Section 12-15-90

Authority and procedure.

(a) The state, any county or municipality or any governmental agency, including, but not limited to, the Department of Human Resources or the Department of Youth Services, or any person, including a parent, legal guardian or other person standing in loco parentis, may petition to have any minor or child, as defined in this chapter, committed to the custody of the State Department of Mental Health and Mental Retardation on the basis that such minor or child is mentally ill or mentally retarded and as a consequence of such mental illness or mental retardation poses a real and present threat of substantial harm to himself or to others.

Such petition shall be verified and filed in the county in which such minor or child is located, petitioning the court to commit such minor or child to the custody of the State Department of Mental Health and Mental Retardation.

(b) When any such petition is filed, the court shall immediately review the petition and may require the petitioner to be sworn and answer under oath questions in regard to the petition and the minor or child sought to be committed.

If it appears from the face of the petition or from the testimony of the petitioner that the petition is totally without merit, the court may order the petition dismissed without further proceedings.

(c) Service of the petition upon the minor or child sought to be committed and upon his parents and other persons having legal responsibility shall be as provided in this chapter for service on minors and children generally or as otherwise provided by rule promulgated by the supreme court.

(d) (1) When any child or minor against whom a petition has been filed seeking to commit such child or minor to the custody of the Department of Mental Health and Mental Retardation is initially brought before the court, the court shall read the petition to such minor or child and to his parents, guardian and counsel, and inform such persons orally and in writing of the date, time and place of the next hearing to be held in regard to such minor or child, the purpose of such hearing, the rights of such child or minor at such hearing and the possible consequences of such hearing.

(2) The court shall ascertain the need for and ability to pay an attorney to represent the minor or child and shall appoint an attorney or guardian ad litem as in other proceedings under this chapter. No statement made or act done by such minor or child in the presence of the court prior to such minor or child obtaining the services of an attorney, by appointment or otherwise, shall be considered by the court in determining if such minor or child should be committed to the custody of the State Department of Mental Health and Mental Retardation.

(3) Notice of the filing of a petition under this section and of the date of final hearing shall be given to the State Department of Mental Health and Mental Retardation as provided by rules promulgated by the supreme court. Said notice shall constitute an application for admission to a facility maintained, operated or under the supervision and control of the Department of Mental Health and Mental Retardation.

Not less than 24 hours prior to the final hearing, said mental health department shall notify the district court whether adequate facilities are available for the minor or child and to which facility the minor or child should be sent if the district judge should determine that such minor or child is to be committed. No person shall be accepted if the facility does not have adequate facilities available or if acceptance would result in an overcrowded condition.

(e) At such time as a minor or child sought to be committed is first brought before the court, the court shall determine what limitations, if any, shall be placed upon such minor or child's liberty pending further hearings. No limitations shall be placed upon such minor or child's liberty unless such limitations are necessary to prevent such minor or child from doing substantial harm to himself or to others or to prevent such minor or child from leaving the jurisdiction of the court.

No such minor or child shall be placed in a juvenile detention facility or jail or other facility for persons accused of or convicted of committing crimes unless such minor or child poses a real and present threat of harm to himself or others and no other facility is available to safely detain such minor or child.

The court shall order such minor or child to appear at the times and places set for hearing the petition and may order and require the minor or child to appear at designated times and places to be examined by medical doctors or mental health professionals.

(f) If the district court shall find it necessary to temporarily confine or restrain any minor or child, pending final hearing on a petition for commitment, in the custody of any person or persons or agency other than his parent or parents or legal guardian, the court at the time such restraint or confinement is ordered shall set the petition for hearing within seven days to determine if probable cause exists that such minor or child should be committed.

Upon a finding of probable cause that such minor or child should be committed, the court shall enter an order so stating and setting the date, time and place of the hearing on the merits of such petition.

At such probable cause hearing the court shall determine if it is necessary to continue the restraint or confinement pending final hearing.

The final hearing shall be held on the merits of such petition within 30 days of the date that such minor or child was served with a copy of the petition seeking to commit such minor or child.

(g) At all hearings conducted in relation to a petition to commit any minor or child to the custody of the State Department of Mental Health and Mental Retardation, the following rules shall apply:

(1) The minor or child sought to be committed shall be present, unless prior to the hearing the attorney for such minor or child has filed in writing a waiver of the presence of such minor or child on the ground that the presence of such minor or child would be dangerous to such person's physical or mental health or that such minor or child's conduct could reasonably be expected to prevent the hearing from being held in an orderly manner and the court has determined from evidence that the waiver should be granted and has entered an order approving the waiver.

(2) The minor or child sought to be committed shall have the right to compel the attendance of and offer the testimony of witnesses, to be confronted with the witnesses in support of the petition and to cross-examine them and to testify in his own behalf, but no such minor or child shall be compelled to testify against himself.

(3) The court shall cause the hearing to be recorded stenographically, mechanically or electronically and shall retain such recording for a period of not less than three years from the date the petition is denied or granted and not less than the duration of any commitment pursuant to such hearing.

(4) All hearings shall be heard by the court without a jury, and the persons who may be present shall be as provided for in subsection (a) of Section 12-15-65.

(h) An attorney representing the state, any county or municipality or the Department of Youth Services or the Department of Human Resources or an attorney representing the person or persons filing a petition to have a minor or child committed may serve as the advocate in support of the petition to commit in all matters in regard to a petition to commit.

(i) At the final hearing upon a petition seeking to commit a minor or child to the custody of the Department of Mental Health and Mental Retardation on the basis that he is mentally ill, the court may grant the petition if substantial evidence proves that:

(1) The minor or child sought to be committed is mentally ill; and

(2) As a consequence of the mental illness, the minor or child poses a real and present threat of substantial harm to himself or to others; and

(3) The threat of substantial harm has been evidenced by a recent overt act; and

(4) Treatment is available for the minor's or child's mental illness or that confinement is necessary to prevent the minor or child from causing substantial harm to himself or to others; and

(5) Commitment is the least restricting alternative necessary and available for treatment of the minor's or child's illness. Upon such findings, the court shall enter an order setting forth the findings and may order the person committed to the custody of the State Department of Mental Health and Mental Retardation.

(j) At the final hearing upon a petition seeking to commit a minor or child to the State Department of Mental Health and Mental Retardation on the basis that he is mentally retarded, the court may grant the petition if substantial evidence proves that:

(1) The minor or child sought to be committed is mentally retarded; and

(2) The said mentally retarded minor or child is not borderline or mildly retarded. For the purposes of making this determination, the following definitions shall apply:

A borderline retarded person is an individual who is functioning between one and two standard deviations below the mean, and the mildly retarded person is an individual who is functioning between two and three standard deviations below the mean on a standardized intelligence test such as the Stanford Binet scale and on measures of adaptive behavior such as the American Adaptive Behavior scale; and

(3) The minor or child, if allowed to remain in the community, is likely to cause serious injury to himself or others, or that adequate care, rehabilitation and training opportunities are available only at a facility provided by the department of mental health and mental retardation.

Upon such findings, the court shall enter an order setting forth the findings, and may order the minor or child committed to the custody of the State Department of Mental Health and Mental Retardation.

(k) Any minor or child committed to the custody of the Department of Mental Health and Mental Retardation who, in the judgment of the Commissioner of Mental Health and Mental Retardation, has gained maximum benefit from institutional treatment or is no longer in need of the services of the Department of Mental Health and Mental Retardation or has gained maximum benefit from the programs of the Department of Mental Health and Mental Retardation shall be discharged from the custody of the Department of Mental Health and Mental Retardation and shall not be received again by the Department of Mental Health and Mental Retardation under the original commitment order unless deemed appropriate by a court of proper jurisdiction holding a subsequent hearing.

(l) The Department of Mental Health and Mental Retardation shall notify the committing court in writing at least 10 days in advance of the release. The committing court, at the time of release, shall then invest custody in a party or state agency which the court deems suitable.

(m) The court committing any minor or child to the custody of the State Department of Mental Health and Mental Retardation shall retain jurisdiction over such minor or child concurrently with the district court of the county in which the minor or child is subsequently located for so long as the minor or child is in the custody of the Department of Mental Health and Mental Retardation.

(Acts 1975, No. 1205, p. 2384, §5-137; Acts 1985, 2nd Ex. Sess., No. 85-928.)