In re the PEOPLE of the State of Colorado, Petitioner IN the INTEREST OF B.B.A.M., Juvenile and Concerning P.M., Respondent
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Original Proceeding Pursuant to C.A.R. 21,
Jefferson County District Court Case No. 17JD452, Honorable
Ann Gail Meinster, Judge
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 courts
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 juveniles
participation in the services and the juveniles 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 courts 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 courts order and remand with instructions to return
the case to the juvenile court for a restoration review or a
restoration hearing.[1]
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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 evaluators 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 DHSs 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 courts intervention. Over the Peoples
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 juveniles 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 Peoples 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
OBHs request to have B.B.A.M. undergo a second competency
evaluation.
[¶9]
The court did not resolve OBHs conflict-of-interest claim
because it disagreed with OBHs understanding of section
19-2-1303(2). It concluded that the required progress reports
"do not necessitate an opinion
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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 OBHs 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 OBHs 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 juveniles been deemed
to be incompetent to proceed, its in the juveniles best
interest to be restored." In so doing, the court
generally agreed with all of the Peoples assertions: (1) the
competency evaluation report was more than a year old; (2) a
current competency evaluation was necessary; (3) OBHs
providers had raised a conflict-of-interest concern; (4) the
court needed to ...