By Julie Whitman, Executive Director | Commission on Improving the Status of Children in Indiana
Is this juvenile competent to engage in the delinquency process?
An adult with a serious mental illness or an intellectual disability, who has been accused of a crime, may be found incompetent to stand trial and may receive services to attain competency. But when it comes to juveniles and the delinquency court, Indiana has not had a clear process for determining a child’s competency to understand the proceedings against them and assist in their own defense, nor provisions for getting appropriate services for that child—until now.
Indiana judges and attorneys who hear and argue delinquency cases, as well as the Department of Child Services, the Division of Mental Health and Addiction, and child psychiatrists and psychologists will want to make themselves familiar with the new competency provisions contained in Ind. Code chapter 31-37-26. Taking effect on December 31, 2022, Indiana will have a statutory set of requirements and timelines related to evaluating and determining a juvenile’s competency, providing services to attain competency, and importantly, a course of action if it is determined that competency cannot be attained by the juvenile.
Why was this law needed?
The decision In re K.G., 808 N.E.2d 631 (Ind. 2004), determined that the provisions of Indiana law dealing with an adult’s competency to stand trial did not apply to juveniles. The opinion pointed to a section of juvenile code that authorized the court to order examinations and treatment of an alleged delinquent child.
However, this still left gaps and unmet needs in the process, according to Joel Wieneke of the Indiana Public Defender Council. Because the juvenile code did not specifically address the question of competency, it was never clear who should evaluate competency and whether and how a child could attain it.
Moreover, Ind. Code § 31-32-12-2 imposed a 14-day time limit on confinement for treatment and examinations, which courts and practitioners found to be insufficient to determine competency and, if absent, to attain it. As a result, judges reported holding delinquency proceedings for children with serious mental health conditions in need of intensive treatment but having few resources or options at their disposal to try to ensure the safety of the community and the well-being of the child.
All hands on deck
Legislation often begins with a single advocate or interest group bringing an idea to a legislator. However, the issue of juvenile competency is bigger than any single group and touches many. Beginning in 2018, and picking up steam in late 2020, the Children’s Law and Policy Initiative convened a series of multi-disciplinary meetings to examine the issue and propose solutions. According to JauNae Hanger, CLPI’s President:
To craft a strong statutory framework for juvenile competency, we knew it would be important to have all the stakeholders at the table. That’s why we convened a series of meetings involving juvenile judges, prosecutors, defense attorneys, mental health professionals, advocates, and others. We needed all of those voices to hammer out a solution that was going to be workable in the courtroom and keep both the best interests of children and the protection of the community at the forefront.
As juvenile competency legislation was working its way through the Indiana General Assembly, additional changes were made. One of these delayed the effective date, which allows the Indiana Department of Child Services to develop the necessary processes and providers for competency attainment services, something not in the agency’s current service standards.
As with all legislation, the ultimate impact of SEA 368-2021 will be seen through its real-world implementation, and more amendments may be made in the coming years. But mark 2021 as the year that Indiana put juvenile competency “on the books,” and all parties to delinquency proceedings into the process of crafting a policy to better serve Hoosier children and communities.
Questions? Contact the author at