On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FJ-04-1566-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2008
Before Judges Winkelstein and Chambers.
The New Jersey Division of Youth and Family Services (DYFS)*fn1 appeals from the trial court order entered in this juvenile delinquency case requiring it to provide sexual offender treatment to J.S.
J.S. was charged as a juvenile with sexually assaulting his sister. The conduct occurred when he was between the ages of fourteen and sixteen and the victim, his sister, was under the age of thirteen. By the time that he was charged with these offenses and the matter was brought before the juvenile court, J.S. was twenty-one years old, working, and studying to become a nurse.
As part of a plea arrangement, he pled guilty in juvenile court to sexual assault in violation of N.J.S.A. 2C:14-2(a)(2)(a), second degree, with the understanding that he would be placed on probation, that a psychological evaluation would be conducted and he would have to follow all of its recommendations, and that he would have no contact with the victim. DYFS was ordered to provide a sexual offender evaluation of J.S., which it did.
Both a psychological evaluation and a psychiatric evaluation of J.S. were conducted. The psychologist found that J.S. was "at low risk for re-offending," and indicated that J.S. could benefit from individual counseling. The psychiatrist found no need for psychiatric treatment and stated that J.S. did not appear to be a threat to himself or others. He also stated that J.S. could benefit from counseling.
Despite these evaluations, at the sentencing on November 14, 2007, the prosecutor and the defense agreed that some outpatient sex offender treatment was appropriate which should be provided by DYFS. The trial court concurred, stating:
My responsibility is not only to this victim but other potential victims. And even though the risk is low, the nature of the offense is... of sufficient concern to me that low is not low enough, and I believe that under the circumstances, a period of probation of three years is appropriate conditioned upon his successful completion and continuation with sex offender treatment, and that should be a program through a licensed professional able to provide that treatment.... I do not feel comfortable legally or morally to suggest that in a case like this, under these circumstances with this kind of an offense, that this individual should not receive additional follow up care. Not only for the sake of the individual, who I can sentence that period of probation even until he is over twenty-one, and I have jurisdiction over him, but also for the protection of [the facility] he is working at.
DYFS argued that the trial court had no authority to order it to provide these services to J.S. because he was over the age of twenty-one. The prosecutor and defense counsel argued otherwise. Rejecting DYFS's objections, the trial court entered the order of November 14, 2007, ordering DYFS to provide sex offender treatment to J.S., and to provide funding for the treatment if J.S.'s insurance did not cover its cost. DYFS has appealed this ruling.
On appeal, DYFS raises the ...