                IN THE SUPREME COURT, STATE OF WYOMING

                                             2013 WY 49

                                                                    APRIL TERM, A.D. 2013


                                                                             April 25, 2013


IN THE INTEREST OF:

SWM

Petitioner,
                                                                    No. S-12-0154
v.

THE STATE OF WYOMING,

Respondent.

                                     Original Proceeding
                                  Petition for Writ of Review
                              District Court of Campbell County
                           The Honorable Michael N. Deegan, Judge

Representing Petitioner:
      Diane M. Lozano, State Public Defender; Aaron Hockman, Assistant Public
      Defender; Tina N. Olson, Appellate Counsel. Argument by Mr. Hockman.

Representing Respondent:
      Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney
      General; Theodore R. Racines, Senior Assistant Attorney General. Argument by
      Mr. Delicath.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.

[¶1] In this interlocutory appeal, Petitioner, SWM, challenges the juvenile court’s
determination that he was competent to proceed to adjudication in a delinquency
proceeding. He contends that the juvenile court violated his constitutionally protected
due process rights when it disregarded relevant evidence and failed to apply the proper
standard in determining competency. We agree and, accordingly, reverse and remand for
further proceedings.

                                               ISSUE

[¶2] SWM presents one issue: Do the Constitutions of the United States and the State
of Wyoming require that the due process considerations that underlie Wyo. Stat. Ann.
§ 7-11-303 also apply in determining the competency of a minor under Wyo. Stat. Ann.
§ 14-6-219?

                                               FACTS

[¶3] On December 23, 2011, the State filed a petition in juvenile court alleging that
SWM had committed two delinquent acts.1 SWM was twelve years old at the time of the
alleged delinquent acts. During his initial appearance, SWM was informed of “the
consequences . . . of being a Delinquency Child,” and was advised of his “rights
guaranteed by the Constitutions of the United States and the State of Wyoming.” SWM
was also advised that juvenile court was different than criminal court, but the juvenile
court made it clear that SWM faced the possibility of significant sanctions if adjudicated
delinquent. Those sanctions included required participation in “a highly intensive and
regimented residential program” for not less than three months, continued probation for
six to twelve months with “highly structured restrictions on your activities and
requirements for your behavior,” or commitment “to the juvenile detention unit of the
Campbell County detention facility, county jail, for no more than six months.” In spite of
the best efforts of the court, the transcript reflects little understanding by SWM regarding
his rights or the significance of the charges he was facing. Ultimately, the court advised
SWM that an attorney would be appointed to represent him, and entered a “denial” of the
allegations on behalf of SWM.

[¶4] Counsel was appointed and shortly thereafter a “Motion to Suspend Proceedings
for Evaluation under 7-11-303 and 14-6-219” was filed. As grounds for the motion,
counsel asserted that he had developed concerns about SWM’s “understanding of the


1
  Both allegations were for sexual abuse of a minor in the fourth degree in violation of Wyo. Stat. Ann.
§ 6-2-317(a)(i) (LexisNexis 2011).




                                                   1
proceedings and nature of the allegations against him based upon [his] age, development
and nature of the charges against him.” The State did not object and the juvenile court
granted the motion. The Order granting the motion reflects that the court determined that
“Wyoming Statute § 7-11-303(b), (c), (d) et seq. and § 14-6-219 require an examination
of the Minor for competency to proceed.” The Order specifically required that a written
report of the examination be filed with the Clerk of Court pursuant to Wyo. Stat. Ann.
§ 7-11-303(c) and Wyo. Stat. Ann. § 14-6-219 and that the report include the following:

             I.     Detailed findings.

             II.    An opinion as to whether the Minor has a mental
                    illness or deficiency, and its probable durations.

             III.   An opinion as to whether the Minor, as a result of
                    mental illness or deficiency, lacks the capacity to
                    comprehend his position, to understand the nature and
                    object of the proceedings against him, to conduct his
                    defense in a rational manner, and to cooperate with his
                    counsel to the end that any available defense may be
                    interposed.

             IV.    A recommendation as to whether the Minor should be
                    held in a designated facility for treatment pending
                    determination by the Court of the issue of mental
                    fitness to proceed.

             V.     A recommendation as to whether the Minor, if found
                    by the Court to be mentally fit to proceed, should be
                    detained in a designated facility pending further
                    proceedings.

[¶5] Subsequently, SWM was evaluated as an outpatient by a forensic psychologist
associated with the Wyoming State Hospital. Her Forensic Evaluation was filed with the
court in June, 2012. The report noted that SWM had been in special education classes
since he began school, and that a test given by the school had assessed his intelligence
quotient at 71, indicating borderline intellectual functioning. She diagnosed SWM as
displaying “Attention Deficit Hyperactivity Disorder” as well as deficits in expressive
language and language comprehension.

[¶6] With regard to his competency to proceed, and in compliance with the court
Order, the psychologist provided conclusions regarding competency. In her report, the
psychologist stated:



                                           2
             Conclusions Regarding Competency under W.S. § 14-6-
             219:
             Although, [SWM] would not be expected to perform
             academically or cognitively at the level of an average 12-
             year-old, there is no information to support the involuntary
             commitment of this Minor. He is aware that he is in serious
             trouble and could be taken from his home. Thus, based on all
             available information, it is this examiner’s opinion that
             [SWM], a child alleged to be delinquent, is not “suffering
             from mental illness or intellectual disability to a degree
             rendering [him] subject to involuntary commitment” and
             would, therefore, be deemed competent to proceed in juvenile
             court.

             Conclusions Regarding Capacity to Proceed under W.S.
             § 7-11-303:
             [SWM] is a 12-year-old male diagnosed with ADHD and an
             IQ of 71. He showed moderate to severe deficits in all four
             capacities required for fitness to proceed under W.S. § 7-11-
             303. Although it is possible with several months of
             remediation that he might attain the required factual
             capacities, it is unlikely that he could attain the required
             rational capacities in the foreseeable future. His deficits
             regarding rational capacities are likely directly related to his
             age (e.g., developmental immaturity, social immaturity) as
             well as his intellectual functioning, cognitive immaturity, and
             ADHD. Thus, it can be stated with a reasonable degree of
             psychological certainty that [SWM] does not have sufficient
             present capacity to comprehend his position, to understand
             the nature and object of the proceedings against him, to
             conduct his defense in a rational manner, and to cooperate
             with counsel to the end that any available defense may be
             interposed in adult criminal court. With time and formal
             education, [SWM] might be expected to attain these
             capacities in his late teens or early twenties.

[¶7] After the report was filed, the State filed a “Motion to Strike Portions of
Evaluation Beyond the Scope of the Juvenile Justice Act.” In its motion the State asked
the court to “strike all portions of the juvenile’s forensic evaluation that were conducted
pursuant to W.S. 7-11-303 as they are irrelevant to these proceedings.” SWM filed a
resistance to the motion contending that failure to perform a proper competency
evaluation impacted SWM’s constitutional due process rights. SWM contended that
Wyo. Stat. Ann. § 14-6-219 and the remainder of the Juvenile Justice Act were “silent on


                                            3
what constitutes competency in juvenile court,” and that competency should be
determined in accordance with the standards set forth in Wyo. Stat. Ann. § 7-11-303.

[¶8] After a hearing, the juvenile court granted the motion. The juvenile court
determined that it would not consider that portion of the psychologist’s evaluation
dealing with SWM’s competency to stand trial as an adult criminal defendant. It
explained in its “Order Determining the Court will Disregard the Portion of the
Evaluation Concerning a Conclusion as to the Minor’s Competency Pursuant to W.S. 7-
11-303” that the statute is “clear and unambiguous” and applies “at any stage of a
criminal proceeding.” (Emphasis in original.) It continued that, “given the nature of
juvenile proceedings (i.e. the fact they are special civil proceedings and not criminal
proceedings) and the stated goals of juvenile proceedings (namely to provide treatment,
training and rehabilitation for juvenile offenders), W.S. § 7-11-303 has no application in
the case at bar and this determination does not amount to a denial of the Minor’s due
process rights.” In the Order, the court concluded that it would disregard that portion of
the report entitled “Conclusions Regarding Capacity to Proceed under W.S. § 7-11-303.”

[¶9] In response, SWM sought a second competency evaluation and a hearing to
determine competency. After a hearing, the district court denied the motion for a second
competency evaluation and found that SWM was competent to proceed. The court
explained in its order: “The Court having received and reviewed the Forensic Evaluation
of the juvenile by the Wyoming State Hospital, finds that the juvenile does not suffer
from a mental illness or intellectual disability to a degree [rendering] him subject to
involuntary commitment at the Wyoming State Hospital or Wyoming Life Resource
Center and is competent to proceed.” SWM filed a petition for writ of review with this
Court, seeking review of the juvenile court’s decision. We granted the petition. The
proceedings below have been stayed pending our decision.

                               STANDARD OF REVIEW

[¶10] “The appellant’s claim that his constitutional due process rights have been violated
is reviewed de novo by this Court.” In re CT, 2006 WY 101, ¶ 8, 140 P.3d 643, 646
(Wyo. 2006). With particular regard to the issues before us, we have said that “the
standard of competency is . . . a question of law which we review de novo.” Deshazer v.
State, 2003 WY 98, ¶ 12, 74 P.3d 1240, 1244-45 (Wyo. 2003), quoting Lafferty v. Cook,
949 F.2d 1546, 1550 (10th Cir. 1991). To the extent this case raises questions of statutory
interpretation, those are also questions of law that we review de novo. Qwest Corp. v.
State, 2006 WY 35, ¶ 8, 130 P.3d 507, 511 (Wyo. 2006).

                                     DISCUSSION

[¶11] To begin our discussion, it is helpful to capsulize the positions of the parties.
SWM contends that a minor subject to a delinquency petition is entitled to a competency


                                            4
determination incident to his constitutionally protected due process rights. The State
does not appear to challenge that assertion. The disagreement relates to the applicable
standards for determining the competency of a minor. SWM contends that there is no
specific test for competency set forth in Wyoming’s Juvenile Justice Act, Wyo. Stat.
Ann. §§ 14-6-201 et seq., and that competency should be evaluated using the standards
set forth in the Wyoming Criminal Code, Wyo. Stat. Ann. §§ 7-11-301 et seq. Petitioner
claims that the juvenile court erred by applying an incorrect standard in reaching the
determination that he was competent. The State contends that the competency of a
juvenile in delinquency proceedings is governed by Wyo. Stat. Ann. § 14-6-219. It
asserts that actions brought under the Juvenile Justice Act are civil in nature, not criminal,
and that the competency provisions set forth in Wyoming’s Criminal Code are
inapplicable in juvenile proceedings. The State contends that the juvenile court properly
determined that SWM was competent to proceed with the delinquency adjudication.

[¶12] In criminal court, it has “long been accepted that a person whose mental condition
is such that he lacks the capacity to understand the nature and object of the proceedings
against him, to consult with counsel, and to assist in preparing his defense may not be
subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43
L.Ed.2d 103 (1975); see also Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15
L.Ed.2d 815 (1966). Our decisions also have consistently recognized that “mental
competency to stand trial is an element of the due process right to a fair trial.” Loomer v.
State, 768 P.2d 1042, 1045 (Wyo. 1989); Fletcher v. State, 2010 WY 167, ¶ 13, 245 P.3d
327, 331 (Wyo. 2010). The competency of an accused is broadly defined as his present
ability to understand the nature of the proceedings against him and to participate in his
own defense. Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d
824 (1960).

[¶13] In 1967, the United States Supreme Court recognized that children in juvenile
courts also have due process rights, stating that “neither the Fourteenth Amendment nor
the Bill of Rights is for adults alone.” In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436,
18 L.Ed.2d 527 (1967). The Court explained that it was not deciding whether the full
spectrum of due process rights applicable to criminal defendants also applied in juvenile
court, id. at 10-11, 87 S.Ct. at 1435, but it specifically held that juveniles have the right to
notice of the charges against them, id. at 33, 87 S.Ct. at 1446-47, the right to counsel, id.
at 41, 87 S.Ct. at 1451, the privilege against self-incrimination, id. at 55, 87 S.Ct. at 1458,
and the right to confront witnesses against them. Id. at 57, 87 S.Ct. at 1459. In
subsequent decisions, the Court expanded the rights of juveniles to include protection
from double jeopardy, Breed v. Jones, 421 U.S. 519, 541, 95 S.Ct. 1779, 1791, 44
L.Ed.2d 346 (1975), and the requirement that charges against them must be proven
beyond a reasonable doubt. In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1075, 25
L.Ed.2d 368 (1970). The Court has, however, never specifically stated that juveniles
have the due process right not to be adjudicated delinquent unless they are competent.
We have recognized that Gault “provides juveniles in delinquency proceedings the rights


                                               5
which are recognized as constitutional due process under the Fourteenth Amendment,
including a notice of the charges, right to counsel, right of confrontation at cross-
examination, and privilege against self-incrimination.” Hansen v. State, 904 P.2d 811,
822 (Wyo. 1995). See also In re LDO v. State, 858 P.2d 553, 556 (Wyo. 1993).

[¶14] One of the stated purposes of Wyoming’s Juvenile Justice Act is to “provide a
simple judicial procedure through which the provisions of this act are executed and
enforced and in which the parties are assured a fair and timely hearing and their
constitutional and other legal rights recognized and enforced.” Wyo. Stat. Ann. § 14-6-
201(c)(vi). The act specifically provides that children in juvenile court proceedings have
the right to notice of the charges against them, the right to counsel, the privilege against
self-incrimination, the right to confront adverse witnesses, and the requirement that
charges against them must be proven beyond a reasonable doubt. Wyo. Stat. Ann. §§ 14-
6-222, -223, and -225. Although the Juvenile Justice Act does not explicitly address the
question, we have recognized that double jeopardy attaches in juvenile proceedings.
Haynes v. State, 2012 WY 151, ¶ 9, 288 P.3d 1225, 1227 (Wyo. 2012).

[¶15] Wyo. Stat. Ann. § 14-6-219(a), which is analyzed more fully later in this opinion,
provides that the juvenile court “may order the child to be examined by a licensed and
qualified physician, surgeon, psychiatrist or psychologist designated by the court to aid in
determining the physical and mental condition of the child.” The statute does not
explicitly say what purposes may be served by such an examination. It is a reasonable
inference, however, that an evaluation of the juvenile’s competency to proceed with the
adjudication is an appropriate purpose for an examination of the juvenile’s mental
condition. The Supreme Court of Indiana reached a similar conclusion when it
interpreted a comparable statute allowing the juvenile court to order “medical
examinations and treatment” of a child. “Although the statute does not specifically
mention ‘competency,’ given a juvenile court’s flexibility in addressing the needs of
children and acting in their best interest, we conclude that this statute allows for the
examination and/or treatment of a child after a delinquency petition has been filed in
order to determine the child’s competency.” In re K.G., 808 N.E.2d 631, 639 (Ind. 2004).

[¶16] Many other states have concluded that children have the due process right to be
subject to juvenile proceedings only if they are competent. SWM cites State ex rel.
Dandoy v. Superior Court, 127 Ariz. 184, 187, 619 P.2d 12, 15 (1980), which stated that,
“In the context of a juvenile delinquency adjudicatory proceeding the right not to be tried
or convicted while incompetent has been held to be a fundamental right.” The Arizona
Supreme Court noted that the United States Supreme Court established “that due process
requires that a juvenile have notice of the charges against him and the right to assistance
of counsel.” Id. It reasoned that these rights “would be meaningless if the juvenile,
through mental illness, was unable to understand the charges or assist in her own
defense.” Id. It also cited In re Welfare of S.W.T., 277 N.W.2d 507, 511 (Minn. 1979),
which stated that:


                                             6
              The competency of an accused is generally defined as his
              ability to understand the nature of the proceedings against
              him and to participate in his own defense. See, Dusky v.
              United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824
              (1960); Rule 20.01, subd. 1, Rules of Criminal Procedure.
              Although the general area of competency is usually discussed
              in connection with adult criminal proceedings, we regard the
              right not to be tried or convicted while incompetent to be a
              fundamental right, even in the context of a juvenile
              delinquency adjudicatory proceeding.

Decisions from several jurisdictions have extended the due process right to proceed only
if competent to children in juvenile courts. E.g., In re Bailey, 782 N.E.2d 1177, 1179
(Ohio App. 2002); In re Carey, 615 N.W.2d 742, 748 (Mich. App. 2000); In re K.G., 808
N.E.2d at 632. When it considered the issue, the North Dakota Supreme Court said,

              we now hold that juveniles have a due process right not to be
              subjected to the adjudicative stage of juvenile proceedings
              while incompetent. By so holding, we join a number of other
              jurisdictions that have previously considered the issue and
              have similarly concluded the right not to be tried while
              mentally incompetent is as fundamental in juvenile
              proceedings as it is in adult criminal trials.

In re T.S., 2011 ND 118, ¶ 18, 798 N.W.2d 649, 655 (N.D. 2011). It cited cases with
similar rulings from nine other states.

[¶17] We are persuaded by the reasoning of these decisions. The Wyoming Juvenile
Justice Act and our decisions recognize that children in juvenile court have due process
rights. The right to counsel is of little value to a juvenile if he is incompetent to assist
that counsel in presenting a defense. Similarly, the right to notice of the charges is futile
if the juvenile is not competent to comprehend them. A juvenile’s recognized due
process rights are pointless if the child is not competent to exercise them. We therefore
hold that a child in juvenile court has a due process right not to proceed with the
adjudication of his delinquent status unless he is competent.

[¶18] The juvenile court in this case did make the determination that SWM was
competent to proceed. As noted earlier, the question is whether the court applied the
correct standards in determining SWM’s competency. The court relied on the provision
of the Wyoming Juvenile Justice Act dealing with competence, Wyo. Stat. Ann. § 14-6-
219, which provides in relevant part as follows:



                                             7
(a) Any time after the filing of a petition, on motion of the
district attorney or the child’s parents, guardian, custodian or
attorney or on motion of the court, the court may order the
child to be examined by a licensed and qualified physician,
surgeon, psychiatrist or psychologist designated by the court
to aid in determining the physical and mental condition of the
child. The examination shall be conducted on an outpatient
basis, but the court may commit the child to a suitable
medical facility or institution for examination if deemed
necessary. Commitment for examination shall not exceed
fifteen (15) days. . . .

(b) If a child has been committed to a medical facility or
institution for mental examination prior to adjudication of the
petition and if it appears to the court from the mental
examination that the child is competent to participate in
further proceedings and is not suffering from mental illness or
intellectual disability to a degree rendering the child subject
to involuntary commitment to the Wyoming state hospital or
the Wyoming life resource center, the court shall order the
child returned to the court without delay.

(c) If it appears to the court by mental examination
conducted before adjudication of the petition that a child
alleged to be delinquent is incompetent to participate in
further proceedings by reason of mental illness or intellectual
disability to a degree rendering the child subject to
involuntary commitment to the Wyoming state hospital or the
Wyoming life resource center, the court shall hold further
proceedings under this act in abeyance. The district attorney
shall then commence proceedings in the district court for
commitment of the child to the appropriate institution as
provided by law.

(d) The juvenile court shall retain jurisdiction of the child
. . . pending final determination of the commitment
proceedings in the district court. If proceedings in the district
court commit the child to [a] facility or institution for
treatment and care of people with a mental illness or an
intellectual disability, the petition shall be dismissed and
further proceedings under this act terminate. If proceedings
in the district court determine the child does not have a
mental illness or an intellectual disability to a degree


                               8
              rendering him subject to involuntary commitment, the court
              shall proceed to a final adjudication of the petition and
              disposition of the child under the provisions of this act.

The juvenile court ordered SWM to be examined and, as noted above, asked the
psychologist to evaluate SWM under both Wyo. Stat. Ann. § 14-6-219 and Wyo. Stat.
Ann. § 7-11-303. With regard to the first statute, the report concluded that SWM “is not
‘suffering from mental illness or intellectual disability to a degree rendering [him] subject
to involuntary commitment’ and would, therefore, be deemed competent to proceed in
juvenile court.” With regard to Wyo. Stat. Ann. § 7-11-303, the report also concluded
that

              it can be stated with a reasonable degree of psychological
              certainty that [SWM] does not have sufficient present
              capacity to comprehend his position, to understand the nature
              and object of the proceedings against him, to conduct his
              defense in a rational manner, and to cooperate with counsel to
              the end that any available defense may be interposed in adult
              criminal court.

[¶19] The State filed a motion seeking to strike those portions of the evaluation report
dealing with SWM’s competence to proceed under Wyo. Stat. Ann. § 7-11-303. It
asserted that proceedings in juvenile court are not criminal in nature, and the competency
standards of the criminal code do not apply. SWM opposed the motion, arguing that
because “the Juvenile Justice Act is silent on what constitutes competency in juvenile
court, Wyoming Statute § 7-11-303 is the proper statute to govern the inquiry into what is
competency to proceed.” He further asserted that “The Wyoming Rules of Criminal
Procedure apply to delinquency proceedings unless inconsistent with the Juvenile Justice
Act. W.R.Cr.P. 1(a),” quoting KC v. State, 2011 WY 108, ¶ 15, 257 P.3d 23, 27 (Wyo.
2011).

[¶20] The juvenile court declined to strike any portion of the psychologist’s report, but
did rule that it would disregard the conclusions relating to Wyo. Stat. Ann. § 7-11-303.
The court stressed the language of that statute providing that it “applies at any stage of a
criminal proceeding.” (Emphasis in original.) Because juvenile proceedings are not
criminal proceedings, the court ruled that Wyo. Stat. Ann. § 7-11-303 did not apply. In
addition, the juvenile court quoted from In re ALJ, 836 P.2d 307, 313 (Wyo. 1992):

              By enacting a juvenile code separate from the criminal code,
              Wyoming’s legislature has recognized that juveniles and
              adults are not similarly situated. Juvenile proceedings are
              designed to rehabilitate and protect the juvenile, not to punish
              him. These goals of rehabilitation and protection are


                                             9
             reflected throughout the juvenile code. Proceedings in
             juvenile court are equitable as opposed to being criminal.
             Juveniles are not convicted; they are merely adjudicated
             delinquents. By treating juveniles more gently than it treats
             adults, the legislature is compensating for juveniles’ inherent
             lack of experience and maturity.

Based on “the nature of juvenile proceedings (i.e. the fact they are special civil
proceedings and not criminal proceedings) and the stated goals of juvenile proceedings
(namely to provide treatment, training and rehabilitation for juvenile offenders),” the
juvenile court ruled that Wyo. Stat. Ann. § 7-11-303 “has no application in the case at
bar.” Following a hearing to determine SWM’s competency to proceed, the juvenile
court found “that the juvenile does not suffer from a mental illness or intellectual
disability to a degree [rendering] him subject to involuntary commitment at the Wyoming
State Hospital or Wyoming Life Resource Center and is competent to proceed.”

[¶21] The juvenile court’s perception of the nature and stated goals of juvenile
proceedings is certainly accurate. However, we note that treatment, training, and
rehabilitation of juvenile offenders occurs only if they are adjudicated delinquent. In the
case quoted by the court, we held that the juvenile court must have flexibility in
formulating the appropriate disposition, and that certain due process rights do not apply
in the dispositional phase of a juvenile proceeding. But we also noted the “difference
between the adjudicative and dispositional phases,” and recognized that “minors’
constitutional rights available in the adjudicatory stage are not necessarily applicable in
the dispositional stage.” In re ALJ, 836 P.2d at 311. SWM’s juvenile proceedings were
still in the adjudicative phase. As the District of Columbia Court of Appeals explained:

             The condition precedent for the court’s ordering of a
             rehabilitative disposition in a juvenile delinquency
             proceeding is a factual determination that the juvenile has
             violated a provision of the criminal law. Even if all parties to
             a juvenile delinquency proceeding share the goal of finding a
             disposition in the child’s best interests, and the proceedings
             may be less adversarial than adult prosecution,
             such proceedings clearly present an opportunity for factual
             disputes. . . . While counsel as well as a guardian ad litem are
             available to juvenile delinquents, as they were to appellant,
             both are limited in their ability to prepare a defense by the
             juvenile’s k n o w l e d g e , u n d e r s t a n d i n g , a n d a b i l i t y t o
             reconstruct and communicate the facts. . . . Consequently, we
             find no inconsistency between the goals of the juvenile justice
             system, as reflected in our statutory scheme, and the basic
             principle that the accuracy of the factfinding determination –


                                                    10
             and the accused’s own minimal contribution thereto – is part
             of the fundamental fairness inherent in due process.

In re W.A.F., 573 A.2d 1264, 1267 (D.C. 1990) (internal footnote and citations omitted).
We, too, find no inconsistency between the goals of the Wyoming Juvenile Justice Act
and the right of a juvenile to proceed to adjudication only if he is competent.

[¶22] On appeal, SWM maintains that the Juvenile Justice Act does not define the term
“competent to participate in further proceedings,” and provides no standards, factors, or
requirements for the juvenile court to consider in determining competence. To fill that
gap, SWM contends that the juvenile court should adopt the standards and requirements
for determining competency in criminal court. Wyo. Stat. Ann. § 7-11-303(c)(iii)
indicates that the test is:

             whether the accused, as a result of mental illness or
             deficiency, lacks capacity to comprehend his position, to
             understand the nature and object of the proceedings against
             him, to conduct his defense in a rational manner, and to
             cooperate with his counsel to the end that any available
             defense may be interposed.

In addition, we note that Wyo. Stat. Ann. § 7-11-302 provides that:

             (a)    No person shall be tried, sentenced or punished for the
             commission of an offense while, as a result of mental illness
             or deficiency, he lacks the capacity, to:

                    (i)     Comprehend his position;

                    (ii)  Understand the nature and object of the
                    proceedings against him;

                    (iii)   Conduct his defense in a rational manner; and

                    (iv) Cooperate with his counsel to the end that any
                    available defense may be interposed.

[¶23] The State continues to assert that Wyo. Stat. Ann. §§ 7-11-302 and -303 cannot
apply because they are meant to govern criminal proceedings, and juvenile court is not
criminal court. The State asserts that the proper standards are found in Wyo. Stat. Ann.
§ 14-6-219(b):




                                           11
                if it appears to the court from the mental examination that the
                child is competent to participate in further proceedings and is
                not suffering from mental illness or intellectual disability to a
                degree rendering the child subject to involuntary commitment
                to the Wyoming state hospital or the Wyoming life resource
                center, the court shall order the child returned to the court
                without delay.

Below, the State contended that, under Section (b), there are only two possibilities: either
the child is “competent to participate in further proceedings,” or he is “suffering from
mental illness or intellectual disability to a degree rendering the child subject to
involuntary commitment.” Because it is undisputed that SWM is not subject to
involuntary commitment, the State asserted that he is competent to proceed to
adjudication. The State’s position was clearly reflected in the psychologist’s report,
which concluded that SWM, “a child alleged to be delinquent, is not ‘suffering from
mental illness or intellectual disability to a degree rendering [him] subject to involuntary
commitment’ and would, therefore, be deemed competent to proceed in juvenile court.”
It appears from the transcript of the competency hearing that this was also the standard
applied by the juvenile court. The State appears to have changed its position in this
appeal, recognizing that the statute requires the juvenile court to decide “two questions:
whether SWM was competent to participate in further proceedings; and whether he
suffered from a mental illness or intellectual disability so serious as to subject him to
involuntary commitment.”

[¶24] We agree with the State’s position on appeal that the two are separate questions.
The juvenile court is not required to find either that a juvenile is competent to proceed or
that he is subject to involuntary commitment. It might also find that a juvenile is not so
severely mentally ill or intellectually disabled as to require involuntary commitment, but
still not competent to proceed with adjudication. However, the chief problem with the
State’s position is that it offers no guidance for the juvenile court to use in determining
whether a juvenile is competent to proceed with adjudication.2 Juvenile courts cannot be
expected to make competency determinations without any standards. As we said in
Follett, ¶ 8, 132 P.3d at 1158, a defendant is competent if he has sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding, and a


2
  An additional problem with the State’s position is that Wyo. Stat. Ann. § 14-6-219(b) does not actually
apply to SWM. Section (b) applies only if a child has been committed to a medical facility or institution
for mental examination. SWM was examined as an out-patient. Further, sections (c) and (d) apply only
to children subject to involuntary commitment, and it is undisputed that SWM is not. The statute does not
specify how to deal with a child examined as an out-patient who may be incompetent to participate in
further proceedings, but not to a degree rendering him subject to involuntary commitment.




                                                  12
rational as well as factual understanding of the proceedings against him. Unless a
juvenile court considers these basic components of competence – a juvenile’s capacities
to comprehend his position, understand the proceedings, conduct a rational defense, and
cooperate with counsel – then there is insufficient protection of a juvenile’s due process
right not to face adjudication unless competent.

[¶25] Contrary to the State’s argument, we conclude that Wyo. Stat. Ann. § 7-11-302
and to some extent Wyo. Stat. Ann. § 7-11-303, should be applied in juvenile court.
W.R.Cr.P. 1(a) provides that, “When not inconsistent with the Juvenile Court Act, these
rules shall also apply in delinquency proceedings.” W.R.Cr.P. 54(b) echoes this
provision: “Unless inconsistent with the Juvenile Court Act these rules shall apply in all
juvenile cases involving allegations that a child is in need of supervision or delinquent.”
With specific regard to competency, W.R.Cr.P. 12(c) provides:

              If it appears at any stage of a criminal proceeding by motion
              or upon the court’s own motion, that there is reasonable
              cause to believe that the defendant has a mental illness or
              deficiency making the defendant unfit to proceed, all further
              proceedings shall be suspended and an examination ordered
              as required by W.S. 7-11-301, et seq.

W.R.Cr.P. 12(c) is not inconsistent with the Juvenile Justice Act. To the contrary, it is
quite similar to Wyo. Stat. Ann. § 14-6-219(a) in providing that a mental examination
may be ordered. W.R.Cr.P. 12(c) is therefore applicable in juvenile proceedings, and it
expressly incorporates Wyo. Stat. Ann. §§ 7-11-302 and -303.

[¶26] We also find nothing in Wyo. Stat. Ann. § 7-11-302 that is inconsistent with the
Juvenile Justice Act. In setting forth the basic components of competence – capacities to
comprehend his position, understand the proceedings, conduct a rational defense, and
cooperate with counsel – this statute is entirely consistent with the Juvenile Justice Act’s
stated purpose of ensuring parties that “their constitutional and other legal rights [are]
recognized and enforced.” Wyo. Stat. Ann. § 14-6-201(c)(vi). We note that some of the
procedural aspects of Wyo. Stat. Ann. § 7-11-303 may be inconsistent with the Juvenile
Justice Act. For example, Wyo. Stat. Ann. § 7-11-303(b) provides that if a person is
committed for evaluation, “the commitment shall continue no longer than a thirty (30)
day period.” In the Juvenile Justice Act, Wyo. Stat. Ann. § 14-6-219(a) limits
commitment for examination to fifteen days. The inconsistent procedural provisions of
Wyo. Stat. Ann. § 7-11-303 may not apply in juvenile court, but the basic standards for
determining competency as set forth in Wyo. Stat. Ann. §§ 7-11-302 and -303 do apply.

[¶27] Other states faced with an absence of explicit standards for juvenile competency
have reached this same conclusion. For example, the Ohio Court of Appeals recognized
that, while state statutes provided “the standard by which an adult defendant may


                                            13
overcome the presumption of competency, no such statutory standard exists for
juveniles.” In re Johnson, 1983 Ohio App. LEXIS 14017, *12-13 (Ohio App. 1983).
Accordingly, it adopted the adult competency standard for use in juvenile court. As the
Arizona Supreme Court said in Dandoy, 619 P.2d at 15, “It appears that the
determination of mental competency of a juvenile for trial is one of those instances where
the procedure followed in adult prosecution must be applied to juvenile cases.”

[¶28] The State argues against applying the standards of competency for criminal
defendants in juvenile proceedings on the basis that, “It stands to reason, of course, that
even a normal juvenile often will not have the same ‘rational’ understanding of the
proceedings as an adult would, nor be able to consult with his lawyer with the same
understanding.” In re W.A.F., 573 A.2d at 1268 n.1 (Farrell, J., concurring). Several
decisions from other states, cited above, expressed this same concern. For example, in In
re Carey, 615 N.W.2d at 748, the court concluded that, “in the absence of other
applicable rules or statutes,” the standards for determining the competency of a criminal
defendant “should be used to assure that the due process rights of a juvenile are
protected.” It continued:

             In reaching this conclusion, however, we further note that it is
             possible that a juvenile, merely because of youthfulness,
             would be unable to understand the proceedings with the same
             degree of comprehension an adult would. Causey, supra at
             476. See Grisso, The Competence of Adolescents as Trial
             Defendants, 3 P s y c h , P u b P o l’y & L 3 , 1 4 ( 1 9 9 7 ) .
             Accordingly, we further hold that, in juvenile competency
             hearings, competency evaluations should be made in light of
             juvenile, rather than adult, norms. Williams, supra at 242. A
             juvenile need not be found incompetent just because, under
             adult standards, the juvenile would be found incompetent to
             stand trial in a criminal proceeding.

Id. See also In re Bailey, ¶ 11, 782 N.E.2d at 1179 (The competency standard for
criminal defendants also “governs the competency evaluations of juveniles, so long as it
is applied in light of juvenile rather than adult norms.”); In re J.M., 769 A.2d 656, 662
(Vt. 2001); State in Interest of Causey, 363 So.2d 472, 476 (La. 1978); Golden v. State,
21 S.W.3d 801, 803 (Ark. 2000).

[¶29] This approach is consistent with our previous discussions of the rights of
juveniles. In several cases considering the admissibility of custodial statements by
minors, we have said that the test of admissibility is the same for minors as for adults:
whether, under the totality of the circumstances at the time, the statement was given
voluntarily, knowingly, and intelligently. Jahnke v. State, 692 P.2d 911, 923 (Wyo.
1984), citing Mayer v. State, 618 P.2d 127 (Wyo. 1980); Mullin v. State, 505 P.2d 305


                                            14
(Wyo. 1973), cert. denied, 414 U.S. 940, 94 S.Ct. 245, 38 L.Ed.2d 166 (1973); Jarrett v.
State, 500 P.2d 1027 (Wyo. 1972); and Mortimore v. State, 24 Wyo. 452, 161 P. 766
(1916). However, as we further explained,

              In these cases we have held that the fact that the individual
              being questioned is a juvenile is simply a factor to be
              considered in the totality of the circumstances in order to
              determine whether the waiver was efficacious. This view is
              consistent with that espoused in Fare v. Michael C., 442 U.S.
              707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197, reh. denied 444
              U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979), in which the
              Supreme Court of the United States said:

                     This totality-of-the circumstances approach is adequate
                     to determine whether there has been a waiver even
                     where interrogation of juveniles is involved. We
                     discern no persuasive reasons why any other approach
                     is required where the question is whether a juvenile
                     has waived his rights, as opposed to whether an adult
                     has done so. The totality approach permits – indeed,
                     it mandates – inquiry into all the circumstances
                     surrounding the interrogation.           Th i s i n c ludes
                     evaluation of the juvenile’s age, experience, education,
                     background, and intelligence, and into whether he has
                     the capacity to understand the warnings given him, the
                     nature of his Fifth Amendment rights, and the
                     consequences of waiving those rights.

Jahnke, 692 P.2d at 923 (quotation marks omitted). Similarly, when evaluating the
competency of a child in juvenile proceedings, it is appropriate to consider “the juvenile’s
age, experience, education, background, and intelligence, and . . . capacity to
understand.” This approach is consistent with our prior observation that, “By treating
juveniles more gently than it treats adults, the legislature is compensating for juveniles’
inherent lack of experience and maturity.” In re ALJ, 836 P.2d at 313. Accordingly, we
hold that the statutory standards for determining the competency of a defendant to stand
trial, set forth in Wyo. Stat. Ann. §§ 7-11-302 and -303, are also the standards to use in
determining the competency of a child to participate in adjudication proceedings in
juvenile court, but those standards must be applied in light of juvenile norms rather than
adult norms.

[¶30] Although the juvenile court ordered a competency evaluation and ruled that SWM
was competent to proceed, it did not evaluate SWM under the correct standards. The
juvenile court explicitly declined to consider those standards set forth in Wyo. Stat. Ann.


                                             15
§§ 7-11-302 and -303. Because SWM was evaluated using incorrect standards, his due
process right not to proceed unless competent was not properly protected.

[¶31] We also note that the psychologist who evaluated SWM did not apply the proper
standards. The psychologist offered the opinion that SWM “appeared to be less familiar
with general legal terms and concepts than the average adult defendant.” Because SWM
was twelve at the time, he should not have been compared to the average adult defendant,
but to an average child of the same age. 3

[¶32] The decision of the juvenile court is reversed, and the case remanded for
proceedings consistent with this opinion.




3
  We also note that this due process right of competency is based on the “present” abilities of the person
being evaluated. Dusky, 362 U.S. at 402, 80 S.Ct. at 789. In SWM’s reevaluation, he must be compared
to the average youth of his age at the time of the reevaluation.




                                                   16
