule Made Absolute

          Attorneys for Petitioner: Peter A. Weir, District Attorney, First Judicial District Colleen R. Wort, Appellate Deputy District Attorney Golden, Colorado

          Attorney for Juvenile: Diana M. Richett Lakewood, Colorado

          No appearance on behalf of Respondent.

          OPINION

          SAMOUR JUSTICE

         ¶1 The juvenile court found B.B.A.M. incompetent to proceed and ordered him to receive competency restoration services. Following the provision of those services, it ordered, over his objection, a second competency evaluation to determine whether he had been restored to competency. B.B.A.M. appealed, but the district court upheld the juvenile court's order. We subsequently granted B.B.A.M.'s petition for a rule to show cause pursuant to C.A.R. 21. And we now make the rule absolute.

         ¶2 After a juvenile court finds a juvenile incompetent to proceed and orders him to receive competency restoration services, section 19-2-1303(2), C.R.S. (2019), requires the court to "review the provision of and the juvenile's participation in the services and the juvenile's progress toward competency at least every ninety days until competency is restored" or every thirty days if the juvenile is in custody. Section 19-2-1304(1), C.R.S. (2019), in turn, authorizes the court to "order a restoration to competency hearing . . . at any time on its own motion, on motion of the prosecuting attorney, or on motion of the juvenile." Under section 19-2-1305(1), C.R.S. (2019), the court may find that the juvenile has been restored to competency either "during a review" pursuant to section 19-2-1303(2) or after holding a "restoration to competency hearing" ("restoration hearing") pursuant to section 19-2-1304(1).

         ¶3 Because the relevant statutes do not permit a juvenile court to order a second competency evaluation to determine whether a juvenile has been restored to competency, the district court erred in affirming the juvenile court's order. There was no basis to compel B.B.A.M. to undergo a second competency evaluation in lieu of holding a restoration review pursuant to section 19-2-1303(2) or a restoration hearing pursuant to section 19-2-1304(1). Accordingly, we reverse the district court's order and remand with instructions to return the case to the juvenile court for a restoration review or a restoration hearing.^[1]

         I. Facts and Procedural History

         ¶4 The People filed a petition in delinquency against B.B.A.M., charging him with one count of third degree burglary and three counts of criminal mischief. B.B.A.M.'s counsel filed a motion to determine competency pursuant to section 19-2-1301(3)(b), C.R.S. (2019). Because the court felt it lacked adequate information to make a preliminary finding regarding B.B.A.M.'s competency, it ordered the Colorado Department of Human Services ("DHS") to conduct an outpatient competency evaluation. See § 19-2-1302(1), C.R.S. (2019). After examining B.B.A.M., the competency evaluator filed a report in which she concluded he was incompetent to proceed, determined there was a likelihood of restoring him to competency, and recommended the restoration services she deemed appropriate. See § 19-2-1302(4)(c). Based on the competency evaluator's report, the court made a preliminary finding of incompetency. See § 19-2-1302(2). Since neither party requested a competency hearing within ten days, the court made the preliminary finding of incompetency a final determination. Thus, the court suspended the proceedings and ordered that B.B.A.M. receive outpatient services designed to restore him to competency.

         ¶5 The court referred B.B.A.M. to DHS's Office of Behavioral Health ("OBH") for restoration services. And, consistent with the requirement for periodic reviews, see § 19-2-1303(2), it ordered OBH to submit progress reports every ninety days. This is where things started to go south.

         ¶6 B.B.A.M. did not begin receiving restoration services until approximately four months later.^[2] Further, OBH informed B.B.A.M. that it intended to refer him for a second competency evaluation. B.B.A.M.'s counsel immediately filed a motion seeking the court's intervention. Over the People's objection, the court granted the requested relief and ruled that B.B.A.M. would not be required to undergo a second competency evaluation "as part of [the] competency progress reports" unless "ordered by the Court."

         ¶7 However, the order reflects that the court believed it had the discretion to order a second competency evaluation under section 19-2-1302(1), the statutory subsection that authorized the initial competency evaluation. See § 19-2-1302(1) (setting forth the procedure to be followed "[w]henever the question of a juvenile's competency to proceed is raised"). According to the court, it could compel an indefinite number of competency evaluations because section 19-2-1302(1) allows it to order such an evaluation whenever it lacks "adequate mental health information to determine competency." The court stopped short of ordering a second competency evaluation only because it anticipated that the required progress reports would allow it to determine whether adequate information "exist[ed] to hold a competency hearing and/or order [another] competency examination."

         ¶8 Finally, the order addressed some concerns expressed by OBH through the People's response. OBH had informed the People that, while its providers could submit progress reports outlining "which days the juvenile went to therapy and whether he is engaged" in restoration services, they could not opine "about whether the juvenile has been restored to competency" or render "an opinion as to competency." More specifically, OBH apparently took the position that its providers had a conflict of interest that prevented them from opining about B.B.A.M.'s progress toward being restored to competency because doing so was tantamount to opining about the effectiveness of the restoration services they were providing. OBH was seemingly troubled because it recognized that there was tension between its conflict-of-interest assertion and section 19-2-1303(2), which it interpreted as calling for a provider of restoration services to report to the court whether a juvenile had been restored to competency or was likely to be restored to competency. Indeed, these concerns appear to have motivated OBH's request to have B.B.A.M. undergo a second competency evaluation.

         ¶9 The court did not resolve OBH's conflict-of-interest claim because it disagreed with OBH's understanding of section 19-2-1303(2). It concluded that the required progress reports "do not necessitate an opinion from OBH about whether the juvenile has been restored to competency." And, reasoned the court, to the extent the progress reports are "not adequate . . . to make a finding of competence or incompetence, [it] shall order [another] competency examination."

         ¶10 Because OBH did not submit a progress report within ninety days, B.B.A.M. asked the court to order OBH to provide a status update. The court granted the request and ordered a progress report. OBH did not submit the progress report required by the court, apparently because it was under the mistaken impression that the court had ordered a new competency evaluation. Therefore, in mid-March 2019, the court ordered an "evidentiary hearing," which it scheduled to take place on May 1, 2019. The purpose of the hearing was to determine "if restoration remains viable" and whether restoration services "should continue." In connection with that setting, the court ordered the People to "subpoena [the] needed representatives" from OBH to appear at the hearing.

         ¶11 On April 4, 2019, approximately a month before the hearing, OBH filed a progress report that indicated B.B.A.M. was doing well in the competency restoration program. However, the report contained no opinions. At the May 1 hearing, OBH submitted two additional progress reports, both of which predated the April 4 report; one was dated February 27 and the other March 29. The February 27 report informed the court that B.B.A.M. was "progressing nicely." It specified that he was able to recall and describe "almost all the material" and that he could "describe with prompting" whatever he did not remember. It also mentioned that B.B.A.M. attended all his sessions on time, was always ready to learn, and was consistently "motivated to become competent and proceed with his case." The March 29 report contained similar information. But neither report set forth any opinions.

         ¶12 The People advised the court at the May 1 hearing that they had not subpoenaed anyone from OBH because OBH's program director had advised them that any providers called to testify could not offer opinions regarding B.B.A.M.'s competency or the likelihood of B.B.A.M. being restored to competency. According to OBH, its providers could only comment on what B.B.A.M. had done in the competency restoration program, including what modules he had completed, his engagement in the program, and his behavior while in attendance. In other words, OBH was standing by its conflict-of-interest position.

         ¶13 In light of OBH's stance, and given that more than a year had elapsed since the competency evaluation, the People orally requested a second court-ordered competency evaluation. The court granted the request over B.B.A.M.'s strenuous objection, finding "that when a juvenile's been deemed to be incompetent to proceed, it's in the juvenile's best interest to be restored." In so doing, the court generally agreed with all of the People's assertions: (1) the competency evaluation report was more than a year old; (2) a current competency evaluation was necessary; (3) OBH's providers had raised a conflict-of-interest concern; (4) the court needed to hear from the providers of the restoration services rendered to B.B.A.M.; and (5) the juvenile would suffer no prejudice by undergoing another competency evaluation.

         ¶14 B.B.A.M. sought judicial review of the juvenile court's order. But the district court sided with the juvenile court and held that section 19-2-1302(1) authorizes court-ordered "competency examinations" whenever the court "feels that the information available to it is inadequate for making a competency finding." The district court also relied on People in Interest of W.P., 2013 CO 11, ¶ 35, 295 P.3d 514, 526, where we stated that "[b]y its plain language, the juvenile determination statute accords the juvenile court discretion to decide when to order a competency evaluation."

         ¶15 Approximately three weeks later, B.B.A.M. filed a C.A.R. 21 petition invoking our original jurisdiction. ...