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S.125

AN ACT RELATING TO CIVIL COMMITMENT FOR PEOPLE WITH MENTAL RETARDATION

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  13 V.S.A. § 4816 is amended to read:

§ 4816.  SCOPE OF EXAMINATION; REPORT; EVIDENCE

(a)  Examinations provided for in the preceding section shall have reference to:

(1)  Mental competency of the person examined to stand trial for the alleged offense;

(2)  Sanity of the person examined at the time of the alleged offense.

(b)  If the psychiatrist has reason to believe that the person examined may have mental retardation, the report of the psychiatrist shall include a current assessment by a licensed psychologist of the person’s cognitive skills and current functional abilities.

(b)(c)  As soon as practicable after the examination has been completed, the examining psychiatrist shall prepare a report containing findings in regard to each of the matters listed in subsection (a) of this section, and containing, in the case of a person with mental retardation found competent to stand trial, recommendations as to accommodations in the trial or pretrial process which may be needed as a result of the person’s disability.  The report shall be transmitted to the court issuing the order for examination, and copies of the report sent to the state’s attorney, and to the respondent’s attorney if the respondent is represented by counsel.

(c)(d)  No statement made in the course of the examination by the person examined, whether or not he or she has consented to the examination, shall be admitted as evidence in any criminal proceeding for the purpose of proving the commission of a criminal offense or for the purpose of impeaching testimony of the person examined.

(d)(e)  The relevant portion of a psychiatrist’s report shall be admitted into evidence as an exhibit on the issue of the person’s mental competency to stand trial and the opinion therein shall be conclusive on the issue if agreed to by the parties and if found by the court to be relevant and probative on the issue.

(e)(f)  Introduction of a report under subsection (d)(e) of this section shall not preclude either party or the court from calling the psychiatrist who wrote the report as a witness or from calling witnesses or introducing other relevant evidence.  Any witness called by either party on the issue of the defendant’s competency shall be at the state’s expense, or, if called by the court, at the court’s expense.


Sec. 2.  13 V.S.A. § 4820 is amended to read:

§ 4820.  HEARING REGARDING COMMITMENT

(a)  When a person charged on information, complaint or indictment with a criminal offense:

(1)  Is reported by the examining psychiatrist following examination pursuant to sections 4814-4816 of this title, to have been insane at the time of the alleged offense, except where the determination of insanity is due to mental retardation; or

(2)  Is found upon hearing pursuant to section 4817 of this title to be incompetent to stand trial due to a mental disease or mental defect disability other than mental retardation; or

(3)  Is not indicted upon hearing by grand jury by reason of insanity at the time of the alleged offense, duly certified to the court; or

(4)  Upon trial by court or jury is acquitted by reason of insanity at the time of the alleged offense;

the court before which such person is tried or is to be tried for such offense, shall hold a hearing for the purpose of determining whether such person should be committed to the custody of the commissioner of developmental and mental health services.  Such person may be confined in jail or some other suitable place by order of the court pending hearing for a period not exceeding fifteen 15 days.

(b)  When a person, charged on information, complaint or indictment with a criminal offense, is reported by the examining psychiatrist, following examination pursuant to sections 4814-4816 of this title, to have been not responsible for criminal conduct on account of mental retardation. or is found, upon hearing pursuant to section 4817 of this title, to be incompetent to stand trial due to mental retardation, the court shall order an evaluation, and proceed in accordance with section 4823 of this title.

Sec. 3.  13 V.S.A. § 4821 is amended to read:

§ 4821.  NOTICE OF HEARING; PROCEDURES

The person who is the subject of the proceedings, his or her attorney, the legal guardian, if any, the commissioner of the department of developmental and mental health services, and the state’s attorney or other prosecuting officer representing the state in the case, shall be given notice of the time and place of a hearing under the preceding section.  Procedures for hearings for persons who are mentally ill shall be as provided in chapter 181 of Title 18.  Procedures for hearings for persons who are mentally retarded with mental retardation shall be as provided in subchapter 3 of chapter 206 of Title 18 section 4823 of this title.


Sec. 4.  13 V.S.A. § 4823 is amended to read:

§ 4823.  FINDINGS AND ORDER EVALUATION AND HEARING;

               PERSONS WITH MENTAL RETARDATION

(a)  If the court finds that such person is a person in need of custody, care and habilitation as defined in section 8839 of Title 18, the court shall issue an order of commitment directed to the commissioner of developmental and mental health services for care and habilitation of such person for an indefinite or limited period in a designated program. 

(1)  Upon finding that a person is incompetent to stand trial or not responsible for criminal conduct because of his or her mental retardation, the court:

(A)  shall dismiss the charges without prejudice; and

(B)  may order the commissioner of developmental and mental health services to conduct an evaluation to determine whether the person is “a person in need of custody, care and habilitation” as defined in subsection (b) of this section, which shall include a determination of whether a petition for guardianship should be filed under subchapter 12 of Chapter 111 of Title 14 or Chapter 215 of Title 18. 

(2)  The court may make such provisions regarding custody and supervision of the person pending evaluation and hearing as it deems necessary for protection of public safety, including a determination that public safety requires that the person be held in a correctional facility.  If the person is held in a correctional facility, the court shall hold a hearing within 15 days to determine whether the person is a person in need of custody, care and habilitation who should be committed to the custody of the commissioner of developmental and mental health services.   

(b)  Such order of commitment shall have the same force and effect as an order issued under section 8843 of Title 18 and persons committed under such an order shall have the same status, and the same rights, including the right to receive care and habilitation, to be examined and dicharged, and to apply for and obtain judicial review of their cases, as persons ordered committed under section 8843 of Title 18.  As used in this chapter:

(1)  “Custody” means supervision and other measures that are designed to protect public safety.

(2)  “Habilitation” means treatment, training, practical experience, and supervision that are designed to improve the person’s skills, independence, competence and safety in a community setting.

(3)  “Person in need of custody, care and habilitation” means a person who:

(A)  has mental retardation, as defined, by rule, by the department of developmental and mental health services; and

(B)  presents a danger of harm to others as evidenced by the fact that the person has:

(i)  inflicted or attempted to inflict serious bodily injury on another; or

(ii)  committed an act that would constitute a sexual act as defined in section 3251 of Title 13, arson, kidnapping, unlawful restraint, burglary into an occupied dwelling, or lewd and lascivious conduct with a child.

(c)  Section 4822 of this title shall apply to persons proposed for discharge under this section; however, judicial proceedings shall be conducted in the district court in which the person then resides, unless the person resides out of state in which case the proceedings shall be conducted in the original committing court.

(1)  If the court orders the person to be held in a correctional facility pending evaluation, the court shall provide a copy of the evaluation, together with a notice of hearing to the person who is the subject of the proceedings, his or her attorney, the state’s attorney, the legal guardian, if any, and the commissioner of developmental and mental health services at least seven days prior to the hearing.

(2)  In all other cases, the court shall provide a copy of the evaluation, together with a notice of hearing to the person who is the subject of the proceedings, his or her attorney, the legal guardian, if any, and the commissioner of developmental and mental health services, and the state’s attorney or other prosecuting officer representing the state in the case at least 15 days prior to any hearing in the matter.

(3)  In all cases, the notice of hearing shall include a subpoena directed to the person conducting the evaluation, and the commissioner shall ensure that the subpoena is served upon the person conducting the evaluation.

(d)  Upon motion of the person, the person’s attorney, or the state, or upon its own motion, the court shall authorize an independent evaluation of the respondent by a qualified evaluator other than the one who conducted the evaluation pursuant to subsection (a) of this section.  A motion for an independent evaluation shall be made within ten days of receipt of the notice of hearing.  The costs of the independent evaluation shall be paid by the state.  The evaluator shall report his or her findings to the party requesting the report, or to the court, if the court requested the evaluation.

(e)  At hearing, the state shall appear and be represented by the state’s attorney for the county in which the charges were filed.  The respondent shall be present, and shall be represented by counsel as provided in subsection 5253(a) of this title.

(f)  The state shall have the burden of proving, by clear and convincing evidence, that the respondent is a person in need of custody, care and habilitation.  The state’s attorney may, with the approval of the court, dismiss the proceedings at any stage.

(g)  All persons to whom notice is given may attend the hearing and testify.  All parties may request subpoenas, present and cross-examine witnesses, and present oral arguments.  The court may, at its discretion, receive the testimony of any other person.  The court may exclude all persons not necessary for the conduct of the hearing.  The hearing shall be conducted according to the Vermont Rules of Evidence applicable in civil court actions.  Upon request, the court may seal the evaluation or transcript of the hearing, or both.  Any order of the court shall be a matter of public record.

Sec. 5.  13 V.S.A. § 4824 is added to read:

§ 4824.  FINDINGS AND ORDER; PERSONS WITH MENTAL

               RETARDATION

(a)  In all cases, the court shall make specific findings of fact and state its conclusions of law.

(b)  If the court finds that the respondent is not a person who is in need of custody, care and habilitation, it shall dismiss the charges without prejudice and order the respondent released from custody, subject to the charges being reinstated pursuant to subsection 4817(c) of this title.

(c)  If the court finds that the respondent is a person in need of custody, care and habilitation, it shall order the respondent committed for a period of up to one year to the custody of the commissioner for placement in the least restrictive environment which is capable of meeting the respondent’s needs, consistent with public safety and the respondent’s need for custody, care and habilitation. 

(d)  Judicial review of an order of commitment pursuant to subsection (c) of this section shall occur at least annually, pursuant to the provisions of 18 V.S.A. § 8845.  

Sec. 6.  18 V.S.A. chapter 206, subchapter 3 is amended to read:

Subchapter 3.  Judicial Proceedings; Persons with Mental Retardation

Who Present a Danger of Harm to Others

§ 8839.  DEFINITIONS

As used in this subchapter,

(1)  “Danger of harm to others” means the person has inflicted or attempted to inflict serious bodily injury to another or has committed an act that would constitute a sexual assault or lewd or lascivious conduct with a child.

(2)  “Designated program” means a program designated by the commissioner as adequate to provide in an individual manner appropriate custody, care and habilitation to persons with mental retardation receiving services under this subchapter.   Placement in the Brandon Training School may only be accomplished through the procedures set forth in subchapter 1 of chapter 206 of this title.

(3)  “Person in need of custody, care and habilitation” means:

(A)  a mentally retarded person;

(B)  who presents a danger of harm to others; and

(C)  for whom appropriate custody, care and habilitation can be provided by the commissioner in a designated program.

For purposes of this subchapter, “custody”, “habilitation”, and “person in need of custody, care and habilitation” shall have the same meanings as defined in 13 V.S.A. § 4823(b).

§ 8840.  JURISDICTION AND VENUE PERSONS SUBJECT TO

               COMMITMENT

Proceedings brought under this subchapter for commitment to the commissioner for custody, care and habilitation shall be commenced by petition in the district court for the unit in which the respondent resides.

A person is subject to the provisions of this subchapter if he or she has been committed to the custody of the commissioner of developmental and mental health services in accordance with the provisions of 13 V.S.A. § 4823.

§ 8841.  PETITION; PROCEDURES NONCOMPLIANCE WITH ORDERS

The filing of the petition and procedures for initiating a hearing shall be as provided in sections 8822-8826 of this title.  If, at any time during the period of an order issued pursuant to 13 V.S.A. § 4824 or pursuant to section 8845 of this title, the commissioner, the state’s attorney, or the program provider finds that the respondent is not complying with the order, or that the order is not adequate to meet the needs of public safety, the commissioner or the state’s attorney may file a motion for modification or enforcement of the order.  Any such motion shall be filed in family court for the unit where the person resides.  Hearings on such motions shall be in accordance with the procedures for judicial review in section 8845 of this title.

§ 8842.  HEARING CONFIDENTIALITY

Hearings under this subchapter for commitment shall be conducted in accordance with section 8827 of this title.

(a)  The commissioner and any program which is providing care, custody or habilitation to the person shall maintain as confidential all information regarding any person subject to commitment under this subchapter, and shall not release it without the consent of the person, except as provided in this section.  If the person is not able to consent to release of the information, then the information shall not be released without the consent of a guardian.  

(b)(1)  The commissioner shall release the information required for the person’s treatment and service needs, or for protection of the safety of others, to an individual or program which is providing care, custody or habilitation to the person.

(2)  The commissioner shall release information required for the protection of the safety of others to a representative of the state’s attorney or attorney general involved in proceedings under this chapter.

(c)(1)  The commissioner or program may make or authorize disclosure of information as follows:

(A)  to a law enforcement agency in a jurisdiction where the person resides or may be found; provided, that the agency shall only disclose information necessary to assure public safety;

(B)  unless restricted by court order, to a person who may be at risk, or to a person who is responsible for the safety of a person who may be at risk of harm, by the person without disclosure of confidential information;

(C)  to a victim of the person.

(2)  In making any disclosure authorized by this subsection, the commissioner or the program providing services shall release only information necessary to assure public safety.

(3)  For purposes of this subsection, “law enforcement agency” means:

(A)  The department of public safety, a municipal police department, a sheriff’s department, the attorney general’s office, a state’s attorney’s office, or certified law enforcement officers of the department of motor vehicles, the agency of natural resources, or the department of liquor control.

(B)  The department of social and rehabilitation services, when engaged in the investigation of child abuse and neglect.

§ 8843.  FINDINGS AND ORDER

(a)  In all cases, the court shall make specific findings of fact and state its conclusions of law.

(b)  If the court finds that the respondent is not a person in need of custody, care and habilitation, it shall dismiss the petition.

(c)  If the court finds that the respondent is a person in need of custody, care and habilitation, it shall order the respondent committed to the custody of the commissioner for placement in a designated program in the least restrictive environment consistent with the respondent’s need for custody, care and habilitation for an indefinite or a limited period.

§ 8845.  JUDICIAL REVIEW

(a)  A person committed under may be discharged from custody by a district judge after judicial review as provided herein or by administrative order of the commissioner.  A person committed under 13 V.S.A. § 4824 shall be entitled to a judicial review annually.  If no such review is requested by the person, it shall be initiated by the commissioner.  However, the person may not initiate a judicial review under this subsection at any time until 90 days after the most recent order of commitment.

(b)  Procedures Proceedings for judicial review of persons committed under this subchapter 13 V.S.A. § 4824 shall be as provided in section 8834 of this title except that proceedings shall be brought in the district family court for the county in which the person resides or, if the person resides out of state, in the unit county which issued the original commitment order.  The parties to judicial review shall be the commissioner, who shall be represented by the attorney general, and the respondent, who shall be represented by counsel, as provided in section 8846 of this title.  Upon motion of any party, or upon request of the court, the state’s attorney for the county where the charges were filed shall be notified of the proceedings.  The procedures and standard of proof shall be the same as the procedures and standard of proof contained in subsections 13 V.S.A. § 4823(d)‑(g). 

(c)  A person committed under this subchapter shall be entitled to a judicial review annually.  If no such review is requested by the person, it shall be initiated by the commissioner.  However, such person may initiate a judicial review under this subsection after 90 days of initial but before the end of the first year of the commitment.  Upon motion of the person, the person’s attorney, or upon its own motion, the court shall authorize an independent evaluation of the respondent by a qualified evaluator other than the one who conducted the evaluation pursuant to subsection 4823(a) of Title 13.  A motion for an independent evaluation shall be made within ten days of receipt of the notice of hearing.  The costs of the independent evaluation shall be paid by the state.  The evaluator shall report his or her findings to the party who requested the report, or to the court, if the court requested the evaluation.

(d)  If, at the completion of the hearing and after consideration of the record, the court finds at the time of the hearing that the state has shown, by clear and convincing evidence, that the person is still in need of custody, care and habilitation, commitment shall continue for an indefinite or limited period it shall order the person committed for up to one year to the custody of the commissioner of developmental and mental health services for placement in the least restrictive environment consistent with public safety and the respondent’s need for custody, care and habilitation.

(e)  If the court finds at the time of the hearing that the person is no longer in need of custody, care and habilitation, it shall discharge the person from the custody of the commissioner.  An order of discharge may be conditional or absolute and may have immediate or delayed effect.

(f)  A person committed under this subchapter may be discharged from custody by a family court judge after judicial review as provided herein, or by administrative order of the commissioner.  The commissioner shall not grant an administrative discharge to a person without providing 30 days’ notice of the proposed discharge to the state’s attorney for the county where the charges were filed.  Upon receipt of said notice, the state’s attorney may, within ten days, file a motion for judicial review of the need for continuing commitment as provided in subsection (b) of this section.

§ 8846.  RIGHT TO COUNSEL

Persons subject to commitment or judicial review under this subchapter shall have a right to counsel as provided in section 7111 of this title.

Sec. 7.  4 V.S.A. § 454 is amended to read:

§ 454.  JURISDICTION

Notwithstanding any other provision of law to the contrary, the family court shall have exclusive jurisdiction to hear and dispose of the following proceedings filed or pending on or after October 1, 1990.  The family court shall also have exclusive jurisdiction to hear and dispose of any requests to modify or enforce any orders issued by the district or superior court relating to the following proceedings:

(1)  All desertion and support proceedings and all parentage actions filed pursuant to chapter 5 of Title 15.

(2)  All rights of married women proceedings filed pursuant to chapter 3 of Title 15.

(3)  All enforcement of support proceedings filed pursuant to Title 15B.

(4)  All annulment and divorce proceedings filed pursuant to chapter 11 of Title 15.

(5)  All parent and child proceedings filed pursuant to chapter 15 of Title 15.

(6)  All grandparents’ visitation proceedings filed pursuant to chapter 18 of Title 15.

(7)  All uniform child custody proceedings filed pursuant to chapter 19 of Title 15.

(8)  All juvenile proceedings filed pursuant to chapter 55 of Title 33, including matters involving “youthful offenders” as that term is defined by 33 V.S.A. § 5502(18) whether the matter originated in the district or the family court.

(9)  All enforcement of support proceedings filed pursuant to chapter 39 of Title 33.

(10)  All protective services for mentally retarded persons proceedings filed pursuant to chapter 215 of Title 18.

(11)  All mental health proceedings filed pursuant to chapters 179, 181 and 185 of Title 18.

(12)  All involuntary sterilization proceedings filed pursuant to chapter 204 of Title 18.

(13)  All care for mentally retarded persons proceedings petitions for judicial review of commitment filed pursuant to chapter 206 of Title 18.

(14)  All abuse prevention proceedings filed pursuant to chapter 21 of Title 15.  Any district or superior judge may issue orders for emergency relief pursuant to section 1104 of Title 15.

(15)  All abuse and exploitation proceedings filed pursuant to subchapter 2 of chapter 69 of Title 33.

(16)  All emancipation of minors proceedings filed pursuant to chapter 217 of Title 12.

(17)  All proceedings relating to the dissolution of a civil union.