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State ex rel J.S.


December 12, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FJ-04-1566-08.

Per curiam.



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 following points:



A. DYFS and DCF's Jurisdiction, Authority, Responsibility and Resources for Providing Services to Individuals Over the Age of 21 Years

B. The Juvenile Code Grants the Trial Court No Power to Order DYFS and DCF to Serve Individuals Over the Age of 21 Over Whom these Agencies Have No Jurisdiction, Authority, Responsibility or Budgeted Resources



Since this appeal presents a question of law, our review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The New Jersey Code of Juvenile Justice (Juvenile Justice Code), N.J.S.A. 2A:4A-20 to-49, which governs juvenile delinquency matters, defines a juvenile as a person under the age of eighteen. N.J.S.A. 2A:4A-22. However, the Legislature has extended the scope of the Juvenile Justice Code to persons beyond the age of eighteen in circumstances where the person committed an offense when under the age of eighteen but is over the age of eighteen when brought into court on the charge.

N.J.S.A. 2A:4A-25. In that event, the charge falls within the jurisdiction of the juvenile court. Ibid.

The Legislature has indicated that one of the purposes of the Juvenile Justice Code is "to remove from children committing delinquent acts certain statutory consequences of criminal behavior, and to substitute therefor an adequate program of supervision, care and rehabilitation, and a range of sanctions designed to promote accountability and protect the public."

N.J.S.A. 2A:4A-21(b). This goal also applies to persons over the age of eighteen who are being tried as juveniles. See In re J.M., 222 N.J. Super. 597 (App. Div.) (requiring the Family Part to reconsider referral of the case to criminal court under N.J.S.A. 2A:4A-26 after a no-bill by the grand jury on the murder charge and noting, although the defendant was then over the age of eighteen, that a harsh criminal penalty was "contrary to the clear legislative policy favoring Family Part disposition of charges against juveniles" unless the referral statute applies), certif. denied, 111 N.J. 634 (1988). Thus, J.S., as an adjudicated delinquent, falls within the protective scope of the Juvenile Justice Code, despite his age.

As part of its effort to provide protection and rehabilitation to adjudicated delinquents, the Juvenile Justice Code offers a range of dispositions that may be imposed in place of the criminal penalties that would be applicable to adults for the same conduct. See N.J.S.A. 2A:4A-43(b) (setting forth the dispositions available to the court after the juvenile has been adjudicated delinquent). The statute specifically allows the court to have DCF provide services to an adjudicated delinquent. N.J.S.A. 2A:4A-43(b)(5). Thus, under the Juvenile Justice Code, as an adjudicated delinquent, J.S. was subject to any of the dispositions enumerated in the Juvenile Justice Code, including services from DCF and DYFS.

We acknowledge that, generally, DYFS's services are limited to children under the age of eighteen. The statute governing DYFS defines "child" as one under the age of eighteen. N.J.S.A. 30:4C-2(b). In addition, DYFS cites numerous statutory provisions limiting its ability to provide services to children under the age of eighteen in specialized circumstances. See N.J.S.A. 30:4C-27.5 (defining the age of child under the Resource Family Parent Licensing Act, N.J.S.A. 30:4C-27.3 to-15); N.J.S.A. 30:4C-52 (defining the age of children covered by the Child Placement Review Act, N.J.S.A. 30:4C-50 to-65). DYFS may provide certain services to youths between the ages of eighteen and twenty-one where they have received DYFS services when under the age of eighteen. N.J.S.A. 30:4C-1.1(g); see N.J.S.A. 30:4C-2.3 (listing conditions for receiving services from DCF after age eighteen).

In reviewing the Juvenile Justice Code and the DYFS statutes, we must attempt to harmonize their provisions. Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 303-04 (App. Div. 2001) (considering the interplay among the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to-5.4, the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to-5, and the Affidavit of Merit Act, N.J.S.A. 2A:53A-27 to-29, the court stated that "[i]n construing statutes relating to the same subject matter, we must strive to harmonize them"). When interpreting statutes, the "overriding goal has consistently been to determine the Legislature's intent." Rock Work, Inc. v. Pulaski Constr. Co., Inc., 396 N.J. Super. 344, 352 (App. Div. 2007) (quoting Young v. Schering Corp., 141 N.J. 16, 25 (1995)), certif. denied, 194 N.J. 272 (2008). While we will follow the plain language of a statute, where the "'literal application of the language used would lead to results incompatible with the legislative design,' we are obliged'to give effect to the obvious purpose of the Legislature.'" Id. at 352-53 (quoting New Capitol Bar & Grill Corp. v. Div. of Employment Sec., 25 N.J. 155, 160 (1957)). "The spirit of the legislative direction prevails over the literal sense of the terms." Id. at 353.

With respect to adjudicated delinquents, the purpose of the statutes governing DYFS does not conflict with that of the Juvenile Justice Code since both have as a goal the provision of necessary services to adjudicated delinquents. In the statute creating DYFS, the Legislature included a general statement of public policy regarding juvenile adjudicated delinquents, stating: "[t]hat wherever in this State necessary welfare services are not available to children who are dependent or adjudged delinquent by proper judicial tribunal, or in danger of so becoming, then such services should be provided by this State until such times as they are made available by private and voluntary agencies." N.J.S.A. 30:4C-1(d). J.S. is an adjudicated delinquent and falls within the breadth of this policy.

For all of the foregoing reasons, we are satisfied that under the peculiar circumstances of this case, the trial court properly exercised its discretion and required DYFS to provide necessary services to J.S.

We will not address DYFS's argument that it should not have been ordered to pay for the pre-dispositional psychological and psychiatric evaluations. While DYFS did move before the trial court to be relieved of its obligations to provide these evaluations, by the time the motion came before the trial court, the evaluations had been conducted and counsel for DYFS advised the court that the motion was "moot." As a result, the trial court did not rule on the question. Since the issue was not preserved below, it is not properly before us. See Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2009).

DYFS also argues that N.J.S.A. 2A:4A-43(b)(5) does not authorize the court to order a specific service; rather the court may only place the child under DYFS's care and require DYFS to present a service plan. This argument was not raised before the trial court, and therefore is not properly before us. Ibid.

We note that DYFS also contends that the costs of these services to be rendered to J.S. should be charged to Camden County. This argument also was not preserved before the trial court, and Camden County has not been made a party to these proceedings with an opportunity to respond to this argument. Accordingly, we cannot properly resolve that legal question. Ibid.


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