                                 CODE OF VIRGINIA

RAISING QUESTION OF COMPETENCY TO STAND TRIAL; EVALUATION AND DETERMINATION OF
COMPETENCY (§ 16.1-356)

A. If, at any time after the attorney for the juvenile has been retained or
appointed pursuant to a delinquency proceeding and before the end of trial, the
court finds, sua sponte or upon hearing evidence or representations of counsel
for the juvenile or the attorney for the Commonwealth, that there is probable
cause to believe that the juvenile lacks substantial capacity to understand the
proceedings against him or to assist his attorney in his own defense, the court
shall order that a competency evaluation be performed by at least one
psychiatrist, clinical psychologist, licensed professional counselor, licensed
clinical social worker, or licensed marriage and family therapist, who is
qualified by training and experience in the forensic evaluation of juveniles.
			The Commissioner of Behavioral Health and Developmental Services shall
approve the training and qualifications for individuals authorized to conduct
juvenile competency evaluations and provide restoration services to juveniles
pursuant to this article. The Commissioner shall also provide all juvenile
courts with a list of guidelines for the court to use in the determination of
qualifying individuals as experts in matters relating to juvenile competency and
restoration.

B. The evaluation shall be performed on an outpatient basis at a community
services board or behavioral health authority, juvenile detention home, or
juvenile justice facility unless the court specifically finds that (i) the
results of the outpatient competency evaluation indicate that hospitalization of
the juvenile for evaluation of competency is necessary or (ii) the juvenile is
currently hospitalized in a psychiatric hospital. If one of these findings is
made, the court, under authority of this subsection, may order the juvenile sent
to a hospital designated by the Commissioner of Behavioral Health and
Developmental Services as appropriate for the evaluation of juveniles against
whom a delinquency petition has been filed.

C. The court shall require the attorney for the Commonwealth to provide to the
evaluators appointed under subsection A any information relevant to the
evaluation, including, but not limited to (i) a copy of the warrant or petition;
(ii) the names and addresses of the attorney for the Commonwealth, the attorney
for the juvenile, and the judge ordering the evaluation; and (iii) information
about the alleged offense. The court shall require the attorney for the juvenile
to provide to the evaluator only the psychiatric records and other information
that is deemed relevant to the evaluation of competency. The moving party shall
provide the evaluator a summary of the reasons for the evaluation request. All
information required by this subsection shall be provided to the evaluator
within 96 hours of the issuance of the court order requiring the evaluation and
when applicable, shall be submitted prior to admission to the facility providing
the inpatient evaluation. If the 96-hour period expires on a Saturday, Sunday,
or other legal holiday, the 96 hours shall be extended to the next day which is
not a Saturday, Sunday, or legal holiday. The appointed evaluator or the
director of the community services board, behavioral health authority, or
hospital shall acknowledge receipt of the court order to the clerk of the court
on a form developed by the Office of the Executive Secretary of the Supreme
Court of Virginia as soon as practicable but no later than the close of business
on the next business day following receipt of the court order. If the appointed
evaluator or the director of the community services board, behavioral health
authority, hospital, or private evaluator is unable to conduct the evaluation,
he shall inform the court on the acknowledgement form.

D. If the juvenile is hospitalized under the provisions of subsection B, the
juvenile shall be hospitalized for such time as the director of the hospital
deems necessary to perform an adequate evaluation of the juvenile&#8217;s
competency, but not to exceed 10 days from the date of admission to the
hospital. All evaluations shall be completed and the report filed with the court
within 14 days of receipt by the evaluator of all information required under
subsection C.

E. Upon completion of the evaluation, the evaluator shall promptly and in no
event exceeding 14 days after receipt of all required information submit the
report in writing to the court and the attorneys of record concerning (i) the
juvenile&#8217;s capacity to understand the proceedings against him; (ii) his
ability to assist his attorney; and (iii) his need for services in the event he
is found incompetent, including a description of the suggested necessary
services and least restrictive setting to assist the juvenile in restoration to
competency. No statements of the juvenile relating to the alleged offense shall
be included in the report.

F. After receiving the report described in subsection E, the court shall
promptly determine whether the juvenile is competent to stand trial for
adjudication or disposition. A hearing on the juvenile&#8217;s competency is not
required unless one is requested by the attorney for the Commonwealth or the
attorney for the juvenile or when required under &#xA7; 16.1-357 B. If a hearing
is held, the party alleging that the juvenile is incompetent shall bear the
burden of proving by a preponderance of the evidence the juvenile&#8217;s
incompetency. The juvenile shall have the right to notice of the hearing and the
right to personally participate in and introduce evidence at the hearing.
			If the juvenile is otherwise able to understand the charges against him and
assist in his defense, a finding of incompetency shall not be made based solely
on any or all of the following: (i) the juvenile&#8217;s age or developmental
factors, (ii) the juvenile&#8217;s claim to be unable to remember the time
period surrounding the alleged offense, or (iii) the fact that the juvenile is
under the influence of medication.

HISTORY: 1999, cc. 958, 997; 2000, c. 337; 2005, c. 110; 2009, cc. 813, 840;
2021, Sp. Sess. I, c. 311.