Art. 838. Procedure when capacity regained

A.(1) At any time after a child's commitment, if the Louisiana Department of Health or the superintendent of the mental institution reports to the committing court that the child presently has the mental capacity to proceed, the court shall:

(a) Hold a contradictory hearing within ten days on this issue and determine, for good cause shown and in accordance with the best interests of the child, if the child can be released from the custody of the Louisiana Department of Health. The hearing may be continued for up to three additional days.

(b) Appoint counsel to represent the child in accordance with Article 809 if the child no longer has counsel.

(2) If all parties stipulate that the child presently has the mental capacity to proceed, another mental examination by a competency commission is not necessary. If all parties do not agree that the child has the mental capacity to proceed, then the court shall order a mental examination by a competency commission to reevaluate the child. The court may release the child from the custody of the Louisiana Department of Health to a less restrictive environment during the reevaluation process.

B. The district attorney or the child may apply to the court to have the proceedings resumed on the ground that the child presently has the mental capacity to proceed. Upon receipt of such application the court shall order a mental examination by a competency commission appointed on the issue of whether the child presently has the mental capacity to proceed. The court may order the Louisiana Department of Health or superintendent of the mental institution where the child is committed to make a report as to the child's course of treatment and current mental status. The court shall hold a contradictory hearing within ten days to determine, for good cause shown and in accordance with the best interests of the child, if the child presently has the mental capacity to proceed. The court may continue the hearing for up to three additional days.

C. Reports as to present mental capacity to proceed shall be filed in conformity with Article 835, and the court's determination of present mental capacity to proceed shall be made in conformity with the provisions of Article 836.

D. If the court determines that the child has the mental capacity to proceed, the proceedings shall be promptly resumed. If the court determines that the child does not have the mental capacity to proceed, the court shall proceed in accordance with Article 837.

Acts 1991, No. 235, §8, eff. Jan. 1, 1992; Acts 2004, No. 485, §1, eff. Jan. 1, 2005; Acts 2006, No. 266, §1; Acts 2008, No. 222, §1, eff. June 16, 2008.