In Re People v. B.B.A.M

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ADVANCE SHEET HEADNOTE
December 9, 2019
2019 CO 103
No. 19SA151, In Re People v. B.B.A.M.—Juveniles—Competency to Stand
Trial—Assessing Restoration to Competency.
The supreme court considers whether the juvenile court may order a second
competency evaluation in lieu of holding a restoration review pursuant to section
19-2-1303(2), C.R.S. (2019), or a restoration hearing pursuant to section
19-2-1304(1), C.R.S. (2019). The court concludes that the juvenile court may not do
so. Under section 19-2-1305(1), C.R.S. (2019), the court may find that the juvenile
has been restored to competency either during a restoration review or after
holding a restoration hearing.
Because the relevant statutes do not permit a juvenile court to order a second
competency evaluation to determine whether a juvenile has been restored to
competency, the court rules that the district court erred in affirming the juvenile
court’s order. Accordingly, the court reverses the district court’s order and
remands with instructions to return the case to the juvenile court for a restoration
review or a restoration hearing.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2019 CO 103
Supreme Court Case No. 19SA151
Original Proceeding Pursuant to C.A.R. 21
Jefferson County District Court Case No. 17JD452
Honorable Ann Gail Meinster, Judge
________________________________________________________________________
In Re
Petitioner:
The People of the State of Colorado,
In the Interest of
Juvenile:
B.B.A.M.,
and Concerning
Respondent:
P.M.
________________________________________________________________________
Rule Made Absolute
en banc
December 9, 2019
________________________________________________________________________
Attorneys for Petitioner:
Peter A. Weir, District Attorney, First Judicial District
Colleen R. Wort, Appellate Deputy District Attorney
Golden, Colorado
Attorney for Juvenile:
Diana M. Richett
Lakewood, Colorado
No appearance on behalf of Respondent.
JUSTICE SAMOUR delivered the Opinion of the Court.
JUSTICE BOATRIGHT dissents, and JUSTICE HART joins in the dissent.
2
¶1 The juvenile court found B.B.A.M. incompetent to proceed and ordered him
to receive competency restoration services. Following the provision of those
services, it ordered, over his objection, a second competency evaluation to
determine whether he had been restored to competency. B.B.A.M. appealed, but
the district court upheld the juvenile court’s order. We subsequently granted
B.B.A.M.’s petition for a rule to show cause pursuant to C.A.R. 21. And we now
make the rule absolute.
¶2 After a juvenile court finds a juvenile incompetent to proceed and orders
him to receive competency restoration services, section 19-2-1303(2), C.R.S. (2019),
requires the court to “review the provision of and the juvenile’s participation in
the services and the juvenile’s progress toward competency at least every ninety
days until competency is restored” or every thirty days if the juvenile is in custody.
Section 19-2-1304(1), C.R.S. (2019), in turn, authorizes the court to “order a
restoration to competency hearing . . . at any time on its own motion, on motion of
the prosecuting attorney, or on motion of the juvenile.” Under section
19-2-1305(1), C.R.S. (2019), the court may find that the juvenile has been restored
to competency either “during a review” pursuant to section 19-2-1303(2) or after
holding a “restoration to competency hearing” (“restoration hearing”) pursuant to
section 19-2-1304(1).
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¶3 Because the relevant statutes do not permit a juvenile court to order a second
competency evaluation to determine whether a juvenile has been restored to
competency, the district court erred in affirming the juvenile court’s order. There
was no basis to compel B.B.A.M. to undergo a second competency evaluation in
lieu of holding a restoration review pursuant to section 19-2-1303(2) or a
restoration hearing pursuant to section 19-2-1304(1). Accordingly, we reverse the
district court’s order and remand with instructions to return the case to the
juvenile court for a restoration review or a restoration hearing. 1
I. Facts and Procedural History
¶4 The People filed a petition in delinquency against B.B.A.M., charging him
with one count of third degree burglary and three counts of criminal mischief.
B.B.A.M.’s counsel filed a motion to determine competency pursuant to section
19-2-1301(3)(b), C.R.S. (2019). Because the court felt it lacked adequate information
to make a preliminary finding regarding B.B.A.M.’s competency, it ordered the
Colorado Department of Human Services (“DHS”) to conduct an outpatient
competency evaluation. See § 19-2-1302(1), C.R.S. (2019). After examining
B.B.A.M., the competency evaluator filed a report in which she concluded he was
1Given this disposition, we do not address B.B.A.M.’s assertion that compelling
him to submit to a second court-ordered competency evaluation would violate his
Fifth Amendment privilege against self-incrimination.
4
incompetent to proceed, determined there was a likelihood of restoring him to
competency, and recommended the restoration services she deemed appropriate.
See § 19-2-1302(4)(c). Based on the competency evaluator’s report, the court made
a preliminary finding of incompetency. See § 19-2-1302(2). Since neither party
requested a competency hearing within ten days, the court made the preliminary
finding of incompetency a final determination. Thus, the court suspended the
proceedings and ordered that B.B.A.M. receive outpatient services designed to
restore him to competency.
¶5 The court referred B.B.A.M. to DHS’s Office of Behavioral Health (“OBH”)
for restoration services. And, consistent with the requirement for periodic
reviews, see § 19-2-1303(2), it ordered OBH to submit progress reports every ninety
days. This is where things started to go south.
¶6 B.B.A.M. did not begin receiving restoration services until approximately
four months later.2 Further, OBH informed B.B.A.M. that it intended to refer him
for a second competency evaluation. B.B.A.M.’s counsel immediately filed a
motion seeking the court’s intervention. Over the People’s objection, the court
granted the requested relief and ruled that B.B.A.M. would not be required to
2 The record indicates that the delay may have been caused by new legislation
designating OBH as the entity responsible for the coordination of restoration
services throughout the state.
5
undergo a second competency evaluation “as part of [the] competency progress
reports” unless “ordered by the Court.”
¶7 However, the order reflects that the court believed it had the discretion to
order a second competency evaluation under section 19-2-1302(1), the statutory
subsection that authorized the initial competency evaluation. See § 19-2-1302(1)
(setting forth the procedure to be followed “[w]henever the question of a juvenile’s
competency to proceed is raised”). According to the court, it could compel an
indefinite number of competency evaluations because section 19-2-1302(1) allows
it to order such an evaluation whenever it lacks “adequate mental health
information to determine competency.” The court stopped short of ordering a
second competency evaluation only because it anticipated that the required
progress reports would allow it to determine whether adequate information
“exist[ed] to hold a competency hearing and/or order [another] competency
examination.”
¶8 Finally, the order addressed some concerns expressed by OBH through the
People’s response. OBH had informed the People that, while its providers could
submit progress reports outlining “which days the juvenile went to therapy and
whether he is engaged” in restoration services, they could not opine “about
whether the juvenile has been restored to competency” or render “an opinion as
to competency.” More specifically, OBH apparently took the position that its
6
providers had a conflict of interest that prevented them from opining about
B.B.A.M.’s progress toward being restored to competency because doing so was
tantamount to opining about the effectiveness of the restoration services they were
providing. OBH was seemingly troubled because it recognized that there was
tension between its conflict-of-interest assertion and section 19-2-1303(2), which it
interpreted as calling for a provider of restoration services to report to the court
whether a juvenile had been restored to competency or was likely to be restored
to competency. Indeed, these concerns appear to have motivated OBH’s request
to have B.B.A.M. undergo a second competency evaluation.
¶9 The court did not resolve OBH’s conflict-of-interest claim because it
disagreed with OBH’s understanding of section 19-2-1303(2). It concluded that the
required progress reports “do not necessitate an opinion from OBH about whether
the juvenile has been restored to competency.” And, reasoned the court, to the
extent the progress reports are “not adequate . . . to make a finding of competence
or incompetence, [it] shall order [another] competency examination.”
¶10 Because OBH did not submit a progress report within ninety days, B.B.A.M.
asked the court to order OBH to provide a status update. The court granted the
request and ordered a progress report. OBH did not submit the progress report
required by the court, apparently because it was under the mistaken impression
that the court had ordered a new competency evaluation. Therefore, in mid-March
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2019, the court ordered an “evidentiary hearing,” which it scheduled to take place
on May 1, 2019. The purpose of the hearing was to determine “if restoration
remains viable” and whether restoration services “should continue.” In
connection with that setting, the court ordered the People to “subpoena [the]
needed representatives” from OBH to appear at the hearing.
¶11 On April 4, 2019, approximately a month before the hearing, OBH filed a
progress report that indicated B.B.A.M. was doing well in the competency
restoration program. However, the report contained no opinions. At the May 1
hearing, OBH submitted two additional progress reports, both of which predated
the April 4 report; one was dated February 27 and the other March 29. The
February 27 report informed the court that B.B.A.M. was “progressing nicely.” It
specified that he was able to recall and describe “almost all the material” and that
he could “describe with prompting” whatever he did not remember. It also
mentioned that B.B.A.M. attended all his sessions on time, was always ready to
learn, and was consistently “motivated to become competent and proceed with his
case.” The March 29 report contained similar information. But neither report set
forth any opinions.
¶12 The People advised the court at the May 1 hearing that they had not
subpoenaed anyone from OBH because OBH’s program director had advised
them that any providers called to testify could not offer opinions regarding
8
B.B.A.M.’s competency or the likelihood of B.B.A.M. being restored to
competency. According to OBH, its providers could only comment on what
B.B.A.M. had done in the competency restoration program, including what
modules he had completed, his engagement in the program, and his behavior
while in attendance. In other words, OBH was standing by its conflict-of-interest
position.
¶13 In light of OBH’s stance, and given that more than a year had elapsed since
the competency evaluation, the People orally requested a second court-ordered
competency evaluation. The court granted the request over B.B.A.M.’s strenuous
objection, finding “that when a juvenile’s been deemed to be incompetent to
proceed, it’s in the juvenile’s best interest to be restored.” In so doing, the court
generally agreed with all of the People’s assertions: (1) the competency evaluation
report was more than a year old; (2) a current competency evaluation was
necessary; (3) OBH’s providers had raised a conflict-of-interest concern; (4) the
court needed to hear from the providers of the restoration services rendered to
B.B.A.M.; and (5) the juvenile would suffer no prejudice by undergoing another
competency evaluation.
¶14 B.B.A.M. sought judicial review of the juvenile court’s order. But the district
court sided with the juvenile court and held that section 19-2-1302(1) authorizes
court-ordered “competency examinations” whenever the court “feels that the
9
information available to it is inadequate for making a competency finding.” The
district court also relied on People in Interest of W.P., 2013 CO 11, ¶ 35, 295 P.3d 514,
526, where we stated that “[b]y its plain language, the juvenile determination
statute accords the juvenile court discretion to decide when to order a competency
evaluation.”
¶15 Approximately three weeks later, B.B.A.M. filed a C.A.R. 21 petition
invoking our original jurisdiction. And we issued a rule to show cause.
II. Jurisdiction
¶16 The exercise of original jurisdiction under C.A.R. 21 rests solely within this
court’s discretion. People v. Tafoya, 2019 CO 13, ¶ 13, 434 P.3d 1193, 1195. We have
made clear, though, that relief under C.A.R. 21 is “an extraordinary remedy that
is limited in both purpose and availability.” People in Interest of T.T., 2019 CO 54,
¶ 16, 442 P.3d 851, 855–56 (quoting Villas at Highland Park Homeowners Ass’n v.
Villas at Highland Park, LLC, 2017 CO 53, ¶ 22, 394 P.3d 1144, 1151). In the past, we
have exercised our jurisdiction under C.A.R. 21 when an appellate remedy would
be inadequate, Fognani v. Young, 115 P.3d 1268, 1271 (Colo. 2005), when a party
may otherwise suffer irreparable harm, Hoffman v. Brookfield Republic, Inc., 87 P.3d
858, 861 (Colo. 2004), or when a petition raises “issues of significant public
importance that we have not yet considered,” Wesp v. Everson, 33 P.3d 191, 194
(Colo. 2001).
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¶17 In invoking our original jurisdiction, B.B.A.M. argues that there is no other
adequate remedy available, that he will suffer irreparable harm if we do not
intervene, and that his petition presents an issue of significant public importance
that we have never addressed. We agree with him and conclude that all three
grounds justify the exercise of our jurisdiction in this case.
¶18 First, without our intervention, B.B.A.M. will be forced to undergo a second
court-ordered competency evaluation. As such, ordinary appellate remedies in
the event of an adjudication cannot properly address his claim of error and are
inadequate.
¶19 Second, we have recognized that requiring a party “to undergo a medical
examination against her will” is a decision that “implicates her privacy interests in
her body and her health.” Schultz v. GEICO Cas. Co., 2018 CO 87, ¶ 13, 429 P.3d
844, 847. While this case does not involve a medical examination, Schultz is
nevertheless instructive because the district court upheld the juvenile court’s order
to have B.B.A.M. undergo a second competency evaluation against his will. If the
district court erred in doing so, there is at least potential for irreparable harm.
¶20 Finally, B.B.A.M.’s petition raises an issue of first impression that is of
significant public importance. Before 2017, “Colorado’s statutory scheme [did] not
designate an entity responsible for competency restoration services, nor [did] it
provide a sufficient framework for the provision of outpatient restoration services
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to adults or juveniles.” § 27-60-105(1)(a), C.R.S. (2019). “The lack of a designated
responsible entity for competency restoration services” led to “inconsistency in
competency restoration services . . . and delays in proceedings,” thereby
impacting “the due process rights of juveniles and adults involved in the juvenile
and criminal justice systems.” § 27-60-105(1)(b). In 2017, the legislature sought to
bridge this gap by designating OBH as the “central organizing structure and
responsible entity for the provision of competency restoration education services,
[and the] coordination of competency restoration services ordered by the court.”
§ 27-60-105(2) (emphases added); see also § 19-2-1303(2) (charging OBH with “the
oversight of restoration education and coordination of services necessary to
competency restoration”).
¶21 As the juvenile court acknowledged, the implementation of the 2017
legislation has not been without glitches and has caused some confusion. To
begin, OBH and the juvenile court understood section 19-2-1303(2) differently
—the former felt it required opinions from its providers related to a juvenile’s
progress toward competency; the latter did not. Additionally, while OBH agreed
to provide restoration services to B.B.A.M.,3 it subsequently took the position that
3 The General Assembly did not require OBH to render competency restoration
services throughout Colorado. Rather, as relevant here, it designated OBH as the
agency in charge of coordinating such services.
12
its providers had a conflict of interest that prevented them from opining about his
competency or the likelihood of restoring him to competency. This put the People
in a pickle at the May 1 hearing.
¶22 We believe that this appeal presents a good opportunity to shed light on the
2017 statutory amendments. Moreover, we are convinced that today’s decision
will have ramifications for many juveniles throughout the state because the issue
before us is likely to recur.
III. Standard of Review
¶23 Whether the juvenile court correctly determined it had authority to order a
second competency evaluation is a question of law that hinges on our
interpretation of the relevant statutes. We review de novo questions of statutory
interpretation and other questions of law. See People v. Chavez-Torres, 2019 CO 59,
¶ 11, 442 P.3d 843, 847; McCoy v. People, 2019 CO 44, ¶ 37, 442 P.3d 379, 389.
IV. Analysis
¶24 The district court relied primarily on section 19-2-1302(1) in upholding the
juvenile court’s order for a second competency evaluation. Such reliance was
misplaced.
¶25 When we interpret a statute, our goal is to give effect to the legislature’s
intent. Carrera v. People, 2019 CO 83, ¶ 17, 449 P.3d 725, 729. We must give the
statute’s words their plain and ordinary meaning, and we must read those words
13
“in context” and “according to the rules of grammar and common usage.” Id.
(quoting McCoy, ¶ 37, 442 P.3d at 389).
¶26 Like the juvenile court, the district court misconstrued the language of
section 19-2-1302(1). That provision is narrower in scope than the two lower courts
concluded: It applies “[w]henever the question of a juvenile’s competency to
proceed is raised” and “the court feels that the information available to it is
inadequate” to “make a preliminary finding that the juvenile is or is not competent
to proceed.” § 19-2-1302(1) (emphasis added). In other words, it applies only
when a juvenile’s competency is initially questioned—i.e., before a preliminary
finding, let alone a final determination, of competency or incompetency has been
made.
¶27 Here, the juvenile court correctly applied the provision when B.B.A.M.’s
counsel first raised B.B.A.M.’s competency to proceed. The court ordered a
competency evaluation because it felt it had inadequate information to make “a
preliminary finding” of competency or incompetency. However, the court erred
when it ordered a second competency evaluation. Regardless of the stage in the
proceedings when the question of competency is raised, nothing in section
19-2-1302(1) authorizes the court to order a competency evaluation after a final
determination of incompetency has been made and the juvenile has started
receiving court-ordered restoration services. The question at that point is no
14
longer whether the court feels it has inadequate information to make a preliminary
finding of competency or incompetency; it’s whether the juvenile, having received
court-ordered restoration services following a final determination of
incompetency, has been restored to competency. That inquiry is governed by sections
19-2-1304 and 19-2-1305, not section 19-2-1302(1).
¶28 Section 19-2-1304(1) authorizes the juvenile court to “order a restoration to
competency hearing . . . at any time on its own motion, on motion of the
prosecuting attorney, or on motion of the juvenile.” See also § 19-2-103(14.3), C.R.S.
(2019) (“‘Restoration to competency hearing’ means a hearing to determine
whether a juvenile who has previously been determined to be incompetent to
proceed has achieved or is restored to competency.”). Such a hearing is required
if a party submits a report from a competency evaluator with the requisite
qualifications certifying that the juvenile has been restored to competency. See
§ 19-2-1304(1). At a restoration hearing, the court must “determine whether the
juvenile has . . . [been] restored to competency.” § 19-2-1304(3).4
4 Had the juvenile court held a restoration hearing, the People, as the party
asserting that B.B.A.M. had been restored to competency, would have had “the
burden of submitting evidence and the burden of proof by a preponderance of the
evidence.” § 19-2-1304(2).
15
¶29 There is one other method that allows the court to find that a juvenile has
been restored to competency—“during a review, as provided in section
19-2-1303(2).” § 19-2-1305(1). Section 19-2-1303(2) states that when the court
makes a final determination that a juvenile is incompetent to proceed and orders
competency restoration services, it must conduct periodic reviews related to the
restoration services being provided, the juvenile’s participation in those services,
and, importantly, “the juvenile’s progress toward competency.”
¶30 Here, OBH asserted that its providers had a conflict of interest in opining
about B.B.A.M.’s progress toward competency or likelihood of being restored to
competency. But the statutory scheme does not contemplate the providers of
competency restoration services invoking such a conflict. Indeed, it is difficult to
envision how a juvenile court could ever comply with the requirement to
periodically review “the juvenile’s progress toward competency” if the providers
of the competency restoration services refuse to opine about his progress toward
competency. Nor is a juvenile court likely to be able to hold a meaningful
restoration hearing without the benefit of the providers’ opinions. In our view,
any individual agreeing to provide competency restoration services does so with
the expectation that he or she will report to the court the juvenile’s progress toward
competency. To the extent it wasn’t comfortable allowing its providers to render
any opinions, OBH, as the agency responsible for the “coordination of competency
16
restoration services” throughout the state, § 27-60-105(2), should have taken it
upon itself to find a qualified outside provider willing to do so.5
¶31 Given OBH’s conflict claim, we understand why the People requested a
second competency evaluation at the May 1 hearing. But we ultimately side with
B.B.A.M. because the juvenile court lacked authority to compel him to undergo a
second competency evaluation in lieu of holding a restoration hearing or a
restoration review.
¶32 We are not persuaded otherwise by our decision in W.P. It is true that we
said there that the juvenile court has “discretion to decide when to order a
competency evaluation.” W.P., ¶ 35, 295 P.3d at 526. However, when this
statement is read in context, it becomes clear that we did not mean to suggest that
a juvenile court may order a second competency evaluation in lieu of holding a
restoration hearing or a restoration review. We reiterate that after a court has
made a final determination of incompetency and a juvenile has started receiving
restoration services, the court must determine whether the juvenile has been
5We do not mean to validate OBH’s conflict claim. On the limited record before
us, we fail to apprehend the purported conflict of interest. Having OBH’s
providers opine that a juvenile has not yet been restored to competency, is not
progressing toward such restoration, or is not likely to be so restored is not
necessarily an adverse reflection on the efficacy of those services.
17
restored to competency either at a restoration hearing pursuant to section
19-2-1304(1) or during a restoration review pursuant to section 19-2-1303(2).6
¶33 The People also refer us to section 19-1-104(3)(a), C.R.S. (2019). But that
statute is inapposite. Section 19-1-104 is a jurisdictional statute that does not
mention competency, much less restoration to competency.
¶34 In sum, the juvenile court lacked authority to order B.B.A.M. to submit to a
second competency evaluation to determine whether he had been restored to
competency. It should have held a restoration hearing or a restoration review
instead.
V. Conclusion
¶35 We conclude that the district court erred in upholding the juvenile court’s
order compelling B.B.A.M. to undergo a second competency evaluation.
Therefore, we reverse and remand with instructions to return the case to the
juvenile court for further proceedings consistent with this opinion.
JUSTICE BOATRIGHT dissents, and JUSTICE HART joins in the dissent.
6 We are not aware of any authority that would preclude a party from re-raising
the question of a juvenile’s competency to proceed after he has been restored to
competency. In that situation, the process set forth in the statutory scheme would
commence anew. Hence, the court could order another competency evaluation if
it felt that the information available was inadequate to make a preliminary finding
of competency or incompetency.
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JUSTICE BOATRIGHT, dissenting.
¶36 A court may order a competency examination whenever it lacks adequate
information to determine whether a juvenile is competent to proceed in an
adjudication. § 19-2-1302(1), C.R.S. (2019). Despite this unambiguous statutory
directive, the majority concludes that a court may not order a juvenile to undergo
a second competency examination after it previously made a competency
determination. In my opinion, there is no such limitation in the statute. Further,
in finding such a limitation, the majority fails to properly consider the word
“whenever” in its analysis of the statute. By largely ignoring the word
“whenever,” the majority unnecessarily limits the trial court’s discretion and, in
so doing, deprives the court of the information necessary to make an accurate
competency determination. As a consequence, a juvenile found to be incompetent
may never be deemed restored to competency. I do not believe that the General
Assembly intended such a result. Nor do I believe that the majority’s
interpretation comports with the plain language of section 19-2-1302(1). Hence, I
respectfully dissent.
¶37 What the magistrate did in this case makes perfect sense. To briefly
summarize the facts, the juvenile here, who had previously been found to be
incompetent, had been receiving restorative services for approximately eleven
months and was reportedly doing well in those services. Thus, any information
1
the court had regarding the juvenile’s competency from the initial competency
examination was stale. The court, however, did not have anyone available to
opine as to the juvenile’s current competency. At that point, the magistrate
determined that she did not have adequate information to make a finding of
competency. She therefore looked to section 19-2-1302(1) and noted that the
question of the juvenile’s competency had been raised and the statute provided
that whenever competency is raised and the court’s information is inadequate to
make such a finding, it shall order a competency evaluation. Following the plain
language of the statute, she then ordered a second competency examination.
¶38 The plain language of section 19-2-1302(1) provides that the court has the
discretion to order a second competency examination whenever the competency
of the juvenile is at issue. In its entirety, section 19-2-1302(1) states:
Whenever the question of a juvenile’s competency to proceed is
raised, the court shall make a preliminary finding that the juvenile is
or is not competent to proceed. If the court feels that the information
available to it is inadequate for making such a finding, it shall order a
competency examination.
The statute, in effect, allows the parties or the court to raise the issue of the
juvenile’s competency at any stage of the proceeding. At the point in time that the
juvenile’s competency is called into question, the court must make a preliminary
finding regarding the juvenile’s competency. Typically, as in the case before us,
the court does not have enough information to make such a determination. In that
2
case, the court “shall order a competency evaluation.” § 19-2-1302(1) (emphasis
added).
¶39 The statute does not place limits on when the question of the juvenile’s
competency may be raised. Nor does it say anything about prior examinations or
what the procedural posture of the case must be in order to compel an
examination. As evidence of the breadth of the statute, the legislature specifically
authorizes the court to also order a competency examination even after a jury has
been impaneled. § 19-2-1302(3) (stating that the court has the discretion to order a
mistrial if it decides to “order[] the juvenile referred for a competency
examination”). In other words, a juvenile who was found competent earlier in the
proceedings could again have his current competency called into question. If the
court decides it does not have enough information at that point in time, then it
must order a competency examination. That is the practical effect of the word
“whenever” in the statute.
¶40 Not only is this the plain language of the statute, but it also makes sense.
Competency is a fluid concept. It can change. For instance, a juvenile who stops
taking psychotropic medication may quickly deteriorate, calling his competency
into question. The court needs adequate information about the juvenile’s
competency at that time, regardless of previous examinations.
3
¶41 As another example, a juvenile who was previously found to be
incompetent due to his young age or intellectual challenges, but has since been
taught about the criminal justice system and the various roles people have in it,
may now be ready to assist his lawyer and understand his rights. Again, the court
needs adequate information about the juvenile’s competency. Here too, the court
may order a competency examination.
¶42 These two examples demonstrate why the word “whenever” is critical to
the proper reading of the statute. It gives the appropriate breadth to its plain
language. This broad discretion makes sense because the question of a juvenile’s
competency can arise at any point in a case. Yet the majority concludes that the
plain language of section 19-2-1302(1) is “narrower in scope.” Maj. op. ¶ 26.
¶43 Indeed, the majority instead focuses on the restoration hearing statute,
section 19-2-1304(1), C.R.S. (2019), as the sole mechanism for determining whether
a juvenile is competent in situations such as these, where the court has already
found him to be incompetent to proceed. I agree that a hearing should be held
under section 19-2-1304(1). The issue I take with the majority’s reasoning is that it
treats sections 19-2-1302(1) and 19-2-1304(1) as mutually exclusive. A plain
reading of the statutes illustrates that this just isn’t so.
¶44 We cannot consider sections 19-2-1302(1) and 19-2-1304(1) in isolation.
Courts must construe a statute within the broader context of the entire statutory
4
scheme, “giv[ing] consistent, harmonious, and sensible effect to all parts.” Denver
Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011). Section 19-2-1304(1) provides
similarly broad language when it gives the court the discretion to order a hearing
at any time:
The court may order a restoration to competency hearing, as defined
in section 19-2-103(14.3), at any time on its own motion, on motion of
the prosecuting attorney, or on motion of the juvenile. The court shall
order a restoration of competency hearing if a competency evaluator
with the qualifications described in section 19-2-1302(4)(b) files a
report certifying that the juvenile is competent to proceed.
In effect, the restoration statute provides the court with discretion to order a
restoration hearing if it so chooses or at the parties’ request. As the statute
indicates, the hearing must conform with section 19-2-103(14.3), C.R.S. (2019),
which defines a “restoration to competency hearing” as “a hearing to determine
whether a juvenile who has been previously determined to be incompetent to
proceed has achieved or is restored to competency.” These statutes do not
preclude the court from ordering a second competency hearing under section
19-2-1302(1). To be sure, what is most notably absent from these statutes is any
mention of the procedure the court should follow if it lacks adequate information
to make a determination of competency at the restoration hearing. In my view,
this is intentional. The legislature did not need to reiterate that the court has the
authority to order an additional competency examination. Section 19-2-1302(1)
5
already does just that. It explicitly authorizes the court to order an examination
whenever it finds it is necessary. It would therefore be repetitive for the legislature
to provide this authority again in the restoration hearing statute.
¶45 I also take issue with the majority’s conclusion that section 19-2-1302(1) is
“narrower in scope.” Maj. op. ¶ 26. The majority claims that the provision
authorizes a court to order an examination when it lacks the requisite information
to “make a preliminary finding that the juvenile is or is not competent to proceed.”
Id. (quoting § 19-2-1302(1)). In doing so, the majority narrows the scope of the
restoration hearing statute by holding that section 19-2-1302(1) “applies only when
a juvenile’s competency is initially questioned.” Id. In my view, this interpretation
is misguided. The phrase “preliminary finding” does not mean when a juvenile’s
competency is “initially questioned.” Instead, “preliminary finding” means prior
to the court’s final determination of whether a juvenile is competent to proceed.
This can occur at any point in the delinquency proceeding. But under the
majority’s formulation, if a juvenile’s competency is reasonably questioned more
than once during the course of an adjudication proceeding, then the trial court may
only order a competency examination in the first instance, regardless of the
information—or lack of information—it has to make a subsequent determination.
This reading puts the trial judge in a very difficult position.
6
¶46 Under a common-sense reading, the phrase “preliminary finding” refers to
the court’s temporary determination of competency and not to the point at which
the issue of competency is raised. Thus, a more natural reading of section
19-2-1302(1) makes it evident that the legislature intended to provide the court
with the authority to order an additional competency examination before it makes
its final determination on the matter.
¶47 This is so because competency is a fluid concept; it is not immutable, nor is
it static. In fact, “a final determination of competence” only refers to a point in
time. And the General Assembly clearly recognized this when drafting the
juvenile competency statutes. Not only did the legislature provide procedures for
restoring a juvenile to competency, it also mandated that the court review the
juvenile’s progress toward competency every ninety days. § 19-2-1303(2), C.R.S.
(2019). This suggests that the General Assembly not only intended to provide
juveniles deemed incompetent to proceed with the necessary services to restore
them to competency, but also to recommence the delinquency proceedings in a
timely fashion. However, under the majority’s narrow interpretation of section
19-2-1302(1), a court cannot ensure that the legislature’s intent is fulfilled when it
lacks the requisite information to deem a juvenile competent. I fear that the
majority’s interpretation will inevitably lead to illogical results because the court
may never have sufficient information to determine a juvenile’s competency.
7
¶48 I do agree with the majority that the legislature contemplated that the Office
of Behavioral Health (“OBH”) would testify about a juvenile’s progress toward
competency at the restoration hearing. Unfortunately, OBH refuses to opine about
the juvenile’s competency due to a claim of conflict of interest. Under the
majority’s interpretation, I am concerned that the trial court is forced to shrug its
shoulders because it lacks sufficient information to determine whether a juvenile
has been restored to competency. The majority’s holding essentially divests the
trial court of its authority to make a determination at the restoration hearing by
disallowing it to order an additional competency examination. To be sure, the
statute provides that OBH is solely responsible for overseeing restoration or
coordinating the necessary restoration services. § 19-2-1303(2). The majority’s
holding necessarily means that only OBH, or an outside provider selected by OBH
to provide restoration services, will be in a position to control the answer to the
question of whether a juvenile has been restored to competency. The trial court
should not be constrained to rely exclusively on the word of OBH or OBH’s chosen
proxy. Instead, it should have the discretion—and indeed does have the discretion
under section 19-2-1302(1)—to order an additional competency examination
“whenever” it sees fit. In my view, the majority’s holding frustrates the General
Assembly’s intent.
8
¶49 In sum, I agree with the majority that a restoration hearing must be held for
the court to make a determination of the juvenile’s competency. But where I part
ways with the majority is in what evidence will be available for the court to make
such a determination. Under circumstances such as these where OBH refuses to
opine and a current competency examination cannot be ordered, how can the court
determine if the juvenile has been restored to competency? I fear the court will be
left to speculate. And that is not in the juvenile’s best interest.
¶50 I would therefore affirm the court’s decision below.7 Accordingly, I
respectfully dissent.
I am authorized to state that JUSTICE HART joins in this dissent.
7 The juvenile in this case also contends that compelling him to undergo another
competency evaluation would violate his Fifth Amendment right against self-
incrimination, which the majority understandably declines to address. The
legislature has specifically mandated that evidence obtained during competency
evaluations are inadmissible “on the issues raised by a plea of not guilty.”
§ 19-2-1305(3), C.R.S. (2019).
9