concurring:
Although the issue is not free from doubt, I agree with the court that the standard of competency set forth in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), applies in juvenile delinquency proceedings. The issue is not without doubt because the Supreme Court has implied that the effect upon liberty of conviction as an adult may be different from the effect of a delinquency adjudication, inasmuch as “juveniles, unlike adults, are always in some form of custody....” Scholl v. Martin, 467 U.S. 253, 265, 104 S.Ct. 2403, 2410, 81 L.Ed.2d 207 (1984). Nevertheless, our decisions have emphasized that it is a “criminal statute [that gives] rise to the [delinquency] proceeding and that a determination of guilt or innocence ends its fact-finding aspects.” District of Columbia v. M.A.C., 328 A.2d 375, 376 (D.C.1974); see also In re B.L.B., 432 A.2d 722, 723-24 (D.C.1981). Thus, it would take stronger indications than I can find by the Supreme Court to persuade me that In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), does not require the juvenile to be able to understand the proceedings against him and minimally assist in his own defense.1 Indeed, I am not convinced that a constitutional ruling is necessary on this point. By statute, D.C. Code § 16-2316(f) (1989), an accused in a delinquency proceeding has an unqualified right to be present at a factfinding hearing. To hold Dusky’s standard of competency inapplicable would be to say that the legislature meant this right to be strictly formal or symbolic, an implausible idea.
I understand Judge Wertheim’s concern that juveniles alleged to be delinquent not fall between the cracks — be incompetent to stand trial yet not committable, though possibly dangerous. The concern may be somewhat overstated, however. There are alternative procedures, viz., CINS (children in need of supervision) and neglect proceedings, which can lead to custodial treatment of juveniles who have committed antisocial and criminal acts. The court’s opinion rightly does not suggest whether Dusky *1269would apply to either of those proceedings; as to them the analysis might be very different. See In re B.L.B., supra, 432 A.2d at 724 (“as a general matter CINS petitions ... have not been deemed criminal by this court”). Indeed, I am disturbed by the apparent acquiescence of everyone below in the view that if W.A.F. cannot be dealt with as a delinquent, he cannot be treated (in custody) at all. If the allegations of the petition are true, W.A.F. appears to have been — at the time of filing — a neglected child “without proper parental care or control,” D.C.Code § 16-2301(9)(B) (emphasis added), though through no fault of his mother: his mental retardation made him the more or less unwitting instrument of drug dealers.2
Since I agree with the court that, whether as a statutory or constitutional matter, the Dusky test applies to delinquency proceedings, I join its opinion and the result.
. Dusky requires that the accused have "a rational as well as factual understanding of the proceedings against him.” 362 U.S. at 402, 80 S.Ct. at 788. 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.
. Though this was the government’s theory, it informed the trial court only — to quote its brief — that "a preliminary investigation conducted by the Department of Human Services showed that W. was not a neglected child.”