Section 15-11-656. (Effective January 1, 2014) Disposition of incompetent child; competency remediation

   (a) If the court finds that a child is incompetent to proceed but such child's incompetence may be remediated, if such child is alleged:

   (1) To be a child in need of services, the court shall either dismiss the petition without prejudice or order competency remediation services for such child; or

   (2) To have committed a delinquent act, the court may order competency remediation services for such child.

(b) In determining whether to order competency remediation services, the court shall consider:

   (1) Whether there is probable cause to believe the allegations in the petition are true;

   (2) The nature of the incompetency;

   (3) An incompetent child's age; and

   (4) The nature of the act alleged to have been committed by the incompetent child, in particular whether the act is a serious violent felony as such term is defined in Code Section 17-10-6.1.

(c) If a child is determined to be incompetent to proceed, the court has ordered that competency remediation services should be provided, and:

   (1) Such child is alleged to have committed an act that would be a felony if committed by an adult, the court may retain jurisdiction of such child for up to two years after the date of the order of incompetency, with review hearings at least every six months to redetermine competency or proceed as provided in subsection (f) of this Code section; or

   (2) A child is alleged to have committed an act that would be a misdemeanor if committed by an adult, the court may retain jurisdiction of a child for up to 120 days after the date of the order of incompetency or proceed as provided in subsection (f) of this Code section.

(d) All court orders determining incompetency shall include specific written findings by the court as to the nature of the incompetency and the mandated outpatient competency remediation services. If such child is in an out-of-home placement, the court shall specify the type of competency remediation services to be performed at such child's location. A child may be placed in a secure treatment facility or program, not to include DJJ facilities, if the court makes a finding by clear and convincing evidence that:

   (1) A child is mentally ill or developmentally disabled and meets the requirements for civil commitment pursuant to Chapters 3 and 4 of Title 37; and

   (2) All available less restrictive alternatives, including treatment in community residential facilities or community settings which would offer an opportunity for improvement of a child's condition, are inappropriate.

(e) A child who is incompetent to proceed shall not be subject to transfer to superior court, adjudication, disposition, or modification of disposition so long as the mental incompetency exists.

(f) If the court determines that an alleged delinquent child is incompetent to proceed, the court may dismiss the petition without prejudice.

(g) If a child is detained in a secure residential facility or nonsecure residential facility and the court determines that such child is incompetent to proceed, within five days of such determination the court shall issue an order to immediately release such child to the appropriate parent, guardian, or legal custodian.

Code 1981, § 15-11-656, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242.