# Title 27 — Judicial Branch of Government

## Chapter 27-20.5 — Fitness to Proceed and Remediation of Juveniles

### § 27-20.5-01. Definitions.

(Effective after January 1, 2027)
1. "Fitness to proceed" means sufficient present ability to consult with counsel and assist
in preparing the minor's defense with a reasonable degree of rational understanding or
a rational and factual understanding of the nature of the offense and delinquency
proceedings against the minor. A lack of fitness to proceed may result from the
presence of any condition, including mental illness, mental disorder, developmental
disability, or developmental immaturity.
2. "Minor" means an individual who is:
a. Under the age of eighteen years and is not married; or
b. Eighteen years of age or older with respect to a delinquent act committed while
under the age of eighteen years, and not married, unless an offense is
transferred under section 27-20.4-21.
3. "Remediation" means the process of providing learning opportunities, services, and
support to achieve fitness to proceed.
4. "Remediation provider" means an individual providing remediation services for minors.
5. "Tier 1a mental health professional" is a psychiatrist licensed under chapter 43-17 or a
psychologist licensed under chapter 43-32.
### § 27-20.5-02. Age.

(Effective after January 1, 2027)
1. An individual under the age of ten years is deemed incapable of commission of an
offense defined by the constitution or statutes of this state.
2. An individual ten years of age or older may be assessed for mental fitness or capacity
under this chapter.
### § 27-20.5-03. Motion for fitness to proceed examination.

(Effective after January 1,
2027)
1. If there is reason to doubt the minor's fitness to proceed, the court may order on its
own motion, or at the request of the minor, the minor's parent, legal guardian, legal
custodian, or attorney, or the prosecuting attorney, a fitness to proceed examination to
determine whether the minor is fit to proceed if the minor is the subject of a
delinquency petition in the court. The minor's fitness to proceed may be raised by the
court before which the proceedings are pending or being held, or by motion of a party,
at any time during the proceeding.
2. If there is reason to doubt the minor's fitness to proceed, adjudication may not occur
until after a determination is made on the fitness of the minor to proceed in accordance
with this chapter.
### § 27-20.5-04. Use of previous findings and records - Deflection.

(Effective after
January 1, 2027)
A minor who is found to lack fitness to proceed due to previous judicial findings of lack of
fitness to proceed or considerations from school, medical, or other records within the last twelve
months may have the delinquency proceedings dismissed before a fitness to proceed
examination or remediation services are administered.
### § 27-20.5-05. Due process.

(Effective after January 1, 2027)
1. If there is reason to doubt the minor's fitness to proceed, adjudication may not occur
until after a determination is made except the filing of a delinquency petition, until
counsel is appointed and notified in accordance with section 27-20.2-12 and the minor
is found to have the mental capacity to proceed.
2. After the case proceeds to adjudication or the minor is found to lack fitness to proceed,
the court shall order all of the reports that are submitted under this chapter to be
closed to the public. The court may order the reports be opened for inspection only:

a. For further fitness to proceed or criminal responsibility examination;
b. For statistical analysis;
c. If the records are considered to be necessary to assist in mental health treatment
ordered;
d. For data gathering;
e. For scientific study or other legitimate research;
f. To the state's attorney or minor's counsel for the purpose of an active court case
subject to the prior evaluation; and
g. To an employee or agent of the division of juvenile services or the department of
health and human services, if necessary in the performance of the employee's or
agent's duty.
3. If the court orders a report to be open for the purpose of de-identified statistical
analysis, data gathering, or scientific study, the report must remain confidential.
4. Any incriminating statement made by a minor to the tier 1a mental health professional
as part of a fitness to proceed examination may not be used against the minor over
objection in any proceeding.
### § 27-20.5-06. Fitness to proceed examination.

(Effective after January 1, 2027)
1. If there is reason to doubt the minor's fitness to proceed, the court shall order the
minor to be examined by a tier 1a mental health professional.
2. This section does not prohibit any party from retaining the party's own qualified tier 1a
mental health professional to conduct additional evaluations at the party's own
expense.
3. The fitness to proceed examination must be conducted in the least restrictive
environment and may not be conducted in a treatment facility as defined in section
25-03.1-02.
4. The court shall order the prosecuting attorney, minor's attorney, and juvenile court staff
to submit any information considered relevant to the fitness to proceed examination to
the tier 1a mental health professional, including:
a. The names and addresses of all attorneys involved;
b. Information about the alleged offense; and
c. Any information about the minor's background which is in the prosecuting
attorney's possession.
5. Except as prohibited by federal law, the court shall require the attorneys and juvenile
court staff to provide any available records regarding the minor and any other
information relevant to the examination to the tier 1a mental health professional,
including:
a. Psychiatric records;
b. School records;
c. Medical records; and
d. Child protective services records.
6. The requirement to provide records or information under subsections 4 and 5 does not
limit, waive, or abrogate the work product doctrine or the attorney-client privilege, and
release of records and information under subsections 4 and 5 is subject to the work
product doctrine and the attorney-client privilege.
7. The fitness to proceed examination must occur within twenty days from receipt of
materials identified in subsections 4 and 5 and notice of entry of the order served on
the tier 1a mental health professional.
a. The court may grant up to an additional fifteen days to complete the examination
if good cause is shown.
b. The materials required in subsections 4 and 5 must be disclosed
contemporaneously with the order.
c. The tier 1a mental health professional shall notify the court and request any
missing or additional information within seventy-two hours upon discovery of the
missing information or receiving this information, and the attorneys and juvenile

court staff have seven days to send the information to the tier 1a mental health
professional.
8. A tier 1a mental health professional who conducts a fitness to proceed examination
shall submit a written report to the court no later than fifteen days from completing the
fitness to proceed examination. The report must include:
a. A description of the nature, content, and extent of the examination, including:
(1) A description of the assessment procedure, technique, and test used;
(2) Medical, educational, and court records reviewed; and
(3) Social, clinical, developmental, and available legal history.
b. A clinical assessment that includes:
(1) A mental status examination;
(2) The diagnosis and functional impact of mental illness, developmental
disability, or cognitive impairment. If the minor is taking medication, the
impact of the medication on the minor's mental state and behavior;
(3) An assessment of the minor's intelligence and maturity level, when relevant;
(4) The minor's age, developmental state, and decisionmaking abilities; and
(5) Whether the minor has any other factor that affects fitness to proceed.
c. A description of abilities and deficits in the following mental competency functions
related to the minor's fitness to proceed:
(1) The ability to factually and rationally understand and appreciate the nature
and object of the proceedings, including the ability to:
(a) Understand the role of the participants in the court process, including
the roles of the judge, the minor's attorney, the prosecuting attorney,
the probation officer, witnesses, and the jury, and to understand the
adversarial nature of the process;
(b) Appreciate the offense and understand the seriousness of the offense;
(c) Understand and realistically appraise the likely outcomes; and
(d) Extend thinking into the future.
(2) The ability to render meaningful assistance to the minor's attorney in the
preparation of the case, including:
(a) The ability to disclose to an attorney a reasonably coherent
description of facts and events pertaining to the charge, as perceived
by the minor;
(b) The ability to consider the impact of the minor's action on others;
(c) Verbal articulation abilities or the ability to express himself or herself in
a reasonable and coherent manner;
(d) Logical decisionmaking abilities, including multifactored problem
solving or the ability to take several factors into consideration in
making a decision;
(e) The ability to reason about available options by weighing the
consequences, including distinguishing between a not guilty and guilty
plea, weighing pleas, dispositions, waivers, and strategies; and
(f) The ability to display appropriate courtroom behavior and testify
relevantly.
9. The tier 1a mental health professional shall provide the court with a written report
about the minor's fitness to proceed. If the tier 1a mental health professional
determines the minor lacks fitness to proceed, the tier 1a mental health professional
shall comment on the nature of any psychiatric or psychological disorder or cognitive
impairment, the prognosis, and the available services needed to remediate the minor
to fitness, if possible, within a projected time frame.
10. The court shall provide copies of the written report to the minor's attorney, the
prosecuting attorney, the parents' attorney, and any guardian ad litem for the minor as
soon as possible.

### § 27-20.5-07. Fitness to proceed hearing.

(Effective after January 1, 2027)
1. The court shall hold a hearing to determine if the minor is fit to proceed no later than
ten days after the report is filed under section 27-20.5-06. At the hearing, the
prosecution and defense have the right to summon and cross-examine any individual
responsible for the report and introduce other evidence regarding the minor's mental
condition or may submit the matter by written stipulation based on the filed report.
2. If the court finds the minor lacks fitness to proceed and that there is a substantial
likelihood the minor will not attain fitness during the period of the remediation order,
the court shall proceed to disposition under section 27-20.5-09.
3. The tier 1a mental health professional may appear via reliable electronic means unless
objected to by the parties.
4. If the court finds the minor is fit to proceed, the delinquency proceedings must
proceed.
### § 27-20.5-08. Remediation.

(Effective after January 1, 2027)
1. If the minor lacks fitness to proceed but the court finds the minor may be remediated to
fitness to proceed within the period of the remediation order:
a. The matter must be dismissed if the offense is an infraction or a class B
misdemeanor, except a class B misdemeanor under chapter 12.1-17; or
b. The court may dismiss the matter or suspend the proceedings against the minor if
the offense is a felony, class A misdemeanor, or class B misdemeanor under
chapter 12.1-17.
2. If the proceedings are suspended because the minor lacks fitness to proceed but the
court finds the minor may be remediated to fitness within the period of the remediation
order, then:
a. Before issuing a remediation order, the court shall hold a hearing to determine the
least restrictive available environment for completion of the remediation. The
least restrictive available environment may not be at the state hospital or the life
skills and transition center.
b. The court may issue a remediation order that is valid for sixty days from the date
of the court order finding the child incompetent or until one of the following
occurs, whichever occurs first:
(1) The minor has regained fitness or there is no substantial likelihood the minor
will regain fitness within the period of the order; or
(2) The delinquency proceedings are dismissed.
c. Following issuance of the remediation order, the remediation provider shall
submit a report to the court regarding the progress a minor made in remediation
services. The report must be submitted to the court no later than fourteen days
before the expiration of the sixty-day order or sooner if:
(1) The remediation provider determines the minor no longer lacks fitness to
proceed; or
(2) The remediation provider determines there is no substantial probability the
minor will be fit to proceed within the period of the order.
3. No later than fourteen days before the expiration of the initial sixty-day order, the
remediation provider may recommend to the court that the remediation order be
renewed by the court for another sixty days, if there is a substantial probability the
minor will be fit to proceed within the period of that renewed remediation order. The
remediation provider shall include a report of progress a minor made in remediation
services which demonstrates the minor is likely to be found fit to proceed if a renewal
is ordered. The remediation order and any renewed remediation order may not exceed
a total of one hundred twenty days.
### § 27-20.5-09. Disposition.

(Effective after January 1, 2027)
1. Except as otherwise provided in this section, upon receipt of a report by the tier 1a
mental health professional that the minor lacks fitness to proceed and there is a

substantial likelihood the minor is unable to be remediated within the period of the
remediation order, the court may:
a. Dismiss the delinquency proceedings and release the minor to the minor's parent,
legal guardian, or legal custodian; or
b. Retain jurisdiction and release the minor to the minor's parent, legal guardian, or
legal custodian subject to mental health treatment or services under subsection 2.
2. The court may in its discretion order mental health services or other available services
from a mental health provider be provided to the minor by a community mental health
services program, the department of health and human services, or another
appropriate mental health services provider, subject to the availability of inpatient or
outpatient care, for a period not to exceed sixty days.
a. The court retains jurisdiction over the minor throughout the duration of the order
and the juvenile court officer may assist with referrals, the assessment process,
and reporting to the court.
b. The entity providing services under this subsection shall determine necessary
mental health treatment or services.
3. No later than fourteen days before the expiration of the order for mental health
treatment or services under this subsection or subsection 2, a report by the juvenile
court officer must be provided to the court regarding the minor. The court shall review
the report and:
a. Renew the order for another period of mental health treatment or services not to
exceed sixty days. The order for mental health treatment or services and any
renewed order may not exceed a total of one hundred twenty days; or
b. Determine custody of the minor and dismiss the delinquency proceedings against
the minor.
4. If release to the minor's parent, legal guardian, or legal custodian is determined
inappropriate under subsection 1, the court may dismiss the delinquency proceeding
and direct proceedings under chapter 27-20.3.
