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In re S.S.

March 10, 2004

STATE OF NEW JERSEY IN THE INTEREST OF S.S.


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, No. FJ-04-4840-02.

Before Judges Conley, Carchman and Wecker.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2003

The question raised by this appeal is whether a juvenile, who originally came before the court solely on account of a juvenile-family crisis petition, may be adjudicated delinquent for violating a court order to"obey the rules" of home and school. We now answer that question in the negative and reverse the order adjudicating S.S. delinquent for contempt of court, a fourth-degree offense under N.J.S.A. 2C:29-9 if committed by an adult. In so doing, we overrule State in the Interest of J.S., 266 N.J. Super. 423 (Ch. Div. 1993).

Truancy and running away from home are known as"status offenses,"*fn1 which are by definition uniquely applicable to a minor. They would not be crimes if committed by an adult. Such conduct apparently brought S.S. and her family within the court's"crisis" jurisdiction in the first place.

The thrust of our decision is that it is contrary to the legislative intent expressed in the New Jersey Code of Juvenile Justice, and unjustified under existing statutory and common law, for a juvenile status offender to be adjudicated delinquent on account of N.J.S.A. 2C:29-9 without having committed any other act prohibited by the Code of Criminal Justice. Such an adjudication has been described as"bootstrapping." See, e.g., Levesque and Tomkins, supra, 9 Psychol. Pub. Pol'y & L. at 240; Maggie L. Hughey, Holding a Child in Contempt, 46 Duke L.J. 353, 377-78 (1996).

S.S. (born January 16, 1986) and her family originally came to the court's attention on August 23, 2001, on the complaint of S.S.'s parents that she was staying out late and running away. A juvenile-family crisis petition was filed pursuant to N.J.S.A. 2A:4A-83. S.S. was released to her parents with referrals for counseling and a curfew. In March 2002, the family returned to the court with similar complaints by the parents. A referral to the Division of Youth and Family Services (DYFS) was made, and on March 14, 2002 the Family Part judge issued the order that formed the basis for the contempt charge at issue.

The March 14 order included preliminary findings that S.S."failed to obey Rules of Home and Rules of School [and] that these problems continue despite effects [sic] of Parents, School, and this Court [and] a need to enter this ORDER to have [S.S.] comply with rules of home and school and to cooperate with treatment." The Order explicitly required that S.S."obey all Rules of Home, Rules of School and must attend counseling sessions" on two specific dates. The order also included a provision that proof of its violation would result in a criminal contempt complaint pursuant to N.J.S.A. 2C:29-9a. S.S. signed an acknowledgement of the terms of the order, including:"I understand that a single violation of a rule of Home, School, or a single failure to cooperate with treatment is the only act necessary for the filing of a Criminal Contempt charge."

On May 7, 2002 the judge ordered psychological and psychiatric evaluations.*fn2 On May 22, a complaint by S.S.'s parents led to a juvenile delinquency complaint signed by a member of the Pennsauken Police Department, charging S.S. with contempt under N.J.S.A. 2C:29-9a for"failing to come home on 5-20-02 contrary to... the order [of March 14, 2002]." The complaint came before the Family Part judge on June 18, 2002. Based upon a stipulation that S.S. in fact had not come home on May 20, the judge found S.S. in contempt of court and adjudicated her delinquent. Thereafter, on June 25, S.S. herself told the judge:

Yeah, I'm okay. Since I'm doing really good in the YES Program, I would like to be in the YES Program. Since I'm having no violation, I'm making it good there.

The judge placed S.S. in the custody of DYFS and approved her continuing placement in a Youth Empowerment Services (Y.E.S.) facility.*fn3 On July 30, 2002, the judge imposed a two-year probationary term, with the following conditions:

that she cooperate with the placement that the Division has undertaken to date, and to continue to cooperate with them, attending all counseling sessions, that [S.S.] follow up and attend school as to be developed for her by the Division and the Division representatives. [S.S.] obviously needs to obey the rules in any school that she's in, and when she's home, she should also obey the rules there, without drugs, alcohol or other arrests.

The factual record before us is meager. These are the facts we glean from the Juvenile Pre-Disposition Report. S.S. was the oldest of four children residing with their married parents. Her siblings were a fifteen-year-old sister, a fourteen-year-old brother, and a four-year-old brother. The family lived in a large house in Pennsauken, and one of S.S.'s grandmothers lived with the family. S.S.'s parents, who are described as immigrants, owned an ethnic restaurant. S.S. had no medical problems. However, a psychological evaluation completed on April 30, 2002 at the court's request led to a report by Dr. Martin Richter, Ed.D.

Dr. Richter described S.S. as"pleasant, cooperative and talkative." She reported running away from home once in 2001 and twice in 2002,"in order to be with her friends in Philadelphia." She reported that her parents"hit her with a belt or a coat hanger when she talks back to them or when she will not do what they want her to do [and] this started when she would leave the house to be with her friends." She denied that they mistreated her before she ran away, and said she loved them. She also reported frequent consensual sex with several partners and claimed she had sex to"get back" at her parents. S.S. told Dr. Richter that she had been depressed for more than a year,"always keeps her feelings inside and that nobody in her family has any idea of her feelings." She also reported sometimes fighting with her parents all day.

Dr. Richter's testing revealed an IQ of 87, which he described as"an under estimation of [her] intellectual potential." The doctor's recommendations for S.S. were:

1. Antidepressant medication should be considered for [S.S.]. She has had a long term depression that is unlikely to be responsive to psychotherapy alone.

2. [S.S.] was verbal and forthcoming during the interview portion of the evaluation. She appears amenable to individual psychotherapy.

3. [S.S.] should have access to group psychotherapy. She feels isolated from her peers, but she desires social interaction.

4. If [S.S.] is placed in a residential program, it should be physically close enough for her family to participate in the program and aftercare.

Thus the record reveals a depressed and unhappy sixteen-year-old who repeatedly ran away from home and failed to attend school, who appeared to need and be amenable to individual and group therapy, and possibly to require anti-depressive medication.

At the outset, we note that S.S. does not challenge her placement in the Y.E.S. program, but only the adjudication of delinquency. S.S. was not placed in a secure detention facility where adjudicated delinquents, or juveniles facing charges that could lead to an adjudication, are placed. Nonetheless, once adjudicated delinquent, she faced that risk.*fn4 She ...


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