The boy wore a red-and-black sweatshirt and red sneakers. Thirteen years old, he sat in the chair reserved for an adult defendant, the only child in the Portland courtroom.

Despite a judge’s order that he is not competent to stand trial, the boy is still detained at the Long Creek Youth Development Center in South Portland. His lawyer is asking one of the state’s top justices to find that detention illegal and release him.

A hearing on the issue Thursday pointed to the broader discussion about the future of Maine’s only youth prison and proposed reforms to the juvenile justice system in Maine.

“I recognize the gaps that currently exist in the juvenile statute,” said Justice Ellen Gorman of the Maine Supreme Judicial Court. “I would urge the legislative branch to take a look at this so the gap goes away.”

The boy has been identified only as A.I., and his record is not public because of his age. But defense attorney Sarah Branch said he has a history of detention at Long Creek starting when he was 11, and he has spent a combined eight months there out of the last 23. He has never been adjudicated, which is the juvenile equivalent of convicted. He has been found not competent to proceed four times in the last two years.

In this case, the boy has been at Long Creek since December. It is not clear what charges he is facing, but the only felony – assault on a police officer, a Class C crime – has been dismissed. Misdemeanor juvenile cases are confidential.

In April, a judge ruled he was not competent but could potentially stand trial in the future. He then ordered the state to treat his mental health and behavioral needs.

Branch said the services at Long Creek have not been adequate, and she filed a petition last month with the Maine Supreme Judicial Court for habeas corpus, or a request for the court to determine if his detention is legal. Those petitions go to a single justice for consideration, and Gorman heard those arguments Thursday at the Cumberland County Courthouse.

Branch asked the justice to immediately order the boy to a more appropriate location for treatment, either a residential program or his home. She argued his continued detention is cruel and unusual punishment, violates his constitutional right to due process and will have lasting negative effects.

“At some point, the court has to recognize that this is not right,” Branch said Thursday. “We need to fight for these kids. We need to give them more options.”

The state argued that the Maine Department of Corrections and Department of Health and Human Services have been working to find the right treatment option for the boy. He has been rejected by a number of private residential programs and in-home service providers in Maine, and the state is still waiting for a response from a private facility in New Hampshire.

Assistant Attorney General Donald Macomber said the law allows the state to detain the boy while officials work to find that right placement.

“As much as I’m very sympathetic to the arguments Ms. Branch just made, I think they are more appropriate to be made to the Legislature,” Macomber said.

State law outlines what happens to both adults and juveniles who are found incompetent to stand trial.

In an adult case, a judge can commit that person to the Department of Health and Human Services for treatment. Typically, that means he or she would be transferred to one of the state’s two psychiatric hospitals – Riverview Psychiatric Center in Augusta and Dorothea Dix Psychiatric Center in Bangor. If that person becomes competent, the criminal case proceeds.

In a juvenile case, however, a judge must also decide whether the child is likely to become competent in the future. If the ruling is no, the criminal case will be dismissed, and the youth could be referred or committed to the department for treatment. If the ruling is yes, the case is suspended. The youth is referred to the department for treatment and further evaluation in hopes of gaining competency.

Most juveniles in that second category can receive services at home. Others go to private residential treatment programs, which can remove or reject patients, unlike the state psychiatric hospitals. But Riverview and Dorothea Dix only accept adults, and the state does not have a comparable hospital for minors. So there are limited options if the court decides a youth needs a higher level of care or a secure facility, so those juveniles are sometimes kept at Long Creek.

Gorman asked for more details about the treatment being provided to the boy at Long Creek while he waits for a more appropriate placement. Witnesses at the hearing included Colin O’Neill, associate commissioner of juvenile services at the Department of Corrections; Todd Landry, the head of the Office of Child and Family Services in the Department of Health and Human Services; and an outside neuropsychologist who had evaluated the boy and made treatment recommendations.

The boy has been diagnosed with attention-deficit/hyperactivity disorder and other mental health conditions. While his treatment at Long Creek has generally included medication and hours of work with behavioral health technicians, the state officials testified that it has not changed at all since the judge’s order on competency.

“Would you agree with me that Long Creek is not a residential treatment program?” Branch asked Landry.

He agreed.

“So where he is is not therapeutic?” she asked.

“It is not the recommended treatment-level service based on the evaluation that I’ve seen,” he said.

The boy’s mother was also present at the hearing with her own attorney and an interpreter. She did not testify but made a statement that she would be supportive and cooperative with any services if the boy is allowed to return home.

Court documents show the mother filed a lawsuit that claims guards knocked out two of his teeth while he was detained there two years ago, which the state has denied. The American Civil Liberties Union of Maine is representing the mother in that case, which is pending in federal court.

Gorman said she would issue her decision within a week.

Before she stood to leave the courtroom, she looked directly at the silent boy in the red-and-black sweatshirt.

“Good luck,” Gorman said.

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