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State of New Jersey In the Interest of

April 19, 2011

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


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Camden County, Docket No. FJ-04-2349-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 16, 2011

Before Judges Cuff and Fisher.

O.S., a juvenile, having been adjudicated delinquent and committed to the Juvenile Justice Commission (JJC) for a term of fifteen months, appeals from the denial of his motion for recall. We affirm.

On February 27, 2009, Judge Dortch adjudicated O.S. delinquent for acts which, if committed as an adult, would constitute conspiracy to distribute a controlled dangerous substance, contrary to N.J.S.A. 2C:5-2 and 2C:35-5. He was admitted to the JJC Juvenile Medium Security Facility (JMSF) on May 31, 2009. In his recall motion, O.S. asserted that he was assaulted by other residents on two occasions. He also related that a riot occurred at the JMSF between North Jersey and South Jersey residents on December 29, 2009, that he suffered injuries during this altercation, and that staff knew that tensions were running high between these groups and did nothing to prevent the event. He also reported that he was assaulted by other residents in April 2010 and suffered a fractured jaw. He complains that not only did he experience a delay in receiving appropriate treatment but also was isolated from other residents. According to O.S., the isolation deprived him of educational opportunities and regular visits from mental health, anger management staff and social workers. He also could not call home, and staff spurned multiple requests to call his legal representatives. In addition, O.S. asserted he had not received prescribed ADHD medication.*fn1

O.S. asserted the JJC had legal obligations to him that it had not met, including his right to adequate protection from harm, adequate mental health care, and access to legal representation. He claimed that these actions or omissions by the JJC violated his constitutional rights under the Eighth and Fourteenth Amendments, and the right to adequate mental health care. He also claimed that the JJC interfered with his right to counsel and violated regulations governing the use of room restriction. O.S. requested that the court "grant a recall hearing to evaluate the safety of [O.S.] remaining at JMSF."

Judge Dortch declined to recall O.S. The judge held that he retained jurisdiction to recall an adjudicated delinquent committed to the custody of the JJC, if the record suggested rehabilitation and a need to modify the disposition. On the other hand, he held that he did not retain jurisdiction to oversee a placement determination considered appropriate by the JJC. The judge observed that O.S. and other similarly situated juveniles have a civil remedy to address the conditions of any placement.

On appeal, the juvenile raises the following argument:

POINT I

I. WHEN UNSAFE FACILITY CONDITIONS THREATEN THE REHABILITATION OF THE CHILD, THE COMMITTING JUVENILE COURT HAS JURISDICTION TO MODIFY DISPOSITION

A. THE JUVENILE CODE EXPRESSLY GIVES THE COMMITTING JUVENILE COURT JURISDICTION TO MODIFY A DISPOSITION

B. THE JURISDICTION OF THE JUVENILE COURT IS DESIGNED TO BE FLEXIBLE, EXPANSIVE AND PRAGMATIC IN ORDER TO ...


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