Matter of Demetrius A

[*1] Matter of Demetrius A 2017 NY Slip Op 27419 Decided on December 19, 2017 Family Court, Kings County Deane, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 19, 2017
Family Court, Kings County

In the Matter of Demetrius A, a Person Alleged to be a Juvenile Delinquent.



D-30102/17
Jacqueline B. Deane, J.

Factual & Procedural Background

The Respondent, Demetrius A, is before the Court on a combined dispositional hearing after an admission to Criminal Possession of a Weapon in the Second Degree relating to a 2017 incident which also constituted a per se violation of a conditional discharge on a 2016 docket. At age 15, Demetrius has had several cases in the juvenile justice system and has been provided more than one opportunity to remain home on probationary sentences coupled with various community programs. While on his last period of probation, Demetrius was arrested in July of 2016, and following his admission to Attempted Robbery in the Second Degree, his probation disposition was revoked and he was placed with the Administration for Children's Services ("ACS") in a Non-Secure Close to Home ("CTH") setting in Queens on August 10, 2016. Demetrius remained in CTH for approximately 10 months, returning home in June of 2017. Four months later, on October 28th, Demetrius was arrested on the instant petition and has remained in non-secure detention since that time.

As part of the plea agreement in this case, Demetrius waived his right to contest a placement disposition for a period of 18 months with a 6-month minimum. Therefore, the sole contested issue at this dispositional hearing is whether Demetrius will be placed in a non-secure or limited secure CTH facility. In support of its argument for limited secure, the Presentment Agency has introduced the prior petitions and dispositional orders as well as the various dispositional reports prepared in both the present and prior cases as well as introduced testimony from the current investigating probation officer and the detective who arrested Demetrius on the [*2]latest incident. In arguing for non-secure placement, the Attorney for the Child ("AFC") is relying on the various adjustment reports prepared by ACS Division of Youth and Family Justice ("DYFJ") during the time Demetrius has been in non-secure detention.

In terms of the dispositional reports, the Probation Investigation and Report ("I & R") recommends Placement, with no level specified, and the Mental Health Study ("MHS") recommends Placement in a non-secure facility. Probation also completed a Placement Recommendation Tool ("PRT") which provides a recommendation as to placement level based on only 3 limited factors. Demetrius received a point for 2 out of the 3 factors, both related to the severity of his offenses, which was sufficient for the minimum score for a limited secure recommendation. Notably, the Youth Level of Service ("YLS") risk assessment instrument completed by Probation scored Demetrius's overall risk level as 16, which is in the middle of the moderate range (a score of 23 is required for high risk and 35 for very high risk).

Legal Analysis

"Delinquency proceedings are designed not just to punish the malefactor but also to extinguish the causes of juvenile delinquency through rehabilitation and treatment. Indeed, a hallmark of the juvenile justice system is that a delinquency adjudication cannot constitute a criminal conviction and a juvenile delinquent cannot be denominated a criminal. Rather, a Family Court adjudication is a civil proceeding, and its purpose is to supervise and guide a troubled youth." Green v Montgomery, 95 NY2d 693, 697—98 [2001] (internal citations and quotation marks omitted). See also Matter of Quinton A., 49 NY2d 328, 335 [1980] ("[I]n most cases the Legislature has chosen not to brand the juvenile who commits an act which would otherwise be a crime a criminal, but recognizes that he is a person not fully responsible for his conduct.")

The dispositional scheme of Article 3 encapsulates this essential difference between juvenile delinquency and adult criminal prosecutions in the language of Family Court Act § 352.1. That part of the statute sets forth that a juvenile delinquency adjudication is a two-fold process where the entry of a fact-finding, whether after trial or admission, is only the first step. In order for the adjudication to occur, the court must make an additional finding at the dispositional stage, namely that the respondent "requires supervision, treatment or confinement." Family Court Act§ 352.1(1). If that threshold finding is made, "[i]n determining an appropriate [specific dispositional] order, the court shall consider the needs and best interests of the respondent as well as the need for protection of the community . [T]he court shall order the least restrictive available alternative which is consistent with" those two factors. Family Court Act § 352.2(a).

The Respondent has already consented to this Court ordering that he is need of the highest level dispositional alternative for a non-designated felony, namely, placement away from home for 18 months in a juvenile facility, and he has further agreed to the added restriction that he remain in the facility for a minimum of 6 months. These are both decisions that, but for the Respondent's consent, the Court would have the discretion to determine consistent with the standards in FCA §§ 352.2 and 353.3. The sole question here is whether the Presentment Agency has established that the need for protection of the community requires the Court to mandate that the facility be a limited secure one.

There was no evidence presented by either side at this hearing about any of the differences between limited secure and non-secure placement facilities. By law and according to [*3]the plan published by ACS, the facilities are distinguished by the limited secure facilities' higher level of restrictive hardware both surrounding the facility and internally as well as a higher staff to youth ratio.[FN1] Residents in non-secure facilities leave the facility for school and have the ability to earn home passes after an initial month in placement, whereas residents in limited secure generally remain on-site for school and do not begin home visits until release planning has begun.[FN2]

These institutional differences dictate that the primary justifications for a court's choice of limited secure as "the least restrictive alternative" is where a young person would present a risk of leaving the facility without permission (known as "absent without leave" or "AWOL") or has difficulty managing their behavior in a facility setting. Neither of these is true of Demetrius.

Demetrius successfully completed his last period of non-secure placement after spending 10 months in placement out of a possible initial period of 18 months. The MHS examiner interviewed Ms. King, the Placement and Permanency Specialist assigned to Demetrius. Ms. King described Demetrius as having done "fairly well" at the CTH facility with a minimum number of incidents there. Demetrius appears to have adapted to the requirements of his previous non-secure placement and engaged in the services provided. He tells the MHS examiner that the he found the CTH counseling sessions "helpful" and that they "assisted him with how he talks to others and to calm down." Court's Exhibit 3, Updated Clinical Report, New York City Health and Hospitals Corporation Family Court Mental Health Services, dated 12/1/17. Demetrius apparently went on successful home passes that eventually led to his return home and he had no new arrests either while in the facility or in the community during his 10 months in placement. There is no evidence that Demetrius ever AWOL'd or even attempted to leave the facility unauthorized.

Since this new arrest, Demetrius has again been successful in adapting to a non-secure [*4]detention environment where he has remained for over one month with no attempts to leave the facility unauthorized. Demetrius has consistently achieved the highest possible score of 4 out of 4 in the Behavior Management System and is generally described as respectful to staff and appropriate with peers. Although there was one peer altercation reported on December 3rd, Demetrius was immediately receptive to counseling and conflict resolution with the other youth, but the other youth was unwilling to engage. See Court's Exhibit 5, report dated 12/11/17.

Rather, in this case, the concerns for community safety emerged when Demetrius was home on after-care status. A few factors appear to have contributed to this fact. First, Demetrius's mother, Ms. M, made a decision, which she now regrets, to have him reside with an older brother rather than with her, because that residence was closer to Demetrius's school. Ms. M has since come to realize that Demetrius did not receive the supervision in his brother's home that she had anticipated. Second, Demetrius's transition back to school was not successful because he was sent to Abraham Lincoln High School where both he and his mother indicate that members of their family have had safety issues in the past and, as a result, Demetrius barely attended. Though the CTH after-care staff was purportedly working on a school transfer, this did not happen quickly enough. Third, according to Demetrius and his mother, the CTH staff had pledged to help Demetrius obtain a job upon his return home, which was a big motivator for him, but neither that assistance nor the job materialized. As a result, it appears Demetrius had too much unstructured time on his hands and he ended up returning to his past poor decision-making. It is particularly unfortunate that the after-care staff did not insist more strongly on Demetrius's involvement in the Cure Violence program he was referred to, given the fact that Demetrius was ultimately arrested for possessing a loaded gun after being the target of a shooting the day before. Given Demetrius's pattern of non-compliance early on in his after-care, it is troubling that although ACS was "planning to request revocation of his aftercare," it had not done so by the time of his arrest on the instant case. Court's Exhibit 3, Updated Clinical Report, New York City Health and Hospitals Corporation Family Court Mental Health Services, dated 12/1/17, p. 11. However, this Court does not believe that Demetrius's deterioration on after-care necessitates a higher level of placement now.

The Presentment Agency focused much of this hearing elaborating on Demetrius's gun possession by establishing what occurred during the incident where Demetrius was shot at the day before his arrest. The testimony of the Detective and the accompanying video appeared to establish that Demetrius was shot at on the street by an unknown individual and that Demetrius responded by removing a gun from his pocket and holding it while running down the street. The crux of the Presentment Agency's argument appears to be that because Demetrius was not only in possession of a loaded gun, but apparently carrying it on the day he was shot at and displaying it on the street in response to the shooting, that the community risk Demetrius presents requires a limited secure placement. However, there was no evidence presented about the relative ability of the different level facilities to reduce the recidivism of their residents. As far as this Court is aware, the identical rehabilitative services and programming model exists in limited secure as in non-secure.

It would be a simplistic response to say that because Demetrius was placed in a non-secure facility and was re-arrested for a felony within 6 months of his release that the next step must be placement in a higher level of restriction and security. The criminal justice system tends [*5]to operate on a graduated sanction approach such as that. However, the criminal justice system's primary goal is punishment and therefore sentencing ranges there are based on the severity of the crime and the defendant's prior record. In contrast, the juvenile justice system was not designed to respond in this simplistic manner. Rather the Family Court is mandated by statute to engage in the much more complex process of looking at the background, circumstances and needs of the specific young person in question and to determine which dispositional alternative best addresses those needs, as well as the goal of community safety, in the least restrictive manner possible.

There is no basis on this record to find that either Demetrius's rehabilitation or the goal of community protection will be better served by a limited secure facility. There was no risk to the community presented by Demetrius's behavior while residing in the non-secure placement facility but only in his transition back to the community. At that point, system failures likely contributed to Demetrius's personal failure to lead a law-abiding life. The fact that a non-secure facility did not result in such behavior change the first time around does not mean that it will not the second. Rather, adolescents often require lessons to be repeated multiple times before they are successfully absorbed given the continuing development of the adolescent brain through the teenage years.[FN3] Based on the evidence at this hearing, community safety will be equally or better served by maintaining Demetrius in a non-secure facility. The NSP interventions can and should be directed at giving Demestrius insight into his errors in decision-making while at home and working to re-direct him towards making choices in the future that will not put either the community or himself at risk of harm.

In reaching this decision, the Court does not in any way understate the seriousness of the recent events Demetrius was involved in or his own responsibility for his choices. In the few days leading up to his arrest, Demetrius was the victim of an attempted shooting and was in possession of a loaded gun. The Court sincerely hopes that Demetrius appreciates that he is fortunate to be alive and unharmed and not be subject to the more punitive adult criminal justice system. Had Demetrius injured anyone else with the gun that is where he would be. Therefore, the Court hopes that Demetrius can see this return to non-secure placement as an opportunity to focus on his decision-making, which he has acknowledged was poor, and on his education given that his intelligence is noted as a significant strength in all the reports. Additionally, the Court is ordering that CTH involve Demetrius in "Cure Violence" or a similar program while in the facility as well as upon his return to the community and that his after-care plan be firmly established prior to his return to the community including a school Demetrius agrees to attend [*6]and a job or other after-school activity.

Therefore, the Court finds that the Respondent is in need of supervision, treatment and confinement, and hereby adjudicates him to be a juvenile delinquent. Family Ct. Act §§ 350.3[2], 352.1[2]. The least restrictive alternative required by Family Court Act 352 is placement with ACS CTH for a non-secure facility for a period of up to 18 months with a 6-month minimum.

Date: December 19, 2017

The Hon. Jacqueline B. Deane, JFC Footnotes

Footnote 1: "The ratio of youth to direct care/supervisory workers in all types of regular NSP residential settings shall be eight (8) youth to one direct care/supervisory staff during all waking hours and twelve (12) youth to one direct care/supervisory staff during sleeping hours." Juvenile Justice Non-Secure Placements Quality Assurance Standards, NYC Administration for Children's Services, 2013, p.65. "The ratio of youth to direct care workers in all types of general and specialized LSP residential settings shall be six (6) youth to two (2) direct care staff." Juvenile Justice Limited Secure Placements Quality Assurance Standards, NYC Administration for Children's Services, 2015, p.24.

Footnote 2: "ACS-placed youth in NSP facilities shall be assessed for an initial home visit no later than 30 days from admission to the facility, unless otherwise indicated in the youth's placement order." Juvenile Justice Non-Secure Placements Quality Assurance Standards, NYC Administration for Children's Services, 2013. In contrast, "[a]s part of the release process, and to begin the transition from the LSP facility back to the community, LSP contractor staff supervised day visits by the youth to the home of the parent[s], family, extended family or other discharge resources must begin at the discretion of ACS with information and consultation from the LSP contractor." Juvenile Justice Limited Secure Placements Quality Assurance Standards, NYC Administration for Children's Services, 2015, p.44.

Footnote 3: "It has been noted that 'adolescents are overrepresented statistically in virtually every category of reckless behavior.'" Roper v Simmons, 543 US 551, 569, 125 S Ct 1183, 1195, 161 L Ed 2d 1 [2005] (quoting Arnett, "Reckless Behavior in Adolescence: A Developmental Perspective," 12 Developmental Rev. 339 (1992)); see also Brief of the Amer. Med. Ass., Amer. Psychiatric Assoc., et. al. as Amici Curiae in Support of Respondent, Roper v Simmons, 2004 WL 1633549 (U.S.), 2-3 (U.S.,2004) ("Cutting-edge brain imaging technology reveals that regions of the adolescent brain do not reach a fully mature state until after the age of 18. These regions are precisely those associated with impulse control, regulation of emotions, risk 3 assessment, and moral reasoning. Critical developmental changes in these regions occur only after late adolescence.").