Introduction

This original proceeding posed a novel and consequential question in Colorado juvenile competency law: may the Colorado Department of Human Services (CDHS or “Department”) conduct a restoration evaluation of a juvenile’s competency without first obtaining a court order under section 19-2.5-704(2)(c), C.R.S.? The juvenile, J.D., argued that the Children’s Code requires a court to authorize any restoration evaluation and that CDHS’s reevaluation of his competency—conducted mid-restoration and reported as “court-ordered”—was ultra vires and should be stricken. The People and the district court countered that monitoring, reassessing, and reporting on progress are inherent in “services necessary to competency restoration,” which the statute assigns to the Department to oversee and coordinate.

In a 4–2–1 split, the Colorado Supreme Court sided with the People and the district court. Reading the text of section 19-2.5-704(2) as a whole, the majority held that restoration evaluations fall within “services necessary to competency restoration” and that the Department therefore has authority to conduct such evaluations without a separate court order under subsection (2)(c). The Court discharged its rule to show cause, leaving intact the juvenile court’s finding that J.D. was restored to competency.

The decision clarifies operational control during juvenile competency restoration and will shape daily practice for courts, CDHS, defense counsel, and prosecutors across the state—especially the cadence of evaluations, the scope of court oversight, and the balance between efficiency and protections against potentially burdensome reexaminations.

Summary of the Opinion

The Court exercised original jurisdiction under C.A.R. 21 because an erroneous competency finding inflicts immediate, irreparable harm that cannot be remedied adequately on appeal, and because the question presented was one of first impression with statewide importance (citing Young v. Hodges and In re People in Interest of A.T.C.).

On the merits, the Court construed section 19-2.5-704, the post-initial-competency framework for juveniles found “incompetent but restorable.” Subsection (2)(b) assigns to CDHS “oversight of restoration education and coordination of services necessary to competency restoration.” Subsection (2)(c) authorizes the court (or a party) to trigger a court-ordered restoration evaluation when specific criteria are met (changed circumstances, inability to fairly determine restoration, and a balance favoring the evaluation’s cause over its negative impact and any delay).

Applying ordinary textual canons, the majority held that:

• “Services necessary to competency restoration” include reassessing a juvenile’s current competency status—i.e., a restoration evaluation—because effective oversight and coordination require continuous monitoring and adjustment of restoration efforts.
• The statutory definition of “restoration evaluation” in section 19-2.5-701.5(6) does not limit such evaluations to the two enumerated categories (“court-ordered” by the Department and “second evaluations”), because “includes” is a term of enlargement, not limitation.
• Other provisions reinforce this reading: section 19-2.5-704(2)(a) requires timely restoration services, which would be undermined by mandating a court order for each reassessment; section 19-2.5-705(1) requires a restoration hearing when a competency evaluator files a report certifying the juvenile is competent, suggesting that evaluators may file such reports without a prior court order.

Accordingly, the Department’s reevaluation of J.D. was authorized and properly considered by the juvenile court in finding restoration. The Court discharged the order to show cause.

Two separate writings sharpened the stakes:

• Concurring in the judgment (Berkenkotter, J.). The concurrence agreed with the dissent that the Department lacks authority to conduct restoration evaluations absent a court order. Nonetheless, it would not impose automatic exclusion as a remedy. Instead, when an evaluation occurs without an order, the juvenile court should apply the section 704(2)(c) balancing test after the fact and decide whether to strike or consider the evaluation.
• Dissent (Gabriel, J., joined by Hood, J.). The dissent read the statutes to reserve restoration evaluations to court-ordered proceedings, with “restoration services” distinct from “restoration evaluations.” It would have made the rule absolute and struck the unauthorized evaluation.

Analysis

A. Statutory Framework and the Majority’s Textual Holding

The juvenile competency framework in part 7 of article 2.5 of title 19 proceeds in the following sequence:

• Initial competency issue and evaluation. The court makes a preliminary finding and, if inadequate information exists, orders a competency evaluation addressing competence and restorability and recommending services (sections 19-2.5-703(1) and 703(4)(c)).
• Incompetent but restorable. If so found, the court stays proceedings, orders services “designed to restore the juvenile to competency,” and holds periodic progress review hearings (section 19-2.5-704(2)(a)).
• Department’s role. CDHS is responsible for “oversight of restoration education and coordination of services necessary to competency restoration” (section 19-2.5-704(2)(b); see also section 27-60-105(2)).
• Restoration evaluation. The court or a party may raise the need for a restoration evaluation; the court “shall” order one only if it finds changed circumstances, uncertainty about restoration, and a favorable balance of cause versus negative impact and delay (section 19-2.5-704(2)(c)).
• Restoration hearing. The court may determine restoration during review hearings or must hold a hearing when a competency evaluator files a report certifying competency (section 19-2.5-705(1)).

Against this backdrop, the key interpretive move is the majority’s conclusion that “services necessary to competency restoration” under section 704(2)(b) necessarily include restoration evaluations. The Court reasons that to oversee and coordinate effective restoration—especially where competency is dynamic—CDHS must be able to reassess progress and current status. It characterizes a restoration evaluation as both a clinical tool and a case-management component of the restoration regime (citing Zapata v. People on the diagnostic-treatment duality).

The majority also neutralizes an apparent textual tension. Section 701.5(6) defines “restoration evaluation” and notes that such evaluations “include both court-ordered evaluations by the department and second evaluations.” The majority treats “includes” as non-exhaustive (citing Lyman v. Town of Bow Mar and Preston v. Dupont), so this clause does not foreclose Department-initiated evaluations without a court order. And section 705(1)’s mandatory hearing when a report certifying competency is filed would be senseless if each such report required a prior order authorizing the evaluation that produced it.

B. Precedents and Prior Authorities Shaping the Decision

• Original Jurisdiction Cases. Young v. Hodges and In re People in Interest of A.T.C. support using C.A.R. 21 where juveniles risk being forced to proceed while incompetent and appellate review is inadequate. The Court invokes these to reach the merits promptly.
• Statutory-interpretation Canon Cases. People v. Iannicelli, Carrera v. People, and Martinez v. People establish the Court’s de novo, plain-meaning approach and avoidance of absurd results; these frame the interpretive method used to fold evaluations into “restoration services.”
• Zapata v. People. The majority cites Zapata for the proposition that competency-related evaluations serve both diagnostic and treatment goals, bolstering the notion that reassessing competency is part and parcel of treatment/restoration services.
• People in Interest of A.C. (2022 CO 49) and People in Interest of B.B.A.M. (2019 CO 103). These cases inform the separate opinions more than the majority. A.C. emphasized active judicial management of competency and recognized that restoration can sometimes be established through educational progress rather than medical opinion alone. B.B.A.M. and concurrences in A.C. catalyzed the 2023 legislative amendments that codified the restoration-evaluation balancing test in section 704(2)(c). The dissent and concurrence lean on this history and structure to argue for court-ordered gatekeeping of restoration evaluations.
• Section 27-60-105(2). The cross-reference states CDHS provides and coordinates “competency restoration education services” and “competency restoration services ordered by the court.” The dissent uses this to argue that the Department’s role remains tethered to court orders; the majority reads 704(2)(b) as broader and controlling for juveniles, encompassing the act of reevaluating as part of coordination.

C. The Competing Readings: Majority vs. Concurrence and Dissent

Majority’s throughline. The statutory scheme allocates ongoing restoration oversight to CDHS. To do that job, the Department must be able to reassess competency during restoration without seeking court leave each time, especially to comply with the statute’s “timely” services directive and to equip courts with up-to-date information for progress reviews and restoration hearings.

Concurrence’s critique (authority) and remedial middle path. Justice Berkenkotter (concurring in the judgment) agrees with the dissent that the plain text distinguishes “restoration evaluation” (a defined, court-ordered diagnostic report) from “restoration services” (the treatment and education provided to the juvenile). She emphasizes the 2023 amendments’ guardrails—an express balancing test requiring case-specific consideration of negative impacts—suggesting the legislature envisioned court control over if and when to reevaluate. Nevertheless, she would not impose automatic exclusion when an evaluation occurs without an order. Instead, she proposes a post hoc application of the balancing test: if the court concludes it would have authorized the evaluation, the report stands; otherwise, it should be stricken.

Dissent’s structural argument and remedy. Justice Gabriel, joined by Justice Hood, takes a strict textual and structural view: (1) the Children’s Code repeatedly reserves to courts the authority to order evaluations and to direct how they are conducted; (2) “restoration services” are treatment and education delivered to the juvenile, not diagnostic reports for the court; and (3) section 701.5(6)’s definition of restoration evaluation, reinforced by section 707’s references to “court-ordered” evaluations, presupposes a court order for Department-performed restoration evaluations. On remedy, the dissent would strike the unauthorized evaluation to vindicate the juvenile’s statutory right not to be evaluated absent the balancing-test findings, noting that the harm of an unconsented evaluation cannot be undone and that procedural protections (caregiver presence, counsel consultation, the right to decline to participate) were bypassed.

D. Why the Majority’s Reading Prevailed

The decisive factor is the majority’s embrace of ordinary-meaning, whole-statute construction: “oversight” and “coordination” of “services necessary to competency restoration” pragmatically include reassessing competency. The Court then reconciles perceived conflicts: the non-exhaustive “includes” in the definition of restoration evaluation; the statutory emphasis on timely services; and the hearing-trigger mechanism that anticipates evaluator reports without specifying prior court-authorization. In short, the majority privileges operational coherence and timeliness over rigid gatekeeping.

E. Anticipated Impact

Immediate operational effects.

• CDHS may initiate and complete restoration evaluations during restoration without seeking a separate court order under section 704(2)(c).
• Courts can expect more Department-initiated reevaluations timed to clinical and educational milestones, potentially accelerating decisions on restoration and recommencement of proceedings.
• Parties should prepare for restoration hearings triggered by evaluator reports certifying competence under section 705(1), even when no motion for a court-ordered evaluation was filed.

Guardrails and litigation hotspots.

• Defense counsel will likely test the scope of the holding by seeking protective orders limiting the frequency and manner of Department-initiated reevaluations, invoking the court’s inherent case-management authority and the statutory “least restrictive environment” and periodic-review mandates.
• Expect motions to enforce procedural protections during Department-initiated evaluations (notice, caregiver presence, counsel consultation, and the juvenile’s right to decline the interview), drawing on the dissent and concurrence’s emphasis on individualized harms.
• Requests for “second evaluations” under section 701.5(9) may increase as a counterweight to Department-initiated reports certifying restoration.

Policy and legislative implications.

• The concurrence and dissent expressly worry that the majority’s reading dilutes the 2023 “balancing test” guardrails. Stakeholders may revisit whether further legislative clarification is desirable to calibrate court oversight against the Department’s practical need to monitor progress.
• CDHS may formalize internal policies to ensure case-by-case sensitivity to potential negative impacts of repeated evaluations, even though not legally required by 704(2)(c) under the majority’s rule.

Bottom line. The controlling rule now permits Department-initiated restoration evaluations as part of restoration services. Courts retain robust oversight at restoration-progress hearings and must convene a restoration hearing when an evaluator certifies competency. But the distinct, court-ordered pathway in 704(2)(c) remains available when a party seeks to compel an evaluation and to ensure express balancing of potential harms.

Complex Concepts Simplified

• Competency to proceed (juvenile). A juvenile must have a rational and factual understanding of the proceedings and the present ability to consult with counsel with a reasonable degree of rational understanding. If incompetent, the juvenile cannot be tried or sentenced.
• Restoration services. Education and treatment interventions designed to restore competency (e.g., legal-system education, psychiatric care, therapy, medication management), implemented under CDHS oversight.
• Restoration evaluation. A structured reassessment by a competency evaluator to determine whether the juvenile has become competent or is likely to be restored in the reasonably foreseeable future. Under this decision, CDHS may conduct such evaluations without a court order; alternatively, any party may seek a court-ordered evaluation under 704(2)(c), which requires specific findings.
• Second evaluation. A defense-requested evaluation by an evaluator not employed by, directed by, or paid by the Department. It functions as an independent check on Department conclusions.
• Restoration progress review hearing. Periodic judicial check-ins (every 35 days if in custody, every 90 days if not) to monitor provision of services, the juvenile’s participation, and progress toward competence.
• Mandatory restoration hearing. If a competency evaluator files a report certifying the juvenile is competent, the court must hold a hearing on restoration (section 705(1)).
• C.A.R. 21 original jurisdiction. An extraordinary remedy allowing the Supreme Court to resolve important legal questions when no adequate appellate remedy exists, typically to prevent irreparable harm (e.g., forcing an incompetent juvenile to proceed).
• “Discharging the rule to show cause.” The Supreme Court’s resolution denying the requested extraordinary relief and leaving the lower court’s action intact.

Practice Guidance and Takeaways

For Juvenile Courts

• Recognize that Department-initiated restoration evaluations may arrive without a 704(2)(c) order. Ensure procedural protections (notice to counsel/caregivers and opportunity to be present) are honored as a matter of case management and due process, even if not mandated by 704(2)(c).
• When a Department report certifies competence, promptly set the mandatory restoration hearing under section 705(1) and invite timely requests for second evaluations.
• Use periodic review hearings to calibrate frequency and timing of any further evaluations, mitigating unnecessary repetition and potential harms highlighted by the concurrence and dissent.

For the Department of Human Services

• Implement written protocols for Department-initiated restoration evaluations that ensure: notice to counsel and caregivers, opportunity for caregiver presence, advisements regarding participation, and respectful accommodation of the juvenile’s needs.
• Document clinical/educational reasons for each reevaluation and its timing to support transparency at review hearings.
• Coordinate with court liaisons so that courts are apprised in advance when feasible, even though a court order is not required.

For Defense Counsel

• Upon receipt of a Department-initiated evaluation, consider: requesting a second evaluation under section 701.5(9); seeking a restoration hearing and preserving objections to procedures used during the evaluation; proposing protective orders governing frequency, timing, and conditions of further evaluations.
• At review and restoration hearings, marshal treatment records, educational progress, and any counter-expert opinions to contest restoration when appropriate (see A.C.).

For Prosecutors

• Leverage the majority’s holding to ensure timely progress checks while remaining sensitive to procedural safeguards and potential negative impacts on juveniles.
• Where appropriate, oppose exclusion of Department-initiated evaluations by emphasizing the statutory obligation for timely services and the hearing mechanism under section 705(1).

Open Questions and Future Litigation

• Frequency limits. How often may CDHS reevaluate without a court order before court intervention is warranted to prevent undue burden? Expect case-by-case management.
• Procedural protections. Although not tied to 704(2)(c), what minimum notice and participation rights attach to Department-initiated evaluations? Courts may formalize expectations via standing orders.
• Remedial framework. If a Department-initiated evaluation is conducted under problematic circumstances, will courts adopt Justice Berkenkotter’s post hoc balancing test to determine whether to strike or consider the report?
• Legislative response. Given the concurrence and dissent’s emphasis on the 2023 guardrails, the General Assembly may revisit the scope of Department authority or codify procedural safeguards for Department-initiated evaluations.

Conclusion

J.D. establishes a clear, statewide rule: restoration evaluations are within the “services necessary to competency restoration” that CDHS oversees and coordinates, and the Department may therefore conduct such evaluations without first obtaining a court order under section 19-2.5-704(2)(c). This holding prioritizes operational timeliness and equips courts with current clinical and educational data during restoration, while leaving intact the separate, court-ordered evaluation pathway—and its balancing test—when a party seeks to compel an evaluation.

The concurrence and dissent warn that the majority’s approach risks eroding legislative guardrails designed to protect juveniles from potentially invasive or repetitive evaluations. Their concerns will likely shift the battleground to trial-level procedural protections, second-evaluation rights, and judicial case management at periodic review and restoration hearings.

In the broader legal context, J.D. supplies needed clarity on who may reassess juveniles mid-restoration and how those assessments integrate into judicial decision-making. Practitioners should recalibrate strategies accordingly: CDHS should operationalize humane, transparent reevaluation protocols; defense counsel should be ready to contest process and substance with counter-evaluations; and courts should actively manage frequency and fairness while observing statutory mandates for timely restoration and mandatory hearings upon certification. The decision thus resets the equilibrium between administrative efficiency and juvenile-protective oversight in Colorado’s competency restoration landscape.