STATE OF NEW JERSEY IN THE INTEREST OF E.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6681-04T46681-04T4

STATE OF NEW JERSEY IN

THE INTEREST OF E.C.,

Juvenile-Appellant

______________________________

 

Submitted December 21, 2005 - Decided January 19, 2006

Before Judges Grall and Kimmelman.

On appeal from Superior Court of New

Jersey, Chancery Division, Passaic County,

Docket Nos. FJ-2526-05 and FJ-1285-05.

Yvonne Smith Segars, Public Defender,

attorney for appellant E.C. (Lon Taylor,

Assistant Deputy Public Defender, of counsel

and on the brief).

James F. Avigliano, Passaic County

Prosecutor, attorney for respondent State

of New Jersey (Christopher W. Hsieh,

Senior Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

E.C. was adjudicated delinquent based upon his plea of guilty to a charge of conduct that would constitute possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3), if committed by an adult. After a dispositional hearing pursuant to N.J.S.A. 2A:4A-43 and N.J.S.A. 2A:4A-44, the judge ordered E.C. to serve one year of incarceration in Jamesburg. E.C. appeals that disposition following the denial of a motion for reconsideration and a motion for stay. This court declined to hear E.C.'s application for emergent relief but considered his appeal on an expedited basis.

E.C. contends that the disposition is illegal because he is developmentally disabled within the meaning of N.J.S.A. 30:6D-3 and his incarceration is barred by N.J.S.A. 2A:4A-44c(2). Because the family part judge carefully discharged his obligation to determine whether E.C. is developmentally disabled and reached a conclusion that is supported by the record, we affirm.

On March 26, 2005, E.C. was apprehended in possession of ten glassine bags that contained crack cocaine. On May 27, 2005, he entered a plea of guilty to one of three charges included in a juvenile delinquency complaint, all of which were based on his possession of crack cocaine on March 26, 2005. E.C. was seventeen years old at the time of his plea.

At the dispositional hearing on June 22, 2005, the judge learned that the Juvenile Justice Commission (JJC) had referred E.C. to the Division of Developmental Disabilities (DDD) during a prior incarceration and the DDD had concluded that E.C. was eligible for its services. For that reason, he suspended that hearing and referred E.C. to the DDD for a full evaluation.

The dispositional hearing was rescheduled for July 25, 2005. DDD provided incomplete records. The judge again adjourned the hearing until August 4, 2005.

The following evidence was produced on August 4. E.C. was referred to DDD by the JJC. On January 4, 2004, DDD's "Intake Eligibility Team" determined that E.C. was eligible for services. By that time, however, E.C. had been paroled from the JJC and was again adjudicated delinquent on the basis of a new offense. The disposition ordered for that adjudication was a two-year term of probation.

A DDD case manager assigned to E.C. appeared at the August 4 dispositional hearing. In response to questioning by the judge, she acknowledged that during the eight months since E.C. had been determined eligible for services DDD had provided none. She explained, "Well, . . . I know that I was told that [the court] might have been looking for some sort of option for him, I don't know, maybe even in terms of placement."

A representative of the JJC advised the judge that DDD had a residential program with capacity to serve a limited number of juveniles who were adjudicated delinquent and eligible for its services. The DDD case manager told the judge she would make a referral if court ordered but could not "promise that there [were] any openings or if [DDD] would actually end up placing" E.C. in the residential facility. No other testimony was offered.

The judge received a report prepared by a psychiatrist, Dr. Gallina, based upon his neuropsychiatric evaluation of E.C. in February 2003. That evaluation was conducted at the request of the Child Study Team of E.C.'s school district because of E.C.'s behavioral difficulties. Dr. Gallina's diagnoses were: Oppositional Disorder (Axis I), marked by violations of rules, argumentativeness, provocative behavior in and outside of the home and stubbornness; Diminished Adaptive Capacities Related to Oppositional Disorder (Axis II), marked by less seeking of challenges, imagination and adventure to learn, diminished aspiration, distorted peer relationships, diminished capacity to adapt for achievement of goals through planning, arranging, inventing, postponing gratification, modulating or discriminating, poor self-control, diminished ability to understand consequences of actions and poor ability to orient behavior to societal standards of the environment; Cognitive or Central Processing Difficulties (Axis III), evidenced by poor language skills, defective conceptual and symbolic thinking, affecting problem solving, abstraction ability and the understanding of some societal connections and audio-perceptual defects.

Dr. Gallina concluded that E.C. "may possess . . . an educationally handicapping condition" and was "classifiable . . . as Emotionally Disturbed." He recommended continued counseling and behavior modification but determined that neither medication nor further medical evaluation were warranted.

The judge received two reports prepared at the request of DDD by a licensed psychologist, Dr. Jain. In his first report, relying upon scores reported by psychologists who had tested E.C. in connection with his school and his classification as "emotionally disturbed," Dr. Jain recommended that DDD obtain information about E.C.'s "adaptive behaviors prior to making a determination of his eligibility for DDD services."

Dr. Jain's second report was based upon his testing of E.C., a clinical interview of E.C. and an interview of E.C.'s mother. He reported that E.C. was "functioning in the borderline range." His achievement test scores were at the second-grade level in reading, first-grade level in spelling and third-grade level in math. Tests of his adaptive behavior indicated overall "mild deficits": none in "daily living skills"; "moderate deficits" in communication "reflective of his difficulties in reading and writing"; and "mild deficits in his socialization domain." Dr. Jain concluded:

[T]his young man functions in the range of Mild Mental Retardation. His overall intellectual functioning as well as interest is very much affected by his level of motivation and mood. He is street smart and knows exactly what is expected of him to say in certain situations so he will not have to face the consequences of his actions. At this time, he seems to meet the criteria for DDD services as his functioning in both the cognitive and adaptive behavior is in the range of mild mental retardation. Lack of motivation to learn and use the opportunities provided to him, given his oppositional tendencies. [I]t is highly likely that [E.C.] would be difficult to place, rehabilitate, and benefit from the kind of services we provide to our population in general. The team would be so apprised.

Dr. Jain recommended a "vocational program which emphasizes skill building in terms of learning a trade."

The judge also received a report prepared by a DDD intake worker, Amruta H. More. That undated report apparently was prepared prior to Dr. Jain's second report because it does not include any reference to his findings or conclusions. The More report refers to testing results reported in E.C.'s school records and Dr. Gallina's diagnoses. It concludes, without further explanation, that the Intake Eligibility Team determined on January 4, 2005, that E.C. "is eligible for services from the Division." The services the team recommended were "Primary Case Management," "Family Support Services" and "Guardianship Referral."

E.C.'s DDD case manager also submitted a report. It included E.C.'s responses to questions which had been typed on a printed form, the case manager's plan to provide services through collaboration with the Child Study Team in E.C.'s school and a referral to the Division of Vocational Rehabilitation. According to the Pre-Disposition Report prepared for the judge's use at the dispositional hearing, E.C. had not attended school since the 2002-2003 school year.

After reviewing the reports described above and applying the statutory criteria defining the developmental disability that precludes incarceration of a juvenile adjudicated delinquent, the judge concluded that E.C. did not meet the criteria. That conclusion is amply supported by the record.

Following an adjudication of delinquency, "the family court has a nondelegable statutory duty to impose only a disposition that comports with the Juvenile Code . . . ." State in the Interest of R.M., 141 N.J. 434, 451 (1995). The Code "prohibits the incarceration of a juvenile who is developmentally disabled. N.J.S.A. 2A:4A-44c(2)." Id. at 439. The term "developmental disability" is defined as:

[A] severe, chronic disability of a person which:

(1) is attributable to a mental or physical impairment or combination of mental or physical impairments;

(2) is manifest before age 22;

(3) is likely to continue indefinitely;

(4) results in substantial functional limitations in three or more of the following areas of major life activity, that is, self-care, receptive and expressive language, learning, mobility, self-direction and capacity for independent living or economic self-sufficiency; and

(5) reflects the need for a combination and sequence of special inter-disciplinary or generic care, treatment or other services which are of lifelong or extended duration and are individually planned and coordinated. Developmental disability includes but is not limited to severe disabilities attributable to mental retardation, autism, cerebral palsy, epilepsy, spina-bifida and other neurological impairments where the above criteria are met . . . .

[N.J.S.A. 30:6D-3a]

The Supreme Court has held that "paragraphs (1), (4) and (5) . . . were intended to be used in the assessment of whether a juvenile is developmentally disabled within the meaning of N.J.S.A. 2A:4A-44c(2)." R.M., supra, 141 N.J. at 444-45. Judge De La Carrera found that the reports indicated E.C. suffered from mild retardation and emotional disturbance, not a "severe" disability. He further found that there was no evidence to support a finding of substantial functional limitations in three or more areas of major life activity as required by paragraph (4). He concluded that the only evidence of substantial functional impairment was related to learning. The reports described, which at most refer to mild deficits in areas other than learning, support the judge's conclusion. We add that none of the reports prepared by or at the direction of DDD relate E.C.'s mild retardation or his emotional disturbance to any "substantial functional limitation" unrelated to schoolwork.

E.C.'s argument that the judge failed to give "substantial weight" to the "determination" of the DDD as required by the Supreme Court's decision in R.M., supra, 141 N.J. at 452, is not supported by the record. We recognize that "[i]n order to reject the DDD's determination, the court must find by a preponderance of the evidence that the DDD's diagnosis was incorrect." Ibid. In this case, however, DDD did not present a determination that was consistent with the statutory criteria the judge was required to consider.

Consistent with the procedures outlined in R.M., when the judge was presented with evidence about developmental disability, he called for evaluations and reports. Id. at 451. Indeed, he did so on more than one occasion. The only evaluations the judge received were prepared by Drs. Gallina and Jain. Dr. Gallina's evaluation was rendered for a different purpose and did not address the statutory criteria. Dr. Jain, whose report is detailed above, found "mild deficits in [E.C.'s] adaptive behaviors" and concluded that it was "highly likely" that E.C. would not benefit from DDD's services. The intake team's conclusionary determination that E.C. was eligible for its services was made without the benefit of or reference to Dr. Jain's evaluation, which suggested only mild functional limitations.

 
We are satisfied that the judge gave the determination made by the intake team without the benefit of Dr. Jain's report all the deference it was due. We are further satisfied that Dr. Jain's report did not raise a factual question that required an evidentiary hearing.

Affirmed.

We note that on the day following the order of disposition, a representative of the Juvenile Justice Commission (JJC) wrote to the court liaison and advised that the sentence was illegal. The JJC did not request an opportunity to participate in this appeal.

(continued)

(continued)

10

A-6681-04T4

RECORD IMPOUNDED

January 19, 2006