Beginning with offenses committed on or after January 1, 2025, new laws are in effect regarding the standard and procedures for addressing juvenile capacity to proceed. The new statutes can be found in G.S. 7B-2401-2401.5. You can find blogs about the details of the new standard and procedures here and here. This major revision to the law of juvenile capacity to proceed required new court forms and a new process for credentialing juvenile forensic evaluators. This post details those new structures.
New Juvenile Capacity Court Forms
The North Carolina Administrative Office of the Courts (NCAOC) released four new forms that can be used when a juvenile’s capacity to proceed is raised in a delinquency matter.
In any delinquency case other than cases subject to mandatory transfer through the return of an indictment the juvenile’s attorney, prosecutor, or court can raise the question of the juvenile’s capacity to proceed at any time through a motion. G.S. 7B-2401.2(a), G.S. 7B-2401(c). The motion must detail the specific conduct that leads the moving party to question the juvenile’s capacity. The AOC-J-260 is the new form for a motion to raise the question of a juvenile’s capacity.
The procedure for appointing a forensic evaluator in a delinquency matter changed significantly with the enactment of the new law. The court can now only appoint a forensic evaluator who is qualified by the North Carolina Department of Health and Human Services (DHHS) to conduct juvenile forensic evaluations (see the section below on finding a forensic evaluator for information on certain evaluators who are grandfathered in for one year). G.S. 7B-2401.2(b). The AOC-J-261 should be used to appoint that person.
The form can be used to 1) make an initial appointment of a qualified forensic evaluator, 2) appoint a qualified forensic evaluator when the juvenile is challenging the capacity determination in an initial evaluation, or 3) extend the time limit for submission of the forensic evaluation to the court. The form provides space to name the specific person who is being appointed. The form also includes several other details found in G.S. 7B-2401.3, including:
- What the evaluator must consider.
- What must be detailed in the report, including things that must be in a report when the evaluator’s opinion is that the juvenile is incapable of proceeding.
- That the evaluation must occur in the least restrictive environment considering the best interests of the juvenile and public safety.
- Details that govern transmission of the report to court.
- A timeline for completion of the evaluation and submission of the report to the court.
- The option to require the Division of Juvenile Justice (DJJ) to transport the juvenile or to require the juvenile to present themself for the evaluation.
- The release of confidential information about the juvenile to the evaluator.
The form also includes that the evaluator must get a reasonable fee, to be determined by the court in accordance with reimbursement guidelines maintained by the NCAOC. This reflects a new requirement for reimbursement of juvenile forensic evaluators contained in G.S. 7B-2401.3(h). The NCAOC has not yet released new forms to apply for or order these fees. However, it is anticipated that new forms similar to the existing expert reimbursement forms currently used by the State and Guardians ad Litem will be issued.
As was the case under the previous law, if the juvenile is charged with committing an offense that would be a felony if committed by an adult, the court can order the juvenile to a state facility for up to 60 days for observation and treatment to determine the juvenile’s capacity to proceed. G.S. 7B-2401.2(c). If the court orders the juvenile to a state facility without first having a local forensic evaluation, the court must find that an exam at a state facility is more appropriate.
The AOC-J-262 is the form to order the juvenile to a state facility for a forensic evaluation. The form includes information required under the new laws, including:
- The name and address of the facility.
- A requirement for DJJ to transport the juvenile, and to provide the juvenile’s charging documents and any local forensic evaluation to the facility.
- A requirement that the evaluation be conducted by an evaluator who possesses the minimum standards required to conduct juvenile forensic evaluations.
- What the evaluator must consider.
- What must be detailed in the report, including things that must be in a report when the evaluator’s opinion is that the juvenile is incapable of proceeding.
- That the evaluation must occur in the least restrictive environment necessary considering the best interests of the juvenile and public safety.
- That the report must be submitted to the court within 30 days after completing the evaluation.
- Details that govern transmission of the report to court.
- The release of confidential information about the juvenile to the facility.
The court is required to hold a hearing when the juvenile’s capacity to proceed is questioned. G.S. 7B-2401.2(h). The AOC-J-263 is the form to use at the conclusion of such a hearing. It has three components.
I. A section for findings. The findings can include that the parties stipulate that the juvenile is capable to proceed. This kind of stipulation is allowed under G.S. 7B-2401.2(h). The court should likely also include findings related to the juvenile’s capacity to proceed in this section of the form.
.If the parties do not stipulate that the juvenile is capable to proceed then a hearing must occur, and the court must make a determination regarding the juvenile’s capacity. The order must contain findings of fact to support the court’s determination. The findings section of the AOC-J-263 contains space for these findings.
II. A section for the capacity determination. This section of the form provides language for the court to find that the juvenile is or is not capable to proceed. To find that the juvenile lacks capacity to proceed, the juvenile must lack the ability to understand the nature and object of the proceedings, comprehend their own situation in reference to the proceedings, and/or assist in their defense in a rational or reasonable manner. G.S. 7B-2401(a). If the court finds that the juvenile lacks one or more of these abilities, the court should indicate which of the abilities are lacking by checking the relevant box(es) on the form.
If the juvenile is unable to do one or more of those things, the juvenile can only be found incapable of proceeding when the reason for the inability fits within one of the statutory bases of incapacity. The allowable reasons include mental disorder, intellectual disability, neurological disorder, traumatic or acquired brain injury, or developmental immaturity. G.S. 7B-2401(a). These reasons are preprinted in the findings section of the form and the form does not require that the court identify which reason(s) form the basis of the incapacity.
III. Order for remediation services. Under the new law, if the court finds that the juvenile is (i) not capable to proceed, and (ii) substantially likely to attain capacity in the foreseeable future, the court may order the juvenile to participate in remediation services. G.S. 7B-2401.4(b). The second page of the AOC-J-263 is an order for remediation services. The order contains the finding that the juvenile is incapable to proceed and substantially likely to attain capacity in the foreseeable future. Because the court has discretion to order remediation, the form allows the court to select whether or not the juvenile is in need of remediation.
This part of the form also includes space for findings regarding the least restrictive environment for remediations services. The new law contains eight factors that the court must consider in determining the least restrictive environment for remediation (G.S. 7B-2401.4(c)) and requires written findings of fact regarding the least restrictive environment for remediation services (G.S. 7B-2401.4(e)).
Finally, this part of the form contains the statutory timeframes for remediation based on the charges, a space to name the remediation provider, and language that requires a court report on remediation at least every 90 days.
The “Other” Section
There is an “other” section at the end of this form. Courts may want to consider including several details in this section to be clear about what is needed in remediation.
- Required remediation services. Remediation can include mental health treatment to reduce interfering symptoms and/or specialized psychoeducational programming. G.S. 7B-2401.1(6). The services are only for the purpose of facilitating the juvenile’s attainment of capacity to proceed. In addition, remediation services are to be based on the recommendations from the forensic evaluation. G.S. 7B-2401.4(b). The form includes that the services are to be based on the recommendation from the forensic evaluation but there is no other place on the form to specifically order whether remediation is to include mental health treatment, psychoeducation, or both. Indicating whether mental health, psychoeducation, or both services are needed might support clarity for the provision of services. In addition, the forensic evaluation may indicate that psychoeducation will not be effective until interfering mental health symptoms are addressed. In this circumstance, the court may want to include that mental health treatment should occur before psychoeducation begins.
- Name a second remediation provider. If the juvenile needs both mental health treatment and psychoeducation as part of remediation, they will have two remediation providers. The mental health provider will be a clinical person, and the psychoeducation provider will be the entity contracted by DJJ to provide psychoeducation. In this situation the court may want to name the second remediation provider in the “other” section and replicate the reporting requirement for that second provider.
- Identify the underlying reason for the lack of capacity. It may be useful for the court to name the underlying reason(s) identified in the forensic evaluation as the basis for the lack of capacity in the “other” section. Once remediation is ordered, the case will flow across several entities including potentially DJJ, a clinician, and the psychoeducation provider. A court order that clearly identifies the reason(s) for the incapacity could help maintain clarity across entities about the reason(s) for remediation services.
Finding Qualified Juvenile Forensic Evaluators
The new law required DHHS to establish a credentialing body and standards to qualify court-appointed juvenile forensic evaluators. G.S. 7B-2401.3(a). DHHS established those standards and is operating a credentialing process. The standards can be found here and include that the evaluator
- be a mental health professional who holds an active and valid license in North Carolina to practice within their field;
- has demonstrated experience conducting capacity to proceed evaluations (or “competency to stand trial” in other jurisdictions);
- has demonstrated experience using psychological tools and tests that are developmentally appropriate for juveniles; and
- has demonstrated knowledge in child and adolescent development, behavioral health needs, and appropriate methods for evaluating juveniles.
A list of DHHS certified juvenile evaluators can be accessed here. At the time of the writing of this blog there are 15 people on the list, and they come from Nash, Mecklenburg, Wake, Durham, Gaston, Alamance, Buncombe, and Pitt counties. Twelve of the qualified experts indicate that they are available to travel outside of their counties.
The statute also deems that qualified professionals who were conducting juvenile forensic evaluations before January 1, 2025, possess the minimum requirements to become an evaluator and gives them 12 months from the adoption of the DHHS standards to satisfy those standards. G.S. 7B-2401.3(b). Therefore, evaluators who were conducting juvenile forensic evaluations before 2025 can continue to be appointed by courts during 2025. Those evaluators will need to be on the DHHS list of certified juvenile forensic evaluators beginning in 2026.