Matter of Aubree C.

[*1] Matter of Aubree C. 2018 NY Slip Op 28225 Decided on May 9, 2018 Family Court, Monroe County Kohout, 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 May 9, 2018
Family Court, Monroe County

In the Matter of a Proceeding involving the Interstate Compact on Juveniles, Aubree C.



D-02293-18



APPEARANCES:

Michael J.O'Brien, Esq.

Senior Attorney

Office of General Counsel

NYS Office of Children and Family Services

Heather M. Crimmins, Esq.

The Legal Aid Society

Attorney for Aubree C.
Joan S. Kohout, J.

DECISION AND ORDER

This proceeding is brought pursuant to the Interstate Compact on Juveniles (Executive Law §501-e). The revised version of the Interstate Compact on Juveniles (hereinafter referred to as the Compact) was approved by New York State in 2011. An earlier version remains in the law as repealed until September 1, 2020 (see Unconsolidated Laws §1800 et seq).

The revised Compact is extremely spare, including only a list of definitions and the organizational structure of the Interstate Commission for Juveniles (ICJ), which is made up of representatives of the member states. The procedural requirements are contained in the ICJ Rules promulgated by the Interstate Commission on Juveniles (see Exec. Law §501-e, Art.6). It is the ICJ Rules that establish the procedures for the transfer and supervision of juveniles between states (ICJ Rules, Section 400), supervision of juveniles in the receiving state (ICJ Rules, Section 500) and the voluntary and non-voluntary return of juveniles and runaways (ICJ Rules, Section 600).

Procedural Background

On March 1, 2018, Aubree C. and his father Jason Eliezer C. appeared in Monroe County Family Court before Hon. Stacey M. Romeo after Aubree was arrested on a warrant from the State of Delaware. An attorney was appointed for Aubree, who appeared and objected to his return to Delaware. Counsel for the child reported that Aubree had been living with his father with permission of Delaware Probation and had been going to school from his father's home.

At that time, a travel pass was presented to the court showing that Aubree was given permission to travel to New York for a "visit for testing placement." The travel pass was dated January 25, 2018 and was completed by Thomas Harris JPO. The pass states:

Permission is granted to the above-named juvenile to visit the State of New York from 1-[*2]25-18 to.

The travel pass further states that Aubree would be staying with "Jason C. 989 Dewey St Rochester New York 14613 585-705-1332."

At the conclusion of the March 1st court appearance, Aubree was remanded to secure detention and the case was adjourned to March 5, 2018.

Also on March 1, 2018, three documents were filed with the Monroe County Family Court:

1. Juvenile Complaint and Warrant from the Justice of the Peace Court in and for the State of Delaware dated February 1, 2018: The warrant is signed by an officiant whose signature is illegible and whose name is not included on the warrant. At the top of the warrant is a request by "DET MACDONALD (55811) of DOVER PD," who requests that a warrant be issued based upon "Exhibit A." Exhibit A is an unsigned document alleging that Abree C. committed the crimes of Robbery First Degree Displays What Appears to be a Deadly Weapon and Possession of a Firearm During the Commission of a Felony on January 18, 2018.

2. Affidavit of "DET MACDONALD dated February 1, 2018. This document is marked as Exhibit B and describes an investigation of a robbery allegedly occurring on January 18, 2018 and a photographic identification procedure where the complainant picked out "C." and stated that "he was approximately 65% sure that C. was the suspect who robbed him."

3. Police Complaint Number 50 18 002076 which alleges that on January 18, 2018 Abree C. committed Robbery in the First Degree Displays What Appears to be a Deadly Weapon and Possession of a Firearm During the Commission of a Felony.

On the next court date March 5, 2018, Aubree, his father and his attorney appeared. No additional documentation was provided at that time. It is noteworthy, however, that the description of the perpetrator contained in the detective's affidavit was "an approximately 15 year old Hispanic male who was 5'4" and 'husky' at 160 pounds." This description varied from the description of Aubree C. at the top of the affidavit:

Date of Birth/Age: 06/08/2002 (15) Sex: MaleRace: Black/African AmericanEye Color: BrownHair Color: Blonde/StrawberryHeight: 5'06" Weight: 220 lbs.

After a review of the documents in the court file, the court determined that there was insufficient cause to detain Aubree and he was released to his father with directions to return to court on April 2, 2018 to determine if a requisition would be filed by Delaware.

By the April 2, 2018 court appearance, a requisition with attachments was filed with the court. There is no record as to when the requisition was received. The requisition states that Krystal Hall requests the return of Aubree C. in accordance with the Interstate Compact for Juveniles. The requisition also states that the juvenile "was placed on probation subject to the supervision of Delaware DYRS/Kent County Family Court," and that the juvenile is believed to be at: "6 Dorothy Avenue Rochester, New York 14615." The next paragraph describes the basis for the request to return:

Attached is a certified true copy of the judgment, formal adjudication, order of commitment, or petition alleging delinquency, verifying juvenile's legal status.1. Particulars of adjudication or allegations of delinquency:On October 25, 2017, Aubree C. appeared before Commissioner David Jones in Kent County Family Court and was adjudicated of Shoplifting Under $1500 (case No.170003614). He was sentenced to Probation Before Adjudication of Delinquency on Level II for 12 months. Aubree was ordered to perform 50 hours of community service, complete Shoplif [sic]2. Circumstances of breach of terms of probation, parole escape from institution or fleeing to avoid prosecution:On January 18, 2018, Aubree C. allegedly committed a crime. On February 1, 2018 he was charged with: Robbery 1st Degree Displays What Appears to be a Deadly Weapon and Possession of a Firearm During the Commission of a Felony

The requisition requests that if the requisition is honored, Francis C., Deputy Compact Administrator and Krystal Hall, MFSS be notified. On the line for signature by a Judge or Compact Official there is an illegible signature with no name underneath and a date of 3/7/18. The Affidavit of Verification is blank.

Attached to the requisition are copies of the following documents, none of which are not certified:

1. DELJIS Charge Summary for C. Aubree, which appears to have been printed on 2/13/18 and lists status as "Warrant Status: Active." A description is provided that includes "Hair Color: Bln."

2. Juvenile Complaint and Warrant, Police Complaint, Affidavit of Det Macdonald, which are duplicates of the copies of documents filed with the court on March 1, 2018.

3. DELJIS Charge Summary for C., Aubree, which appears to have been printed on 2/13/18 and contains additional information including "Convictions of Delinquency or

Responsible. [sic]"

4. Unsigned four paragraph document stating: "Probation is requesting supervision is transferred to New York, so conditions can be completed."

5. Conditions of Community Supervision signed by Krystal H. and dated 1/25/18.

6. Election Form signed by Aubree C. and Parent/Guardian (signature illegible) dated 10/25/17.

7. Probation Before Adjudication Order dated October 25, 2017 with Commissioner signature illegible.

8. Court Ordered Special Conditions requiring community service, no contact with Buffalo Wildwings/Target, complete Shoplifter's Alternative counseling, $10 Victim Compensation Fund fee and restitution upon request within 90 days.

9. 2nd Copy of Election Form.

On April 2, 2018, after a review of the requisition the court determined that it was not in proper form and adjourned the case again for Delaware to submit a proper requisition.

On May 2, 2018, Aubree appeared with his father and his attorney. On that date, an attorney from the Office of General Counsel for the New York State Office of Children and Family Services appeared and filed an attorney's affirmation in support of the requisition with attachments. Most of the documents had been previously received. The additional documents include:

1. Interstate Compact for Juveniles Parole or Probation Investigation Request dated [*3]1/25/18 stating referral made by Krystal Hall.

2. Interstate Compact for Juveniles Application for Services Form signed by Aubree C. and Shirley B. on January 25, 2018 and on 1/30/18 by an unidentified individual with an illegible signature.

3. Interstate Compact for Juveniles Home Evaluation Report Form, which is

mostly blank. The form has a date of 3/7/18 and a box at the bottom checked "Supervision denied" with a name typed below, Raymond T., on a line for "Compact Official Name."

4. Copy of Court Summary for 3/1/18, 3/5/18 and 4/2/18.[FN1]

5. Amended Requisition. This is a duplicate of the earlier requisition submitted in advance of the April 2, 2018 court appearance with the addition of a completed section at the bottom entitled Affidavit of Verification, which reads:

(Unless a Judge is the requisitioner, the requisition must be verified by affidavit, signed by requisitioner, and notarized.)

AFFIDAVIT OF VERIFICATION Francis C. (signature)(Signature of requisitioner)On this 30th day of April, 2018 personally appeared before me Francis C. proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to this instrument and acknowledged that she executed the same.Sandra L. Harris (signature)NOTARY PUBLICResiding at : 1825 Faulkland Rd Wilmington, DE 19805My Commission expires: upon office

A comparison of the signature of the individual who signed the requisition and the signature of Francis C. reveals that the signatures are completely different. The signature at the bottom of the requisition is an illegible scrawl with two large loops on top and one large loop below. The signature of Francis C. is legible and bears no resemblance to the signature above.

6. Proposed order. The proposed order submitted by OCFS counsel states that the respondent is an "absconder without consent" and that there is "a substantial probability that Respondent will not appear for transport from the State of New York to the State of DELAWARE."

The court also received an affidavit in opposition from the attorney for the child, who argues that there is no documentation that Aubree violated probation or absconded from probation supervision and that requisition is not in proper form. Counsel further submits that the descriptions of her client are inconsistent with the description by the victim in the robbery case and that Aubree should not be returned to Delaware based on the papers submitted.

Discussion

There is no disagreement that Aubree is a juvenile subject to the Compact (see Exec. Law §501-3, Art. II, [H]). Nor is there any disagreement that he was placed on pre-adjudication probation in the State of Delaware, the terms of which are included in the Court Order Special [*4]Conditions attached to the Probation Before Adjudication Order made on October 25, 2017. The court notes, that unlike conditions of Probation routinely imposed in New York State, Aubree was not ordered to refrain from committing any crimes.

Both versions of the requisition submitted by Delaware allege that Aubree breached his probation by committing a new crime on January 18, 2018. Both versions state that a certified copy of the relevant orders are attached, although no copy of a certified order was included with any of the documents submitted to the court.

The procedure for the non-voluntary return of an escapee, absconder or accused delinquent is contained in ICJ Rule 6-103A. As previously noted, there is no allegation that Aubree is an escapee or absconder. To the contrary, the travel pass submitted to the court by Aubree's counsel and counsel for OCFS states that the pass is valid from 1/25/18 for the purpose of a trial placement with the father. The expiration date is blank. While OCFS counsel has submitted a copy of a form indicating that New York denied the request to supervise Aubree's probation, this alone is insufficient to establish that Aubree absconded from Probation.

The Compact Rules do not require any specific documentation of entitlement for the non-voluntary return the juvenile other than the requisition, which shall be submitted on Form II Requisition for Escapee, Absconder or Accused Delinquent (ICJ Rule 6-103A[3]). The requisition must be verified by a sworn affidavit unless a judge is the requisitioner and "shall be accompanied by copies of supporting documents that show entitlement to the juvenile" and must be signed by the a judge or "the appropriate authority"(ICJ Rules 1-101; 6-103A [3] [a]). ICJ Rule 6-103A [3] [a] provides examples of documents that may be submitted along with the requisition, including judgments, orders of adjudication or commitment, petition alleging delinquency and other affidavits and documents. However, it does not require the submission of any specific supporting documentation. Although the Compact Form II requires that certified orders be attached, the ICJ Rule does not mandate that any submitted documents be certified.[FN2]

Nor do the Compact or Rules provide a specific remedy for a defective requisition. The court, however, must hold a hearing to "determine proof of entitlement for the return of the juvenile" and must issue written findings if entitlement is not established (ICF Rule 6 103-A [6]). Although not specifically stated, if the request for return of the juvenile is denied it would naturally follow that the youth would be discharged and the proceeding dismissed.

The few reported cases that exist do not provide the court with much guidance, especially since most decisions were rendered before the revised Compact was approved by the states. Matter of Teague, 91 NC App 242, 245 [1988], cert den and app dismd 323 NC 624 (1988), however, is instructive. In that case, the North Carolina Court of Appeals reviewed the Compact requisition requirements under the earlier version of the Compact and held that the court must find that the requisition is "in order " before a juvenile can be returned to the demanding state. In other words, if the requisition is deficient, the youth cannot be involuntarily sent back to the demanding state.

The court finds that neither the original nor the amended requisition here is in proper order. Nor does the requisition, amended requisition and attachments establish entitlement to the [*5]return of Aubree. While there is no decisional case law guidance as to when the requisition is "in order," Rule 6-103A[3] [a] mandates that the requisition be verified by affidavit unless a judge is the requisitioner. A facial examination of the requisition and amended requisition reveals that neither document is not properly verified. Moreover, the ground cited for return, breach of probation conditions, is not supported by documentation.

An examination of the requisition and amended requisition show that the requistioner is listed as Krystall Hall. The papers submitted by Delaware and OCFS counsel indicate that Krystal Hall is a Probation Officer in Delaware and that she executed a document entitled Conditions of Community Supervision on 1/25/18. She does not appear to be an "appropriate authority" to issue a requisition (see ICJ Rules 1-101; 6-103A [3] [b]).

The requisition was signed by an unknown person on 3/7/18 whose signature does not look similar to Ms. Hall's signature on the Condition of Community Supervision. But, even if Ms. Hall were a proper person to sign the requisition, the requisition would need to be verified by affidavit since she is not a judge, which was not done (see ICJ Rule 6-103A [3] [a]).

The amended requisition submitted by OCFS Counsel on May 2, 2018 is a copy of the original requisition with the addition of a newly completed verification affidavisigned by Francis C., Deputy Compact Administer. As a Compact official she likely is an appropriate authority to execute a requisition.

However, it is clear that Francis C. did not sign the requisition itself. Ms. C.'s signature is clearly legible in the verification affidavit and looks nothing like the scrawling signature at the bottom of the requisition. The verification by its terms requires the signatory, Ms. C., to verify under oath before the notary public that she actually signed the instrument, which in this case is the requisition. Execution of the verification alone is not sufficient. Thus, the requisition is improperly executed and fails to comply with ICJ Rule 6-103 [3].

An examination of the requisition and its attachments reveals that Delaware bases its claim of entitlement for return upon the allegation that Aubree breached his probation by being charged with a new crime. The requisition caption at the top of the form has a box checked stating "requisition for accused delinquent." The second box for "escapee or absconder" is not checked. Nor does the requisition allege that Aubree is an absconder.

Paragraph 1 is entitled "Particulars of adjudication or allegations of delinquency." This paragraph describes Aubree's adjudication for Shoplifting and placement on pre-adjudication probation. No new allegation of delinquency is alleged.

Paragraph 2 is entitled "Circumstances of breach of terms of probation, parole escape from institution or fleeing to avoid prosecution." This paragraph states that Aubree allegedly committed a new crime, which Delaware asserts constitutes a breach of probation.

The conditions of pre-adjudication probation submitted to this court do not include any requirement that Aubree refrain from criminal behavior. He was only directed to perform community service, stay away from Buffalo Wildwings/Target, complete Shoplifter's Alternative, pay a $10 victim's compensation fund fee and pay restitution if a request was made in 90 days. Thus, on the face of the documents presented by Delaware there was no breach of probation.

While the level of due process in Compact proceedings is generally minimal, at the very least a juvenile is entitled to notice in the requisition of the reasons the demanding state wants his return, as well as notice of which legally appropriate official is demanding return. Here the [*6]requisition was not properly signed or properly verified. Probation Officer Krystall Hall is listed as the requisitioner, but was not a proper person for execute the requisition. It further appears that someone other than Ms. Hall signed the requisition, but the identity of that individual is not apparent since the signature is illegible and there is no name under the signature. The verification subsequently signed by Deputy Compact Administrator Francis C. does not cure the defects concerning the identity and signature of the requisitioner since she did not sign the requisition herself.

Thus, after a facial examination of requisition the court finds that it is not in order and that it is substantially defective. Furthermore, the basis for entitlement for return outlined in the requisition, that Aubree breached his probation, has not been demonstrated. Therefore, the request for return is denied and the youth is discharged.

Although the court need not reach the identity issue raised by the attorney for the child, the court notes that wrongful identity may be raised in rendition proceedings. However, the issue is far narrower than suggested by the attorney for the child and is limited to whether the individual is the person identified in the papers file, not whether he is wrongly accused ( see People ex re. Strachen, 77 NY2d 499, 800 [1991] citing Michigan v. Doran, 439 US 282, 287 [1978] and California v. Superior Ct., 482 US 400 [1987]). Although it is deeply disturbing that the descriptions of the juvenile and the perpetrator vary enormously in the papers submitted, that issue is reserved for determination by the demanding state.

Accordingly, the application for return is denied.

This shall constitute the Order and Decision of the Court.

Signed at Rochester, New York on the 9th day of May, 2018.

JOAN S. KOHOUT

Family Court Judge Footnotes

Footnote 1:These summaries are prepared by court clerks and are not designed to be official transcripts of the proceedings.

Footnote 2:ICJ Rule 6-103A [4] permits the receiving state to request original or certified copies of legal documents. It does not appear that the NYS Compact Office made such a request.