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In re K.F.

June 23, 1998


Before Judges D'Annunzio, A. A. Rodr¡guez and Coburn.

The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.

[9]    Argued: January 7, 1998

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County.

The New Jersey Division of Youth and Family Services (DYFS) appeals from a Dispositional order of the Family Part ordering it to provide services and to pay for attendance at an out-of-state residential drug program for K.F., an eighteen year old who had violated the terms of his juvenile probation and who was not previously known to DYFS. DYFS contends that the Dispositional order "forced the agency to act outside of its statutory mandate." We disagree and hold that the Family Part has jurisdiction to place an adjudicated juvenile delinquent under the care and custody of DYFS pursuant to N.J.S.A. 2A:4A-43b(5) even when the delinquent is between the ages of eighteen and twenty-one.

At age thirteen, K.F. began to experience depression and panic attacks for which he was treated with drug therapy. He began abusing illicit drugs at thirteen. Over the next few years, he participated in numerous drug rehabilitation and detoxification programs. Upon discharge from the last one, his inpatient psychiatrist Marjorie Somers, M.D., opined that he would "be best served in an ongoing dual diagnosis focused program as both his psychiatric illness and addiction need to be addressed."

Nine days before his eighteenth birthday K.F. was charged with conduct constituting juvenile delinquency. The adjudicatory hearing took place after K.F. became eighteen. The Judge imposed a probationary sentence. However, five months later, urine monitoring results revealed that K.F. was using illicit drugs again. The Judge entered a new dispositional order placing K.F. in the care and supervision of DYFS. DYFS was ordered to obtain an in-patient drug treatment program for him.

DYFS's District Office Manager informed the Judge that DYFS could not provide services to K.F. because he was over the age of eighteen and neither he, nor his family had ever received services from DYFS in the past. The Judge directed DYFS to file a motion for reconsideration.

DYFS moved for reconsideration. The Judge denied the motion and ordered DYFS to immediately comply with the Dispositional order. The judge also ordered a status hearing on K.F.'s placement in an in-patient drug treatment program and denied DYFS's application for a stay pending appeal.

At the first status hearing, the Judge ordered DYFS to apply to two in-patient treatment programs for K.F. At a second status hearing, the judge ordered DYFS to identify appropriate treatment programs for K.F. and to provide funding therefor. At a third status hearing, the Judge found that there was only one suitable program available for K.F.'s treatment, the Terraces Center for Addiction Medicine & Behavioral Health in Ephrata, Pennsylvania (Terraces). The Judge ordered DYFS to immediately arrange for and fund in-patient drug treatment for K.F. at Terraces.

DYFS appealed and moved for acceleration of the appeal. We denied a motion for stay. *fn1 While this appeal was pending, K.F. was discharged from the Terraces facility and is currently residing in a half-way house in York, Pennsylvania, as an emancipated adult. DYFS is not currently providing any services or payments on behalf of K.F. Although the issue presented is somewhat moot, we elect to address the merits because the fact pattern is capable of repetition and it would serve the public interest, judicial economy and give guidance to DYFS to resolve the issue. See DYFS v. J.B., 120 N.J. 112, 118 (1990).

On appeal, DYFS contends that the Judge erred by requiring it to provide services to the adult, K.F. We begin our analysis by reviewing certain provisions of the Code of Juvenile Justice (Code). If a juvenile is adJudged delinquent, the Family Part may impose incarceration or any one of nineteen other Dispositions authorized by N.J.S.A. 2A:4A-43b. One of those Dispositions is that the court may, Place the juvenile under the care of the Department of Human Services under the responsibility of the Division of Youth and Family Services pursuant to [N.J.S.A. 30:4C-1 to -40] for the purpose of providing services in or out of the home. Within 14 days, unless for good cause shown, but not later than 30 days, the Department of Human Services shall submit to the court a service plan, which shall be presumed valid, detailing the specifics of any Disposition order. The plan shall be developed within the limits of fiscal and other resources available to the department. If the court determines that the service plan is inappropriate, given existing resources, the department may request a hearing on that determination.

[N.J.S.A. 2A:4A-43b(5).]

Another section of the Code, N.J.S.A. 2A:4A-45, provides that the Family Part retains jurisdiction over an adjudicated delinquent for the duration of the Disposition. In addition, the court may substitute any other authorized Disposition after a hearing and notice to the prosecuting attorney if the court finds a violation of the condition of the Dispositional order. Ibid.

On its face the order here, entered after K.F. violated the terms of his probation, is not contrary to the Dispositional scheme of the Code. However, DYFS argues that it is not authorized to provide services to an eighteen-year old who was not previously known to the agency because it is mandated to serve children, and N.J.S.A. 30:4C-2(b) defines a "child" as "any person under the age of 18 years." Accordingly, DYFS has adopted a policy of denying services to anyone over eighteen unless that person was receiving services before age eighteen and meets certain continuation criteria. *fn2 We disagree with DYFS's position because we find no support for it in the Code or in other pertinent statutes. In 1972 the Legislature lowered the age of majority from twenty-one to eighteen by enacting N.J.S.A. 9:17B-1 to -4. This meant that persons between ages eighteen and twenty-one were no longer to be prosecuted in the Family Part as juvenile offenders. However, the Legislature expressly continued the Family Part's jurisdiction over persons between the ages of eighteen and twenty-one who had been adjudicated delinquent. N.J.S.A. 9:17B-3 provides in relevant part that a person eighteen or older shall ...

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