Changes Coming to Delinquency Procedure: Transfer and Mental Health Evaluations

Session Law 2023-114 includes many provisions that change the law governing delinquency cases. This is the first in a three-part series of blogs detailing those changes. It covers the changes to the laws that govern transfer of cases to superior court for trial as an adult and the mandate to assess mental health needs before disposition through the comprehensive clinical assessment (CCA) and care review processes. All of the S.L. 2023-114 changes described in this blog will apply to offenses committed on or after December 1, 2023.

Transfer Changes

Mandatory transfer of Class A felonies alleged to have been committed at ages 13, 14, or 15

Mandatory transfer of Class A felonies alleged to have been committed at ages 13, 14, or 15 is not new in North Carolina. Section 1 of Session Law 1979-815 enacted mandatory transfer of all capital felonies alleged to have been committed at ages 14 or 15 following a finding probable cause. Session Law 1991-842 changed the category of offenses subject to mandatory transfer from capital felonies to Class A felonies. This mandatory transfer structure was extended to cases in which Class A felonies were alleged to have been committed by juveniles at age 13 in Section 25 of Session Law 1994, Ex. Sess. – 22. This mandatory transfer structure requires the court to order transfer only after a finding of probable cause. Part I of S.L. 2023-114 adds the return of a true bill of indictment as a mechanism that triggers mandatory transfer in these cases. Under the new law, mandatory transfer is triggered in cases in which a Class A felony is alleged to have been committed at ages 13, 14, or 15 either (1) on a finding of probable cause or (2) on notice of the return of a true bill of indictment. These are the same mechanisms that trigger mandatory transfer in cases in which a Class A – G felony is alleged to have been committed at age 16 or 17. G.S. 7B-2200.5(a). It is noteworthy that that timeline for holding a probable cause hearing was not changed as part of the new law. G.S. 7B-2202(a) governs probable cause hearings in these cases and continues to require a probable cause hearing within 15 days of the juvenile’s first appearance. The probable cause hearing can be continued for good cause. Therefore, the indictment will need to be returned within 15 days of the first appearance unless the probable cause hearing is continued. Otherwise, a probable cause hearing will be required. Probable cause hearings in mandatory transfer cases for offenses committed at age 16 or 17 must be held within 90 days of the juvenile’s first appearance. G.S. 7B-2200.5(c). The legislature also aligned the secure custody hearing timeline in these cases with the secure custody hearing timeline for mandatory transfer cases in which the offense is alleged to have been committed at ages 16 or 17. This change was made in S.L. 2023-75 and applies to offenses committed on or after October 1, 2023. Once the change takes effect, ongoing hearings to determine the need for continued secure custody in cases in which a Class A felony is alleged to have been committed at ages 13, 14, or 15 will be required to be held every 30 days. The hearings can be required every ten days on request of the juvenile and for good cause. These ongoing secure custody hearings can also be waived with the juvenile’s consent.

Indictment procedure changes

Under current law, when an indictment is returned in a case that is subject to mandatory transfer for an offense alleged to have been committed at age 16 or 17, the court must transfer the case to superior court on (1) notice to the juvenile and (2) a finding by the court that a qualifying indictment has been returned. G.S. 7B-2200.5(a). Part I of S.L. 2023-114 (1) removes the requirement that the court make a finding that a qualifying indictment has been returned and (2) requires transfer to superior court after the juvenile is provided notice of the returned indictment as provided in G.S. 15A-630, the notice requirement for returned indictments in criminal cases. This standard for ordering transfer based on notice of the return of a true bill of indictment will apply to all offenses subject to mandatory transfer. This includes Class A – G felonies when committed at ages 16 or 17 and Class A felonies when committed at ages 13, 14, or 15. While the juvenile court will no longer need to make a finding that a qualifying indictment has been returned, there are two things that the juvenile court must do in order to transfer the case. First, the juvenile court must order transfer of the case. The only way that superior court can obtain jurisdiction in these matters is through transfer of the case from juvenile court to superior court. State v. Dellinger, 343 N.C. 93, 95 (1996). Under the new statutory structure, the juvenile court must transfer the case after the juvenile has received notice of the returned indictment. Therefore, the juvenile court must somehow confirm that the juvenile has received notice and then issue an order that transfers the case. The second thing that the juvenile court must do at transfer is determine conditions of pretrial release for the juvenile (who becomes a defendant in a criminal matter once transfer is ordered). G.S. 7B-2204(a). It is also a best practice for the court to inquire as to ongoing representation for the juvenile after transfer is ordered. You can read more about why ensuring continuous representation is so critical at the time of transfer in this blog. Given that the juvenile court must ensure that the juvenile received notice, issue a transfer order, and determine conditions of pretrial release, it seems that the removal of the need to make a finding that a qualifying indictment was returned does not also obviate the need for an appearance to order mandatory transfer.

Mental Health Assessment and Care Review Team Changes

Mandate for court to order a referral for a CCA

Part IV of S.L. 2023-114 also contains amendments to the law that governs court ordered assessments in delinquency cases. This is an area of law that has been rapidly evolving over the last few years. For context, you can access these blogs about caselaw that began in 2019 and resulted in statutory change in 2021. S.L. 2021-123. This evolution shifted the statutory mandate from the requirement that the court order the area authority to conduct a CCA prior to ordering disposition in any case where there was evidence of suspected mental illness or developmental disability to the current structure. Currently, the court is required to order DJJ to make a referral for a CCA when

1. the juvenile has a suspected mental illness, developmental disbaility, or intellectual disability, and
2. A CCA (or an equivalent assessment) has not been conducted within 45 days before the adjudication hearing. G.S. 7B-2502(a2).

The most significant change to the law under S.L. 2023-114 is that the second criteria regarding the timing of the CCA is changing. Under the new law, the mandate for the court to order DJJ to make a referral for a CCA will apply to cases in which there is no CCA within 90 days of the disposition hearing. Because the mandate to order a CCA applies any time the court is entering a disposition in a delinquency matter, including as a result of a violation of probation which may occur many months after adjudication, measuring the recency of the assessment against the date of the disposition hearing will ensure that timely assessments are available at all dispositions. The statutory changes also include clarifying language about when suspected mental illness should trigger the mandate for a new CCA. The current statute applies the mandate to “the case of a juvenile with a suspected mental illness.” G.S. 7B-2502(a2). The new statutory langauge clarifies that the mandate applies in cases in which a juvenile has been identified with a suspected mental illness through the use of a validated screening instrument or other evidence. DJJ utilizies the GAIN-SS, a validated screening instrument, during intake. Therefore, if the court receives evidence that the juvenile was identified on the GAIN-SS as having a suspected mental illness, the juvenile will meet the criteria under the statute. The juvenile can also meet the criteria if there is other evidence to show that the juvenile has been identified with a suspected mental illness. The existing criteria of suspected developmental disbaility or intellectual disablity will also continue to meet the statutory criteria.

Mandate for the court to consider whether a care review team must be ordered

Under the current statute, if the court orders DJJ to make a referral for a CCA, the court must review that CCA and consider whether the statutory criteria for ordering a care review team exist before the court can proceed to disposition. G.S. 7B-2502(a3). This lanague excludes cases in which there is a timely CCA because the court does not order a referral for a CCA in these cases. S.L. 2023-114 adds language to G.S. 7B-2502(a3) to require the court to review any CCA and consider whether criteria for ordering a care review team are met, whether the CCA was ordered by the court or whether is was within 90 days of disposition and therefore not ordered by the court. Under the amended statute, the court will be required to review all CCAs prior to disposition to determine if the criteria for ordering a care review team are met. As is the case under current law, the court must order a care review team if the criteria contained in G.S. 7B-2502(a3) are met.

Authority to hold a hearing to order treatment following a court-ordered evaluation

G.S. 7B-2502(a) gives the court broad authority, after adjudication, to order an examination of the juvenile by a physician, psychiatrist, psychologist, or other qualified expert as needed for the court to determine the needs of the juvenile. Prior to the restructuring of this statute in S.L. 2021-123, the statute also provided authority for the court to then hold a hearing on the examination results and to order compliance with evaluation or treatment. When the statute was reorganized, the link from the discretionary court-ordered exam to a hearing was lost. S.L. 2023-114 restores that link, adding langauge into G.S. 7B-2502(a) to allow the court to conduct a hearing after completion of an examination ordered at the court’s discretion. The court can order the juvenile to comply with any evaluation or treatment recommended by the examination as a result of that hearing.

More to Come

S.L. 2023-114 contains many more law changes that apply to delinquency cases. Stay tuned for blogs in October and November that will address changes to juvenile investigations, issuance and execution of initial orders for secure custody, and confidentiality. There is also a new, comprehensive juvenile capacity to proceed law that is part of S.L. 2023-114. It takes effect in January, 2025. I’ll be writing and teaching about that throughout 2024.