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State in Interest of K.O.

January 31, 2000

STATE IN THE INTEREST OF K.O., JUVENILE-RESPONDENT.


Before Judges Skillman, D'Annunzio and Newman.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 30, 1999

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

J.O. and K.O., the parents of K.O. (hereinafter referred to as "the parents"), appeal from the orders of September 3 and 14, 1999, extending K.O.'s term of probation entered by the Family Court judge arising out of a juvenile delinquency adjudication. The parents also appeal from paragraph three of the order of August 6, 1999, requiring the parents "to contact Jennifer Smedburg at [Juvenile Evaluation and Treatment Services (JETS)] to arrange for whatever meetings or counseling is recommended as a first step toward joint counseling sessions and ultimate reunification." We affirm.

The history leading up to the entry of the orders being appealed from is lengthy, but is necessary to place the issues raised in context. In May 1998, K.O., a fifteen-year-old juvenile, was arrested and charged with possession of heroin. On August 19, 1998, K.O. appeared before Judge Friend and pled guilty to the charge. She was adjudicated delinquent and placed on probation for one year. The following "conditions of disposition" were also ordered: house arrest; obey custodian; attend school daily; obtain part-time employment; no association with co-defendant; driver's licence suspended for six months upon turning seventeen; perform forty hours of community service; pay a $1000 DEDR penalty and a $30 VCCB penalty; and complete JETS evaluation and follow recommendations.

On October 12, 1998, JETS evaluated K.O. and recommended that she continue drug treatment, submit to weekly urinalysis, and that her parents become involved in her treatment.

On February 7, 1999, K.O. attempted to sneak out of her home with the aid of a friend who provided a ladder for K.O. to use. When K.O.'s father went to investigate, he found her bedroom door to be locked. According to K.O.'s father, when K.O. refused to unlock the door, he forced the door open, and the door struck K.O., giving her a bruise to the eye and a bloody nose. According to K.O., however, her father broke through the locked door and "smashed her head against the wall and floor, causing a blackened eye and [a] bloody nose."

On February 16, 1999, a student counselor at K.O.'s high school noticed the bruise on K.O.'s eye and told K.O. to contact the Department of Youth and Family Services (DYFS). Although DYFS could not substantiate K.O.'s claim of abuse, it found that "the risk of violence in the home between father and [K.O.] is high." DYFS recommended that K.O. be placed in a shelter "for her own protection" and that she be evaluated by JETS. K.O. did not return home on February 16, 1999, and, with the consent of her mother, spent the following night at a friend's house. According to DYFS, K.O.'s family refused to allow her back into the home, and K.O. refused to return home.

On February 22, 1999, K.O.'s probation officer filed a complaint alleging that K.O. had violated her probation by failing to attend several classes at her vocational school and by remaining away from home on February 16, 1999. K.O. pled not guilty to this alleged violation of probation. The court remanded K.O. to a local shelter and ordered another JETS evaluation. The court also stated that K.O. and her parents were to "cooperate with any and all therapy ordered."

After evaluating K.O., JETS recommended that K.O. participate in weekly outpatient therapy; that the caregiver with whom K.O. is placed attend counseling with K.O.; that K.O. enter into a home contract with her future caregiver; and that the court address K.O.'s parents' refusal to provide consent for medical treatment of K.O.

On March 18, 1999, a review was conducted before Judge Susan Scott, discussing possible placement for K.O. K.O.'s assigned attorney from the Public Defender's Office indicated that there were a number of concerns regarding K.O.'s parents; namely, they did not participate in K.O.'s JETS evaluation, they refused to sign consents for emergency medical treatment of K.O. or for K.O. to attend any therapy, and they refused to assume financial responsibility for K.O.

On April 26, 1999, K.O. appeared before Judge Scott and pled guilty to violating her probation by failing to attend several classes at her vocational school and by remaining away from home on February 16, 1999. K.O.'s probation was continued, and she was released to the custody of P.A.W., the mother of one of K.O.'s friends. P.A.W. was present in court and indicated that she wished to take custody of K.O. She was approved by DYFS, the prosecutor, the court, and K.O. The court ordered that K.O. cooperate with the terms of the home contract prepared by her youth shelter counselor and that she follow the recommendations of JETS.

K.O.'s parents were not present at the hearing despite the fact that they were notified that they had to be present. K.O.'s attorney stated that K.O.'s parents "have basically refused to be involved." A bench warrant was issued for K.O.'s parents to be executed on April 26 or 27, 1999 or May 5, 1999 and thereafter, and only during court hours.

On May 5, 1999, K.O. and her attorney and K.O.'s mother appeared before Judge Scott. The judge indicated that the reason for the appearance was "there were numerous prior proceedings in which the parents were required to attend and they did not attend; and at the last review, a request was made for an arrest warrant in order to get the parents to appear." Initially, K.O.'s mother stated that she had not appeared on prior occasions because, although she had received a letter from K.O.'s probation officer, she had never received any "summons" to appear in court. When asked again why she had not "been involved with any of the reviews or the proceedings involving [K.O.,]" K.O.'s mother responded:

Because [K.O. is] looking to get herself out of the house. [K.O. is] running around crazy. ... I mean, I just want her to wake up. I don't want to go through any more therapy. I've had therapies [sic]. I've had psychologists. I've had psychiatrists. She needs to have something put in her face that she has to grow up now.

The judge answered that "it's very hard for juveniles to get back on the right track without parental cooperation."

Judge Scott told K.O.'s mother that, as natural parents, she and her husband have an "obligation" to be involved. The judge stated further that K.O. "will remain in the custody of [P.A.W.], as long as she consents and as long as that's working out, unless and until [her parents] make an application" objecting to K.O.'s placement. Judge Scott continued:

[If] you have reason to think [K.O. is] better someplace else, then present the court with whatever information, then we'd have a hearing and review that. But without the parents' participation and cooperation, the Division of Youth and Family Services and the various other agencies involved make investigations and do what they think is best for the child. It's without parental input. They have to go with what their investigation suggests.

K.O.'s mother was released upon the condition that she attend all future court hearings and provide any requested information. Upon K.O.'s mother's suggestion, the court requested that DYFS follow up on the possible placement of K.O. with her aunt. Judge Scott concluded the proceedings by telling K.O.'s mother, "The problem is, when you bring children into the world, that even if they're a problem, you can't just wash your hands. You [have] got to try to cooperate with all [of] the support agencies and see it through."

On May 12, 1999, K.O.'s father was brought before Judge Scott. He was told that his presence was required at any court review involving K.O., and he agreed to be present at any future hearing.

On June 22, 1999, the parents moved for a modification of the court's order of April 26, 1999, requesting, among other things, that K.O. be placed back in their home and that her probation be extended. On July 23, 1999, the parties appeared before Judge Scott. The judge denied, without prejudice, the parents' request and ordered that the parents participate in counseling with a view toward family reunification. Judge Scott stated that she would not order that K.O. be placed back with her parents against the recommendation of a professional who was dealing with K.O. who thought that was not in K.O.'s best interest at that time. The judge said that "[t]he goal is reunification[,]" and that the judge needed "more than a court application from the parents in light of the history of this matter to convince [her] that it's in the best interests of the child to bounce her back at this point." The judge continued:

[T]he fact that [K.O.'s parents] are interested and want to get involved certainly is a major first step, and I think that the counseling and working toward some reunification is the major second step, and I'm certainly going to provide for that.

The parents argued that "the State's ability to regulate or interfere with [the family] relationship is limited and coupled with an even greater adherence to procedural due process." Judge Scott disagreed, stating that the overriding consideration was the best interests of the child. The parents immediately requested a stay of the judge's order. The judge denied their request, stating that a stay of the order would result in an immediate transfer of custody because the judge's order "is just keeping things the way they are."

On August 6, 1999, the parents moved for reconsideration of the court's order denying their motion to change K.O.'s placement. The parents argued that, since K.O. had been placed with P.A.W., she was absent from school six days, late twelve days, and under disciplinary detention another four or five days. Judge Scott decided that, on the basis of what was presented to her, she did not "see anything that warrant[ed] removal from the current situation ...." The judge stressed that her decision did not mean that K.O.'s current custodial situation would be indefinite. The judge also required that an investigation be made regarding conflicting absentee records previously presented to the court.

The order denying the parents' application was entered on August 6, 1999. Paragraph three of the order required that the parents "contact Jennifer Smedburg at JETS to arrange for whatever meetings or counseling is recommended as a first step toward joint counseling sessions and ultimate reunification[.]" On September 3, 1999, the parties again appeared before Judge Scott. The parents objected to extending K.O.'s probation until her fines were paid off. K.O. herself had consented with the advice of counsel to the extension of probation. The parents contended that, under N.J.S.A. 2A:4A-47c, upon the termination of an order of disposition, "the balance of the fine can be reduced to a judgment recorded as a priority lien." The parents also challenged the court's retention of jurisdiction, arguing that the disposition order, entered on August 19, 1998, for a one-year probationary term, "terminated by its terms because the probation term was never extended during the probation period."

Judge Scott indicated that it was her understanding that the disposition order required that certain conditions be met. Because those conditions had not been met, the judge considered the court to have two options; namely, finding the juvenile in violation of probation and imposing the necessary penalties or extending the probationary term. The judge explained that, in cases like this one, in which the juvenile is working with the system, probation chooses to "give her a break and do what's best for everybody and extend the probation." The parents countered that, while that "may be the practice in Morris County," such was not provided for in the statute.

By an order dated September 3, 1999, Judge Scott modified the original disposition order and extended K.O.'s probation to August 28, 2000, her eighteenth birthday, or until fines were paid in full.

On September 9, 1999, after paying K.O.'s fines, the parents moved for a termination of K.O.'s probation before Judge Scott. The judge spoke at length with K.O. to determine what K.O. thought was in her best interests, staying with P.A.W. or returning home. K.O. questioned her parents' motives behind paying her fines and indicated that she was doing "absolutely great" with P.A.W. K.O. did not think that returning home to live with her parents would "work." K.O. explained that she had not spoken to her parents or had much contact with any member of her family for some ...


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