In In re C. L. E., 502 P.3d 1154 (Or. Ct. App. 2021), the Court of Appeals of Oregon cited Restatement of the Law, Children and the Law § 15.30 (Tentative Draft No. 2, 2019) (subsequently renumbered as § 13.40), which the membership approved at the 2019 Annual Meeting.

The case arose in 2014, when a 13-year-old youth was arrested for sexual misconduct. The youth had shown signs of developmental delay “nearly from the beginning of his life,” was diagnosed with intellectual disabilities and other disorders, and, at the time of his arrest, was living in a highly skilled foster home due to his developmental-disability needs. The trial attorney from the county public defender services who was appointed to represent the youth did not question his competency or seek a competency evaluation, because she “thought that youth ‘knew what [she] was talking about and he knew what he did.’” The youth entered an admission to attempted sexual abuse in the first degree, and the juvenile court ordered up to five years of probation, continued supervision by the county’s department of youth services, and registration with the Oregon State Police.

In 2018, the county public defender services withdrew from the youth’s representation due to a conflict that arose when one of his lawyers sought an evaluation of his current competency and a retroactive assessment of his competency at the time of the adjudication. The evaluating psychologist concluded that the youth “lacked the abilities to understand the nature of legal proceedings, to assist and cooperate with counsel, and to participate in his own defense, and, ‘to a reasonable degree of certainty that if [the psychologist] had evaluated [youth] in 2014, [she] would have found him unfit to proceed.’” The youth petitioned to set aside his adjudication, with his new counsel arguing that there was “a substantial denial of youth’s constitutional rights in the proceedings because youth was not competent at the time of adjudication and because he had received ineffective assistance of counsel.” The juvenile court denied the motion to set aside the adjudication, reasoning, among other things, “that the attorney’s impressions at the time of the adjudication—through her observations of youth—were a more reliable indication of youth’s competency than the 2018 psychological evaluation.”

The Court of Appeals of Oregon reversed and remanded with instructions to grant the youth’s motion to set aside the adjudication, concluding that the trial attorney’s failure to have the youth’s competency evaluated “was not the product of reasonable professional skill and judgment.” The court explained that, given factors such as the youth’s age, the nature of the offense, and the lifetime consequences of his plea to a felony sex offense, “it was not reasonable for counsel to base her assessment of youth’s competency to enter a plea on her conversations with youth, standing alone.” Citing Restatement of the Law, Children and the Law § 15.30 (subsequently renumbered as § 13.40) and Comment thereto (Tentative Draft No. 2, 2019), the court noted that there is a “need for case-specific assessment of a juvenile’s competency to be adjudicated delinquent.” The court reasoned that “whether a juvenile is competent to knowingly and voluntarily enter a plea in the context of a delinquency proceeding, particularly where, as here, the plea will have long-term consequences, depends largely on the particular juvenile’s developmental maturity, something difficult to assess without some expertise.” The court quoted § 15.30, Reporters’ Note to Comment d, to emphasize that ‘“[a] key component of competence to make a consequential plea decision is future orientation, the ability and inclination to understand the future consequences of choices, and to weigh the available options adequately.”’ Furthermore, the Restatement recognized that ‘“an individual might be competent to proceed in a proceeding involving a minor offense with straightforward evidence, little procedural complexity, and modest sanctions who would be incompetent under other circumstances,”’ citing § 15.30 and Comment thereto.

The court pointed out that, while a juvenile’s competency is dependent on the specifics of the case, the lawyer’s obligation to assess the juvenile’s competency “remains a constant.” The court determined that “counsel’s decision to proceed without an even rudimentary investigation of youth’s intelligence and decision-making capacity reflects an absence of professional skill and judgment,” particularly given that the probable-cause affidavit in support of the warrant for youth’s arrest, which the lawyer should have reviewed, stated that the youth was seeing a psychologist who had diagnosed him as developmentally disabled, that he functions at the level of an eight-year-old, and that he has an unspecified impulse-control disorder. The court concluded that the youth was prejudiced by the lawyer’s failure to have his competency evaluated, because if she had, she would not have permitted him to enter his plea or, failing that, the juvenile court would not have accepted his plea. The court reasoned that, according to the 2018 evaluation, the youth demonstrated his limited understanding of the adjudication through statements indicating his belief that “he has to answer any ‘question the judge asks’” and that “a plea of guilty is ‘that you did it’”; in addition, the record did not support that the youth had a cognitive decline between the time of his plea in 2014 and the time of his evaluation in 2018.

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Megan Dingley

The American Law Institute

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