STATE OF NEW JERSEY IN THE INTEREST OF D.C a Juvenile

RECORD IMPOUNDED

                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-3933-18T3

STATE OF NEW JERSEY
IN THE INTEREST OF D.C.,
a Juvenile.
___________________________

                Argued March 4, 2020 – Decided March 16, 2020

                Before Judges Haas and Mayer.

                On appeal from the Superior Court of New Jersey,
                Chancery Division, Family Part, Middlesex County,
                Docket Nos. FJ-12-0556-19, FJ-12-0560-19, FJ-12-
                0680-19, FJ-12-0783-19, and FJ-12-0833-19.

                Brian P. Kenan, Assistant Deputy Public Defender,
                argued the cause for appellant D.C. (Joseph E. Krakora,
                Public Defender, attorney; Brian P. Keenan, of counsel
                and on the briefs).

                Christopher L.C. Kuberiet, Acting Middlesex County
                Prosecutor, argued the cause for respondent State of
                New Jersey (Christopher L.C. Kuberiet, Acting
                Middlesex County Prosecutor, attorney; Joie D. Piderit,
                Special Deputy Attorney General/Acting Assistant
                Prosecutor, of counsel and on the brief).

PER CURIAM
        D.C.,1 a juvenile, appeals from a Family Part judge's April 11, 2019 order

of final disposition and sentence, arguing the judge's failure to hold a hearing

before vacating a February 28, 2019 probationary sentence violated her

fundamental right to due process. The State agrees that a remand is required

under these circumstances. Therefore, we reverse.

        D.C. has a history of behavioral issues, resulting in multiple appearances

before Family Part judges handling juvenile matters. We need not recite D.C.'s

involvement with the juvenile justice system. Instead, we focus on the juvenile

charges giving rise to this appeal.

        On January 30, 2019, D.C. pleaded guilty to offenses that, if committed

by an adult, would constitute third-degree aggravated assault,  N.J.S.A. 2C:12-

1(b)(5)(h), third-degree burglary,  N.J.S.A. 2C:18-2, and violation of probation

(VOP). She admitted to burglarizing lockers at her high school and striking a

juvenile detention officer at the Middlesex County Detention Center. D.C.

committed these acts while she was on probation for prior juvenile charges.

After she entered her plea, the Family Part judge ordered D.C. furloughed to the

Care Maintenance Organization (CMO) for interviews and evaluations.




1
    We use the juvenile's initials to protect her privacy. R. 1:38-3(d)(5).
                                                                              A-3933-18T3
                                          2
      A disposition hearing was held on February 28, 2019, at which time the

judge sentenced D.C. to eighteen months' probation and ordered her to attend

the CMO program and aftercare program. The sentence was stayed pending bed

availability. The judge indicated there would be post-dispositional recalls every

two weeks and scheduled the first recall for March 21, 2019.

      On March 1, 2019, the Family Part judge received a telephone call from

the detention center where D.C. was being held. A staff member advised the

judge that D.C. "was going to be charged with an assault that occurred at the

detention center." Upon learning of this new charge, the judge cancelled D.C.'s

interview with CMO staff and scheduled a March 4, 2019 hearing with counsel

for the parties.

      At the March 4, 2019 hearing, the judge informed the parties of her

conversation with the detention center and indicated she had received a

complaint for second-degree aggravated assault. The judge explained a VOP

complaint was forthcoming. Despite the absence of a filed VOP complaint, the

judge vacated D.C.'s February 28, 2019 probationary disposition. The new VOP

complaint was forwarded to the judge on March 15, 2019.

      On March 21, 2019, the judge conducted a plea hearing on the new

second-degree aggravated assault charge,  N.J.S.A. 2C:12-1(b)(1), and the VOP.


                                                                        A-3933-18T3
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D.C. admitted she struck a juvenile with a water pitcher while at the detention

center, and the juvenile victim required seventeen stitches. D.C. pleaded guilty

to the assault and VOP charges, and the judge scheduled a disposition hearing

for April 11, 2019.

      At the April 11, 2019 hearing, the judge sentenced D.C. to two years in

the custody of the Juvenile Justice Commission (JJC) based on the new second-

degree aggravated assault charge.        On the previous charges, the judge

resentenced D.C. to the following terms concurrent to the new charge: one year

for the first VOP; two years for third-degree burglary; two years for third-degree

aggravated assault; and one year for the second VOP.

      Counsel for D.C. and the State agree the judge erred by vacating D.C.'s

February 28, 2019 probationary disposition without a newly filed complaint

charging D.C. with a second VOP. We concur.

       N.J.S.A. 2A:4A-45(b) allows a Family Part judge to "substitute any other

disposition which it might have made originally" when a juvenile violates a term

of the court's disposition. However, the judge must provide notice and an

opportunity to be heard consistent with due process before substituting the

disposition.  N.J.S.A. 2A:4A-45(b); R. 5:24-5(a); see State v. Mosley,  232 N.J.
 169, 190-91 (2018).


                                                                         A-3933-18T3
                                        4
      Here, the Family Part judge failed to adhere to  N.J.S.A. 2A:4A-45(b) and

Rule 5:24-5(a) by unilaterally vacating the February 28, 2019 disposition before

counsel could be heard. In vacating D.C.'s probationary disposition absent a

newly filed VOP complaint, the judge incorrectly relied on a telephone

conversation to establish the VOP. Without the benefit of a hearing, the ex parte

telephone communication from an individual at the juvenile detention center

"was not sufficiently reliable for its asserted purpose of substantiating the new

criminal charges" of second-degree aggravated assault and VOP. Mosley,  232 N.J. at 174. As a result, the juvenile, her counsel, and the State were deprived

of their right to a full and fair hearing on the issues.

      Under these circumstances, we are constrained to vacate the April 11,

2019 disposition and remand the matter to the Family Part for further

proceedings. The remand hearing shall be conducted within forty-five days of

the date of this opinion. We take no position on the arguments that may be

raised in connection with the remand hearing.

      Reversed and remanded. We do not retain jurisdiction.




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