STATE OF NEW JERSEY IN THE INTEREST OF C.V

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5267-06T45267-06T4

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

________________________________

 

Argued: October 2, 2008 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FJ-05-694-07.

Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for appellant C.V. (Yvonne Smith Segars, Public Defender, attorney; Mr. Gautieri, of counsel and on the brief).

J. Vincent Molitor, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Robert L. Taylor, Cape May County Prosecutor, attorney; Mr. Molitor, of counsel and on the brief).

PER CURIAM

C.V., a juvenile, appeals from a final adjudication of delinquency entered on April 3, 2007, and from that portion of an order entered on May 7, 2007, denying her request for an additional credit of 144 days for time spent in two residential treatment facilities. Because C.V. has not alleged any error in the adjudication of delinquency, we address only the issue of her entitlement to the requested credit and affirm.

C.V., who was born on June 27, 1991, has an extensive juvenile record, which began in June 2004. She pled guilty to simple assault and fighting on May 11, 2005, when she was fourteen years old; she was placed on reporting probation for one year. At that time, she lived with her grandmother. On August 3, C.V. pled guilty to violating probation by absenting her home without permission for twenty-four hours, for violating curfew, and for disobeying household rules; she was referred to the Family Crisis Intervention Unit for possible shelter placement. C.V. was again charged with violating probation by disobeying household rules and on December 13 the Family Part judge remanded her to a shelter pending further review. She ran away from the shelter. Subsequently, C.V. was entered into the Intensive Supervision Program (ISP) and monitored with an electronic ankle bracelet.

On January 12, 2006, C.V. was charged with acts constituting aggravated assault, unlawful possession of a weapon, and possession of a weapon for unlawful purposes, and on January 17 pled guilty to unlawful possession of a weapon. At that time, the judge terminated her informal probation and placed her on formal reporting probation. The judge required ISP to provide a companion for C.V. and family therapy, and imposed various fines and penalties. On March 21, C.V. pled guilty to a violation of probation based on her failure to pay the fines and penalties; the judge imposed a 6:00 p.m. curfew, ISP for thirty days, and continued probation. Then on March 28, C.V. pled guilty to further probationary violations based on multiple curfew violations, a failure to attend school, and failure to pay fines and penalties; the judge continued her on ISP pending disposition of the guilty plea. The judge authorized probation to contact juvenile intake directly and arranged for her to go into detention if she violated her probation before the dispositional hearing the following week. C.V. violated her curfew and alcohol was found in her bedroom, but she was not taken to detention because she had just broken her hand rollerblading. On April 4, after reviewing the aggravating and mitigating factors, the judge sentenced her to sixty days in the Bridgeton Detention Facility and ordered Youth Case Management and the Division of Children's Behavioral Health to begin a search for an out-of-home placement. This proved to be only the beginning of C.V.'s 2006 involvement with juvenile justice.

As of August 1, 2006, C.V. had been accepted into a program called Youth Consultation Services (YCS), a one-year residential treatment center for girls in Atlantic City. With the agreement of the shelter from which she had previously run away, the judge remanded her to the shelter pending placement at the YCS with a review scheduled for August 15. A violation of probation was filed on August 4 because C.V. absconded from the shelter; C.V. pled guilty on August 15. The judge extended her probation to August 15, 2007, and as a condition required successful enrollment in, cooperation with, and completion of the YCS program. Her enrollment in the YCS was to begin on August 21, 2006. The judge also imposed a nine-month suspended sentence in the State Training School for Girls.

On September 5, 2006, another violation of probation was filed against C.V., who had been dismissed from the YCS program the day before. She was present in court and had self-inflicted cuts on her arm. The judge ordered YCS to provide records reflecting why C.V. had been dismissed from the program and directed Youth Case Management to search for alternative placements. He sent C.V. to Burdette Tomlin Memorial Hospital (now Cape Regional Medical Center) for a mental-health screening, and, barring psychiatric hospitaliza tion, remanded her to the Bridgeton Detention Facility. The violation of probation was heard on September 12. By then, YCS had indicated that they would take C.V. back with a warning that any further misconduct would result in an immediate transport to Bridgeton. C.V. pled guilty to the violation of probation and disposition was postponed pending a predisposition report or probation summary.

By October 3, 2006, when the matter was before the judge for a dispositional hearing, YCS had changed its mind about accepting C.V. back into its program. Burdette Tomlin Memorial Hospital had completed C.V.'s psychiatric evaluation and had placed her on Prozac. The judge also had a report from the Alternative Disposition Committee, which recommended that C.V. be given an opportunity for a different residential placement, although there were no available beds. The State argued that C.V. had an altercation with other girls at YCS and another with a pregnant staff member, who had filed charges against her in Atlantic County, and urged that the suspended sentence be imposed. C.V. had now turned fifteen and had been in juvenile justice for two years. The judge determined that it was appropriate to give C.V. another opportunity. He increased the suspended sentence to twelve months, which was conditioned on compliance with probation and cooperating with the residential placement. C.V. was retained in detention pending placement. The judge also placed C.V. in the custody of the Division of Youth and Family Services because C.V.'s grandmother was unable to control her.

C.V. was accepted into a residential placement at Vision Quest, but on February 6, 2007, the judge reviewed a report from Vision Quest stating that, although it was willing to continue to work with her, it wanted conditions imposed. Specifically, Vision Quest stated that running away would no longer be tolerated, C.V. was to keep her hands to herself, and that she was to stop her self-mutilating behaviors, which had resulted in hospitalization. Probation reported that there was a simple assault charge pending involving a staff member. The judge warned C.V. that any further infractions could well result in imposition of the suspended sentence. It did not take long for C.V. to trigger that result.

On March 6, 2007, C.V. appeared and pled guilty to her fifth violation of probation based on her discharge from the Vision Quest program as "unsuccessful." There were also two assault charges pending out of New Lisbon for her behavior at Vision Quest. Her attorney requested that disposition abide a predisposition report and a discharge summary from Kennedy Hospital, where C.V. had twice been treated while she as at Vision Quest. Youth Case Management indicated that it was willing to make a referral to a care management organization, but recommended that C.V. remain in a secure setting pending the referral. The State objected to any further placements. The judge scheduled disposition for March 27 and made a referral to the Juvenile Justice Commission (JJC). The judge refused to consider any further placements and requested that Probation secure the Kennedy Hospital discharge summaries and prepare a probation summary.

C.V. returned to court on April 3, 2007. By then, JJC had reported that a Fields program was not appropriate because of C.V.'s mental health needs. C.V. sought a credit of 276 days against her suspended one-year sentence for the 132 days she spent in detention and the 144 days she spent at YCS and Vision Quest, arguing that both were "secure facilities." The State objected to the latter credit. The judge carefully considered the aggravating and mitigating factors and C.V.'s history during her fifteen days at YCS: continual assaults on peers and staff, intimidation, verbal threats towards residential staff and her peers, opposition and defiance to program rules, and consistent runaway behaviors ranging from six to twelve hours at a time culminating in an assault on a staff member that required emergency medical treatment. As to Vision Quest, she absconded at least five times, had to be passively restrained on six occasions, and a staff member filed assault charges after C.V. assaulted her on January 18, 2007. Then on February 22, 2007, C.V. took out a sock filled with rocks and assaulted her peers. The judge concluded that the one-year sentence had to be imposed at that point, with 132-days credit for time spent in detention, but he denied credit with respect to the 144 days spent at YCS and Vision Quest without prejudice to a motion for reconsideration of sentence with any supporting brief respecting same.

Such a motion was timely filed and on May 7, 2007, the judge who had presided over all of C.V.'s court appearances, beginning with the appearance on December 13, 2005, issued a written decision on the question of law presented by C.V.'s request for credit for time spent in the two residential treatment programs. He considered our decision in State in re S.T., 273 N.J. Super. 436 (App. Div.), certif. denied, 138 N.J. 263 (1994), N.J.S.A. 2A:4A-38l and its legislative history, and A.O.C. Directive #8-04. He concluded that C.V. was not entitled to the disputed credit of 144 days, but corrected an error in the calculation of the time spent in detention, giving a total credit of 163 days. This appeal followed.

Because the issue presented is purely a question of law, we review the judge's decision de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). Needless to say, the issue is moot because C.V.'s sentence has long since been completed. This would normally be grounds for our sua sponte dismissal of the appeal pursuant to Rule 2:8-2. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 200 (2001); Del. Bay Waterman's Ass'n v. N.J. Dep't of Envtl. Prot., 153 N.J. 345, 351 (1998); In re Park-Madison Site, 372 N.J. Super. 544, 550 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005); Faulkner v. Faulkner, 361 N.J. Super. 158, 168 (App. Div.), certif. denied, 178 N.J. 28 (2003). However, we may nonetheless decide the issue where it presents a question of public importance or where it is likely to recur or both. Joye v. Hunterdon Cent. Reg'l High Sch. Bd. of Educ., 176 N.J. 568, 583 (2003); Clymer v. Summit Bancorp., 171 N.J. 57, 65-66 (2002); Libertarian Party of N.J. v. Murphy, 384 N.J. Super. 136, 140 (App. Div.), rev'd on other grounds, 188 N.J. 487 (2006) (summarily remanded for consideration of counsel fees); Sudersan v. Royal, 386 N.J. Super. 246, 251 (App. Div. 2005). Because the issue of credits is likely to recur and because it is of public importance in the administration of juvenile justice, we elect to decide the issue.

The New Jersey Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -48, governs juvenile adjudications and dispositions. Generally, a juvenile charged with an act of delinquency is released to a responsible person or agency pending disposition of the charge. N.J.S.A. 2A:4A-34a. Predispositional detention may only be ordered where detention is required to secure the presence of the juvenile at the next hearing or to protect persons or property from the juvenile. N.J.S.A. 2A:4A-34c(1)-(2). "'Detention' means the temporary care of juveniles in physically restricting facilities pending court disposition." N.J.S.A. 2A:4A-22c. In certain circumstances, a juvenile may be placed in a shelter or other nonsecure placement if efforts to locate a parent or guardian to accept custody of the juvenile have proved fruitless. N.J.S.A. 2A:4A-34c(3). "'Shelter care' means the temporary care of juveniles in facilities without physical restriction pending court disposition." N.J.S.A. 2A:4A-22d. The JJC specifies places for detention and the Department of Children and Families specifies shelters. N.J.S.A. 2A:4A-37a.

Upon detention, a Family Part judge must forthwith conduct a detention hearing to determine whether continued detention is required. N.J.S.A. 2A:4A-38a. Continued detention must be reviewed every twenty-one days. N.J.S.A. 2A:4A-38j. An adjudicatory hearing must be held no later than thirty days after the initial date of detention. N.J.S.A. 2A:4A-38k.

Once a juvenile has been adjudicated delinquent, the Family Part judge must generally enter a disposition within thirty days of the adjudication if the juvenile has been placed in detention or a shelter-care facility. N.J.S.A. 2A:4A-41. Otherwise, the disposition is to be entered within sixty days. Ibid.

At the dispositional hearing, the judge must consider eleven enumerated statutory factors in determining an appropriate disposition. N.J.S.A. 2A:4A-43a(1)-(11). The judge may order a custodial sentence or, among other things, place the juvenile on probation; place the juvenile under the care and responsibility of the Department of Children and Families for services; place the juvenile in a suitable residential or nonresidential program for the treatment of alcohol or narcotic abuse; place the juvenile under the custody of the JJC "for placement with any private group home or private residential facility with which the [JJC] has entered into a purchase of service contract"; order the juvenile to "satisfy any other conditions reasonably related to the rehabilitation of the juvenile"; and "[p]lace the juvenile, if eligible, in an appropriate juvenile offender program established pursuant to" the Juvenile Offender Rehabilitation Act, N.J.S.A. 30:8-61 to -69. N.J.S.A. 2A:4A-43b(3), (5), (14), (16)(b), (18), (20).

The judge may also, in certain circumstances, remand the juvenile to a certified county detention facility for up to sixty days. N.J.S.A. 2A:4A-43c(1). "When a juvenile has been adjudicated delinquent and is awaiting transfer to a dispositional alternative that does not involve a secure residential or out-of-home placement and continued detention is necessary, the juvenile shall be transferred to a non-secure facility." N.J.S.A. 2A:4A-38l. Here, both YCS and Vision Quest were secure residential placements and her detention pending placement was consistent with this statute.

If a custodial sentence is ordered, the judge is required to consider statutory aggravating and mitigating factors. N.J.S.A. 2A:4A-44a. The judge must "consider the juvenile's eligibility for release under the law governing parole." N.J.S.A. 2A:4A-44b(2). The judge is also required to impose "a term of post-incarceration supervision equivalent to one-third of the term of incarceration imposed," which begins after the release from incarceration or parole, whichever is later. N.J.S.A. 2A:4A-44d(5). The maximum term of a custodial sentence for a fourth-degree offense, as here, is one year. N.J.S.A. 2A:4A-44d(1)(f).

When a custodial sentence is imposed, "[a] juvenile shall receive credit on the term of the custodial sentence for any time served in detention or court-ordered shelter care between apprehension and disposition." R. 5:21-3(e); see Pressler, Current N.J. Court Rules, note on R. 5:21-3 (2009) ("a juvenile is not entitled as of right to credit for time spent in a residential treatment facility as a condition of probation"). In S.T., we considered whether a juvenile sex offender should receive credit against a custodial sentence for time spent at Pinelands Residential Group Center (Pinelands), a residential-treatment program, as a condition of probation. 273 N.J. Super. at 439. S.T. violated his probation when he was expelled from the program. Ibid. He was sentenced to an indeterminate term up to three years at Jamesburg. Ibid. He was credited for all time served in detention pursuant to Rule 5:21-3(e), but was denied credit for time spent at Pinelands. Ibid. S.T. argued that he should not have been denied this credit because Pinelands was a physically restricting facility that should be considered the equivalent of detention time. Ibid.

We rejected S.T.'s argument because participation in the Pinelands program was voluntary in the sense that he was not locked in even though there were strict consequences in the event of noncompliance. Id. at 447-48. We concluded that the incidental physical restrictions were "simply reasonable terms of a probationary disposition." Id. at 447. A credit based solely on a "'court ordered out-of-home placement'" was inappropriate because "[t]he residential nature of the Pinelands program is not punitive in nature but in aid of the juvenile's rehabilitation through therapy and education. These admirable goals would be subverted by allowing credit based on the out-of-home nature of the program." Id. at 449. Furthermore, if credit were allowed, it would "practically eliminate serving any time at Jamesburg" and thus S.T. "would have escaped the rigors of the custodial disposition while failing to benefit himself and society by completing the Pinelands Program . . . ." Ibid.

C.V. argues that we should modify S.T. in light of N.J.S.A. 2A:4A-38l and A.O.C. Directive #8-04 construing it because the two residential treatment programs in which she was enrolled were "secure facilities" within the meaning of the statute. A.O.C. Directive #8-04, which was issued after our decision in S.T., provided "policy guidance to Family Part judges entering dispositions with respect to juvenile delinquents who are being held in a detention center." The Administrative Director noted:

Up to now, judges in some vicinages have on occasion postponed the entry of a juvenile disposition that includes placement in a residential facility until a bed in an appropriate facility becomes available. As agreed by the Conference of Family Presiding Judges, in situations where no bed is available, instead of postponing the disposition the judge should enter the disposition order immediately. If the juvenile must continue to be held in detention prior to being placed in accordance with the disposition, the judge should direct that the juvenile be returned to detention to await an appropriate placement.

The Director went on to observe that the problem with this procedure was that persons charged with caring for juvenile delinquents had adopted two distinct interpretations of N.J.S.A. 2A:4A-38l. The Director then quoted N.J.S.A. 2A:4A-38l and observed, "Some detention facility superintendents have interpreted the statute to imply that if a juvenile is awaiting a placement that is not in a 24-hour lockdown facility, the juvenile may not remain in detention." The Director stated that this interpretation was inconsistent with the plain language of the statute, which required the "transfer of a juvenile to a shelter facility only if the juvenile is awaiting placement that is non-secure [sic]." He then concluded:

As a matter of fact, most out-of-home placement and residential programs have some security component that would qualify them as "secure" placements under the statute.

Based on the legislative history, "secure" residential or out-of-home placement does not exclude a 24-hour supervised facility (e.g., DYFS programs, JJC programs), which would normally be ordered as a disposition for criminal offenses, not disorderly persons offenses.

The Director opined that the advocated interpretation of the statute would improve the juvenile detention system because "it will not contribute to overcrowding of detention facilities[,] . . . will decrease the overall amount of time served in detention[,] . . . [and by] not postponing dispositions will encourage the development of alternatives to detention."

C.V. argues that if we do not overturn S.T. it "would cause juvenile justice to revert back to a system where children languished in detention centers for months awaiting disposition." The prosecutor, on the other hand, argues that N.J.S.A. 2A:4A-38l and A.O.C. Directive #8-04 are simply not applicable here because they only apply "when a juvenile 'is awaiting transfer to a disposition alternative that does not involve a secure residential or out-of-home placement'" and here "C.V. was awaiting transfer to a secure residential treatment facility." In any event, he urges that neither the statute nor the A.O.C. Directive address the issue of credits at all. We agree.

The cited statute and the directive construing it are unrelated to the issue of custodial credits under Rule 5:21-3(e), which makes no reference to "secure residential or out-of-home placement." Like S.T., C.V.'s participation in YCS and Vision Quest was "a condition of probation and not . . . an incident of incarceration." S.T., supra, 273 N.J. Super. at 443. The purpose of her participation was rehabilitation, not punishment. Id. at 444-45. Obviously, neither program was a lock-down facility, as C.V. repeatedly ran away from both. Although there were restrictions on her freedom, they were no more than reasonable terms of probation. Id. at 447. As a consequence, she is not entitled to credit for time spent in a residential treatment program that was not custodial lock-down time as punishment for her fourth-degree offense.

 
After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the remainder of C.V.'s arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed.

This act governs "specialized rehabilitation programs which utilize proven military techniques of regimentation and structured discipline" established by the counties. N.J.S.A. 30:8-62. Juveniles incarcerated in a JCC facility are eligible to participate in these programs in lieu of continued incarceration. N.J.S.A. 30:8-66. If they fail to comply with the program, they must be returned to JCC incarceration. N.J.S.A. 30:8-67.

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A-5267-06T4

RECORD IMPOUNDED

May 12, 2009