Capacity to Proceed: Which form do I use? What do I put on it? Where does it go? An on-the-ground guide to how to actually have your client assessed for capacity to proceed under the new law
- Eric Zogry
- a few seconds ago
- 6 min read
January 1, 2025, marked the implementation of the new juvenile capacity (and remediation) laws. Yet, here we are, over a year later, scratching our heads on how we’re actually supposed to get our clients evaluated. I wanted to share some thoughts to navigate this clear-as-mud terrain.
First – if you aren’t familiar with what the changes are, please take a moment to catch up on this. Check out these UNC School of Government blog posts for a thorough explanation:
New Law on Juvenile Capacity to Proceed (J. Greene, September 24, 2024)
Juvenile Remediation to Attain Capacity to Proceed: New NC Law (J. Greene, October 22, 2024)
New Juvenile Capacity Law: Court Forms and Forensic Evaluators (J. Greene, February 25, 2025)
Ok, now that we are on the same page as what the new law mandates, here is my shamelessly forward description of what the issue is: When the new law was passed, the legislation did not include funding for a “local” forensic evaluation, meaning that there is a statutory requirement of using a Qualified Forensic Evaluator (“QFE”), and that they receive a reasonable fee, without saying how they’re actually going to get paid for said services. In turn, AOC also has yet to create any kind of AOC form for payment for these QFE’s, because, again, there is no funding.
Insert confused expression here
Let’s back up a moment to review the evaluation options under the new law so that my suggested solution makes more sense.
Option 1: Ex Parte Requests
As defenders, we always have the option to ask for funds to privately retain a defense expert. We commonly refer to these as Ex Parte Requests (for Funds for xxxx). (Resource link here, including video explanation.) To that motion and order, you attach the AOC-G-309 form which allows your expert to be paid by IDS through the Indigent Defense Services budget as it is a defense motion for a defense expert. The expert can evaluate your client’s capacity and provide you with a report that only ends up in the hands of the prosecutor and/or judge if you decide it should. Our ability to ask for a defense expert – even for capacity – was in no way impacted or limited by the new legislation.
Options 2 & 3: “Local” and “State” Evaluations
The new legislation also does not change the two “levels” of evaluation generally available: a “local” evaluation, and a “state” level evaluation. (The legislation did change the qualifications, requirements, etc., within each of these so I’ll just stick with my generic labels of “local” and “state.”) Within these two levels, another aspect that did not change is that the “state” evaluations are only for felony level offenses.
So What’s the Problem?
The problem is that because the “local” evaluations under the new legislation are unfunded, there’s no real way to get the QFE’s paid, which may make experts unwilling to take these cases.
So What’s the Solution?
Spoiler alert: My proposed solution is relatively simple. Skip the “local” evaluation. Do not use the AOC-J-261, do not pass go, and do not collect $200 because there’s nowhere to collect it from. Instead, use either a defense expert (AOC-G-309) or go straight to the “state” evaluation (AOC-J-262). Those are the only two evaluation options for which there are funds.
If you go the defense expert route by way of the ex parte motion and the AOC-G-309, and your evaluator opines that your client is not capable of proceeding, then you can choose to present that report to the prosecutor. The prosecutor, may at that point, decide to just dismiss the case. If the prosecutor is opposed to dismissing the case, the ball is now in their court to (likely) ask for a “state” evaluation to see if there will be a battle of the experts, as well as possibly wanting to address remediation.
Alternatively, it may be so obvious that your client is incapable of proceeding that you are comfortable just going straight to that “state” evaluation. (Contact OJD for strategy discussions about this if you’d like!) In that case, use the AOC-G-260 and the AOC-G-262. You can see that item #3 on the AOC-G-262 reflects that you can skip the local evaluation if it is “more appropriate” to have the state level evaluation (and lack of funding makes it perfectly appropriate, I think!). Just remember that this is an option only if your client is charged with a felony level offense.
I understand that there is a proposed legislative fix that will solve this funding issue for the “local” evaluations. Until then, this is my proposed workaround.
Question: What if I already submitted a request for a local examination on the AOC-J-261 and submitted the AOC-G-309 to get that examiner paid?
Answer: IDS is going to politely reject/return that form. From State Juvenile Defender Eric Zogry in an email to the Juvenile Defense Listserv dated June 10, 2025: “Defenders should not submit form AOC-G-309 for these court ordered evaluations. That form is for defense experts only and is paid out of the PAC fund. Experts paid by IDS are for ex parte requests from the defense. These evaluations are meant to assist in the defense of a client and are in most situations confidential. Court ordered evaluations are not confidential, become a part of the court file and are not for a defense purpose.”
Question: What about the “DHHS list” I keep hearing about?
Answer: Yes, if for whatever reason you’re still going through the “local” evaluation process, those evaluations must be performed by a Qualified Forensic Examiner. (This is one of the significant changes from the old law). That list of QFE’s is here. While I maintain that an unfunded mandate makes this list unhelpful for “local” evaluations, it’s actually very helpful in identifying an expert to bring on board through an ex parte motion for a defense expert. (And guess what? I’m pretty sure the state level evaluation facilities (Central Regional Hospital, Cherry Hospital, and Broughton Hospital) are also using these same experts!)
Question: Ok, you’ve convinced me to skip the “local” evaluation, and it makes sense to just go straight to the state evaluation. What’s next?
Answer: The process is still generally the same as before:
1. There is a new AOC form to move the Court for the evaluation (the AOC-G-260) so fill that out and pre-fill the AOC-G-262 for the judge. Don’t be afraid to alter language on the form – for example, I don’t like the idea of DJJ transporting my kids and I change the language to let their parents transport them. (The statute is clear that applies only to kids in custody, but the form doesn’t, so I change it or strike it.)
2. Don’t forget to serve the prosecutor if you are the moving party.
3. The form then makes its way into the court file, and the judge reviews and signs.
4. The form and accompanying documents make their way to the facility. This detail has changed under the new law because of the AOC forms. It used to be that the moving party was tasked with sending the order and petitions, etc., to the facility. (It should be noted that this language was from the AOC form itself and not the statute!) While the new law still does not task any particular party with sending the forms, petitions, etc., the new AOC form does change from “moving party” as the sending entity to language that states “The Division of Juvenile Justice of the Department of Public Safety shall provide the Director of the State Facility with the juvenile’s charging document(s) and any local forensic report on the juvenile.” (Note: the AOC form is silent on who sends the motion/order!) Many jurisdictions have local rules or administrative orders to clarify this part of the process; see Wake County’s Administrative Order for an example. Just remember that the language on the AOC form is NOT binding authority until the judge signs it, and then it is!
Good luck, defenders, and keep fighting the good fight!
Burcu Hensley is a Wake County Assistant Public Defender and is certified in Juvenile Delinquency Law by the North Carolina State Bar. She would love to grab a cup of coffee with you and talk about all things juvenile justice (or Harry Potter): burcu.hensley2@nccourts.org