By Kimberley K. Harris
Assistant Criminal District Attorney in Bexar County
It is no secret that many of the youths involved in the juvenile justice system are also facing mental health concerns. Indeed, multiple studies have confirmed that juvenile offenders are far more likely to be diagnosed with a mental health disorder than their similarly aged peers; it has been estimated that between 65 and 70 percent of youths in the juvenile justice system have at least one diagnosable mental health condition,[1] compared to slightly less than 20 percent of the general population of adolescents.[2] Additionally, a large majority of juvenile offenders have reported traumatic victimization and adverse childhood experiences such as child abuse, family violence, and serious illnesses.[3]
Given the rehabilitative focus of juvenile justice, these statistics can pose unique challenges for prosecutors working in this area of the law. Understanding the tools aimed at addressing the mental health needs of juvenile offenders will help prosecutors navigate this critical issue.
Focus on rehabilitation
It is not just the terminology of the juvenile system that differs from the adult criminal system (e.g., respondents instead of defendants and petitions instead of indictments); there are exclusive procedural requirements and unique restrictions placed on prosecutors working in this area.[4] One must understand the intended purpose of juvenile justice to successfully navigate this distinctive area of the law.
Although the criminal offenses alleged in the adult and juvenile systems are the same, the basis of Texas juvenile law is contained within Title 3 of the Family Code, not the Penal Code. The Juvenile Justice Code clearly states that its purpose is not just to provide for the protection of the public and public safety through promoting punishment for criminal acts, but also to “remove, where appropriate, the taint of criminality from children committing certain unlawful acts[;] to provide treatment, training, and rehabilitation that emphasizes accountability” for a child’s conduct, and “to provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within these parameters.”[5] While the central duty of all prosecutors is “to see that justice is done,”[6] those handling juvenile cases have additional rehabilitative goals that must be recognized.
Addressing a juvenile’s mental health issues
Chapter 55 is the part of the Juvenile Justice Code that specifically addresses proceedings for children with mental illness or intellectual disabilities, and this article goes into detail (below) regarding juvenile respondents who are found to lack responsibility, who are unfit to proceed, or who meet the requirements for court-ordered mental health services. But most juveniles with mental health problems do not fall into these categories, and juvenile prosecutors should be aware of options for aiding in these children’s rehabilitation.
There are many ways that a prosecutor might become cognizant of a juvenile offender’s mental health concerns. While defense attorneys and juvenile probation officers often raise these issues, observation of a respondent and his behavior during detention hearings and docket calls may also alert a prosecutor that mental health problems may be present. Mental health issues can also become apparent after a careful reading of the case file, particularly the offense report and the observations of police officers who were called to the scene.
One route is to ask for counseling to address a respondent’s mental health issues as a condition of probation or a deferred contract. Prosecutors should familiarize themselves with the services their local juvenile probation department has for youth in the juvenile system. Individual and family counseling, substance abuse counseling, anger management, and treatment with a licensed sex offender treatment provider may be options a prosecutor can request as a condition of probation. For some juvenile offenders, particularly those with low-level offenses, a prosecutor might choose to make counseling a condition of a deferred prosecution contract, enabling youth to get the mental health services they need while avoiding adjudication in the juvenile system.
Another option, if a county has them, is juvenile mental health specialty courts. Bexar County has two such courts for juvenile offenders, the MIND (Males In Need of Direction) Court and the Crossroads Girls Mental Health Court. Having specialty courts aimed at addressing mental health issues is enormously helpful, as it allows juvenile offenders to get the mental health services they need.[7] Specialty courts redirect the focus of the juvenile system to address the root cause behind a youth’s behavior while also redirecting and educating the child.[8] These specialty courts offer an alternative route to rehabilitation by prioritizing mental health treatment and diverting youth from the juvenile justice system and detention. Juvenile mental health courts are designed to provide a more individualized approach, connecting youth with mental health services under the supervision of a judge and prosecutor.[9] In a specialty court, a prosecutor represents the State’s interests and holds the youth responsible for complying with the specialty docket’s requirements. Prosecutors can recommend that a child be accepted into a specialty court, be promoted, graduate, or be terminated from the program and sent back to the standard juvenile justice system. Juvenile mental health courts provide another option for rehabilitating youth, with the understanding that a one-size-fits-all approach to justice is not appropriate for every respondent.
Although mental health specialty courts can be useful, they do not exist in every jurisdiction. In smaller counties without such a specialty court, prosecutors should rely on the services offered by the local juvenile probation department and make participation in those services a condition of probation or a deferred contract. If warranted, prosecutors may also choose to non-suit some cases on the condition that a juvenile participate in mental health counseling.
Chapter 55 proceedings
For those juvenile offenders who face more severe mental health concerns, Chapter 55 of the Family Code provides a path for prosecutors. It explicitly deals with respondents in the juvenile justice system who have a mental illness, with the basic philosophy that children who are in the juvenile system should first be handled by the mental health system if they meet the criteria for treatment, as both society and the juveniles themselves will benefit from their swift treatment.[10] Mental illness is defined to have the same meaning as that in the Health and Safety Code: “an illness, disease, or condition, other than epilepsy, dementia, substance abuse, or intellectual disability, that substantially impairs a person’s thought, perceptions of reality, emotional process, or judgment, or grossly impairs behavior as demonstrated by recent disturbed behavior.”[11]
There are three types of proceedings under Chapter 55:
• proceedings for court-ordered mental health treatment,
• fitness to proceed cases, and
• lack of responsibility for conduct proceedings.
Court-ordered mental health treatment. Either the prosecutor or the defense attorney can file an application for court-ordered mental health services.[12] The initial step is determining whether probable cause exists to believe that a respondent has a mental illness. The juvenile court may consider a variety of evidence, including the motion itself, supporting documents, statements of counsel, witness testimony, and its own observation of the child.[13] Mental health concerns are frequently raised by defense counsel, but they may also be raised by the child’s parents or even the child himself.
If the court determines that probable cause exists, juvenile proceedings are temporarily stayed and a forensic mental examination is ordered.[14] In a proceeding for court-ordered treatment, this examination includes expert opinion as to whether the respondent has a mental illness and whether s/he meets the criteria for court-ordered services as laid out in §55.05.[15] After receiving this information, the court may initiate a hearing for court-ordered mental health services, considering both the least-restrictive setting appropriate for treatment and the parent or guardian’s willingness and ability to participate in the child’s treatment.[16] Mental health services can be ordered if the court finds by clear and convincing evidence that the respondent has a mental illness and meets the requirements for court-ordered treatment.[17]
Temporary (i.e., less than 90 days) outpatient services can be ordered if the court finds that the child will experience substantial deterioration in his or her ability to function independently without the court-ordered services, that services are necessary to prevent a relapse that would likely result in serious harm to the child or others, and that the child has an inability to effectively and voluntarily participate in treatment.[18]
The requirements for temporary inpatient mental health services are more stringent: The court must find that the child is likely to cause serious harm to himself or others or is suffering from severe distress, is experiencing substantial deterioration in his ability to function independently, and is unable to make a rational and informed decision about mental health treatment.[19]
Extended inpatient and outpatient treatment lasting longer than 90 days has additional requirements: The condition must be expected to last for 90 days or longer and the child must have previously received court-ordered treatment.[20] On the other hand, if the court does not find that a respondent meets the requirements for court-ordered treatment, the temporary stay can be dissolved, and normal juvenile proceedings will continue.[21]
Fitness to proceed cases. Chapter 55 also deals with juveniles who may be unfit to proceed in court because of mental illness or intellectual disability. A respondent is unfit to proceed if s/he lacks the “capacity to understand the juvenile proceedings or to assist in [his or her] own defense” because of mental illness or intellectual disability.[22] Similar to incompetency in adult criminal cases, it is a due process violation to put such a person on trial in criminal or criminal-type proceedings.[23] A respondent who is found unfit cannot be subject to adjudication, disposition, modification of disposition, or transfer to adult criminal court until the incapacity is removed. Similar to proceedings for court-ordered treatment, either party can move to have a fitness evaluation.[24] If the court determines that there is probable cause to believe that the respondent is unfit, juvenile proceedings are stayed and a fitness examination by an expert is ordered.[25]
A fitness examination requires that the expert consider whether the respondent has a mental illness or intellectual disability, the child’s capacity to understand the allegations against him, the range and nature of dispositions that may be imposed, the roles of the participants and the adversarial nature of the legal process, as well as the respondent’s ability to display appropriate behavior in the courtroom, testify relevantly, and the capacity to rationally and reasonably engage with counsel.[26] An expert’s report must also contain information about whether a respondent is likely to be restored to fitness.[27]
If, after receiving the fitness to proceed report, a court determines that fitness is not an issue, the temporary stay is dissolved, and normal juvenile proceedings may continue.[28] However, if the court determines that there is evidence a child is unfit to proceed, a fitness to proceed hearing will be held unless the prosecutor decides to nonsuit the case.
Unfitness to proceed must be proven by a preponderance of the evidence in a hearing separate from any other hearing.[29] The party alleging unfitness, typically the defense, bears this burden of proof. If a respondent is found fit, normal juvenile proceedings continue.[30]
However, if a child is found unfit to proceed, a 90-day evaluative period is required during which the respondent is placed in a private psychiatric facility, an outpatient treatment center, or a local mental health authority or center.[31] During this 90-day period, a respondent in an outpatient setting can receive restoration classes from the juvenile probation department to assist in restoring the child’s fitness to proceed, including assisting his or her capacity to understand court proceedings and ability to assist in his or her own defense.[32] After 75 days, the facility is required to issue a report to the juvenile court stating its opinion as to whether the child is now fit to proceed.[33] If the report says the child is now fit, the court must find the child fit, dissolve the stay, and continue normal juvenile proceedings unless the child’s attorney objects.[34] If there is an objection, another fitness to proceed hearing is held, and the court will continue either with normal juvenile proceedings if the child is found fit or commitment proceedings if s/he is found unfit.
Lack of responsibility for conduct cases. Unlike proceedings for court-ordered mental health services and fitness to proceed questions, the affirmative defense of lack of responsibility is a trial issue to be decided during adjudication by either the jury or the court.[35] Although lack of responsibility is rarely raised and even more rarely successful, prosecutors working in juvenile courts should be aware of this potential defense. A child is not responsible for allegedly delinquent conduct if, at the time of the conduct, s/he “lacked substantial capacity either to appreciate the wrongfulness of [the] conduct or to conform [his or her] conduct to the requirements of law” as a result of either mental illness or an intellectual disability.[36] This definition is more expansive than the adult insanity defense, which includes only defendants who “as a result of severe mental disease or defect, did not know that [their] conduct was wrong” at the time of the offense.[37] Either the defense or the prosecution may move for a forensic examination to assist in determining whether a respondent lacks responsibility for his conduct, and the juvenile court is required to grant that motion.[38] The burden of proof is on the party claiming lack of responsibility, and it must be proven by a preponderance of the evidence.[39]
Once the issue of lack of responsibility is raised and evidence is produced, the court or the jury is required to state in its finding or verdict whether or not it found the child responsible for the conduct.[40] Similar to the insanity defense in adult proceedings, if a respondent is found to be not responsible for the alleged conduct due to a mental illness or intellectual disability, s/he is acquitted of those charges.[41]
Just as in fitness to proceed cases, if a child is found to lack responsibility, a 90-day evaluative period is required, during which the respondent will be placed in either a private psychiatric facility, an outpatient treatment center, or a local mental health authority or center, and evaluated to determine whether s/he is committable.[42] The facility is required to report back within 75 days as to whether the child has a mental illness or intellectual disability.[43] If the report concludes that the child has a mental illness or intellectual disability, a commitment hearing will be held.[44]
If, however, the report concludes that the respondent does not have a mental illness or intellectual disability, the court must discharge the child from all proceedings for which s/he was found to lack responsibility.[45] There is a narrow exception for determinate sentence cases where the prosecutor objects to the report, in which case a special commitment hearing will be held during which the State must prove its case by clear and convincing evidence for treatment services to be ordered. Although rare, prosecutors should be aware of this option.
Conclusion
Mental health concerns continue to be a persistent problem for those involved in juvenile justice. Prosecutors who understand the tools aimed at addressing these issues, both in Chapter 55 and beyond, will be better able to serve the dual goals of the juvenile system: protecting the community and public safety while rehabilitating young offenders.
Endnotes
[1] Jennie L. Shufelt & Joseph J. Cocozza, Youth with Mental Health Disorders in the Juvenile Justice System: Results from a Multi-State Prevalence Study, Research and Program Brief, Nat’l Ctr. for Mental Health and Juv. Just. (2006), www.njjn.org/uploads/digital-library/Youth-with-Mental-Health-Disorders-in-the-JJ- System_Shufelt-and-Cocozza-NCMHJJ-6.2006.pdf.
[2] Mental Health by the Numbers, Nat’l All. On Mental Illness (Apr. 2023), www.nami.org/mhstats.
[3] See. e.g. Michael T. Baglivio et. al, The Prevalence of Adverse Childhood Experiences (ACE) in the Lives of Juvenile Offenders, OJJDP J. of Juv. Just., Spring 2014, at 1, www.ojp.gov/pdffiles/246951.pdf.
[4] Sarah Bruchmiler & Hans Nielsen, “The Basics of Juvenile Law,” The Texas Prosecutor, January–February 2017, at 27, www.tdcaa.com/journal/the-basics-of-juvenile-law.
[5] Tex. Fam. Code §51.01.
[6] Tex. Code Crim. Proc. Art. 2.01.
[7] A statewide list of mental health court programs is available at www.texasjcmh.gov/technical-assistance/mental-health-courts.
[8] Sarah Bruchmiler & Hans Nielsen, “Specialty Courts for Juvenile Offenders,” The Texas Prosecutor, May–June 2018, at 20, www.tdcaa.com/journal/specialty-courts-for-juvenile-offenders.
[9] Patrick Gardner, An Overview of Juvenile Mental Health Courts, 30 ABA Child Law Prac. 97 (Sept. 2011), www.americanbar.org/content/dam/aba/administrative/child_law/clp/vol30/sept11.pdf.
[10] Robert Dawson, Texas Juvenile Law 333 (9th ed. 2018).
[11] Tex. Fam. Code §55.01; Tex. Health & Safety Code §571.003.
[12] Tex. Fam. Code §55.65.
[13] Id. §55.11.
[14] Id. §55.04.
[15] Id. §55.11(b).
[16] Id. §55.11(c).
[17] Id. §§55.05 and 55.65.
[18] Id. §55.05(b).
[19] Id. §55.05(a).
[20] Id. §55.05(c)-(d).
[21] Id. §55.11.
[22] Id. §55.31(a).
[23] Dusky v. United States, 362 U.S. 402 (1960).
[24] Id. §55.31(b). A juvenile court may, in its discretion, determine whether probable cause exists that a child is unfit sua sponte but is not required to do so. See In re J.K.N., 115 S.W.3d 166, 168-69 (Tex. App.—Fort Worth 2003, no pet.).
[25] Tex. Fam. Code §55.31(c).
[26] Id. §55.31(d).
[27] Id. §55.31(e).
[28] Id. §55.31(f).
[29] Id. §55.32.
[30] Id. §55.32(e).
[31] Id. §55.33.
[32] Id. §§55.33 and 55.01.
[33] Id. §55.35.
[34] Id. §55.36.
[35] Id. §55.51(c).
[36] Id. §55.51(a).
[37] Tex. Penal Code § 8.01. The insanity defense in adult criminal cases is further limited by specifically excluding abnormalities that manifest “only as repeated criminal or otherwise antisocial conduct.” Id. The juvenile definition for lack of responsibility contains no such limitations. See W.D.A. v. State, 835 S.W.2d 227 (Tex. App.—Waco 1992, no writ).
[38] Tex. Fam Code §55.51(b).
[39] Id. §55.51(d). See also J.W. v. State, No. 01-11-01067-CV (Tex. App.—Houston [1st Dist.] 2012, no pet.) stating, “The burden is on the juvenile to prove by a preponderance of the evidence that, at the time of the incident, he lacked the capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law.”
[40] Tex. Fam Code §55.51(e).
[41] Id. §55.51(g).
[42] Id. §55.52.
[43] Id. §55.54(b).
[44] Id. §55.56.
[45] Id. §55.55.