On appeal from the Juvenile Justice Commission and the Department of Corrections.
The opinion of the court was delivered by: Waugh, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz, and Waugh.
The opinion of the court was delivered by
This case requires us to determine whether procedural due process rights must be accorded to an adjudicated juvenile prior to transfer from a juvenile facility operated by the Juvenile Justice Commission (JJC) to an adult correctional facility operated by the Department of Corrections (DOC) pursuant to the provisions of N.J.S.A. 52:17B-175(e). That statute permits such transfers of a juvenile "who has reached the age of 16 during confinement and whose continued presence in the juvenile facility threatens the public safety, the safety of juvenile offenders, or the ability of the commission to operate the program in the manner intended." The State takes the position that no due process rights of any kind, including notice and an opportunity to be heard, are required. We disagree and reverse.
We discern the following facts and procedural history from the record on appeal.
In December 2010, the Family Part adjudicated J.J., to whom we refer by the pseudonym Jones, a delinquent and committed him to the custody of the JJC for a period of four years for conduct that, if committed by an adult, would constitute one count of first-degree attempt, contrary to N.J.S.A. 2C:5-1, one count of first-degree robbery, contrary to N.J.S.A. 2C:15-1(a)(2), and one count of fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a).*fn1 The JJC initially placed Jones in the New Jersey Training School (NJTS) in January 2011. He was subsequently moved to the Juvenile Medium Security Facility (JMSF) in Bordentown.
For the thirty-eight-week period during which his behavior was evaluated under the JJC's "weekly rating system" at both facilities, Jones met "behavioral standards" for twenty-six weeks, but "fail[ed] to meet behavioral standards" for twelve weeks. While at JMSF, Jones met "behavioral standards" for twenty weeks, including the three weeks prior to his transfer to the custody of the DOC, and "fail[ed] to meet behavioral standards" for seven-and-one-half weeks.
Jones was charged with "assault on staff" for punching a JJC corrections officer in the face on October 13, 2011. The alleged assault took place after the officer ordered him to return to his housing unit and then attempted to prevent Jones from entering the vocational area. Jones claimed that he had been provoked by the officer, and that he acted in self-defense when the officer hit him. The officer suffered slight swelling, and complained of numbness and pain in his left upper cheek.
Jones was charged with disciplinary infractions and was found guilty by a hearing officer on October 14. The hearing officer imposed five days of room restriction as discipline for the infractions. Jones filed an immediate administrative appeal. He placed a check-mark next to "plea of leniency" on the portion of the appeal form that asked why he was requesting an appeal. He wrote: "I want to have [an] Appeal on this case." The hearing officer's decision was upheld, without explanation, the same day. Jones did not file a timely appeal from that determination.
At the same time, without any notice to Jones, the JJC staff began a review of his classification to determine whether he should be transferred to the custody of the DOC. The Juvenile Reception Classification Committee (JRCC) recommended that Jones be transferred. The report making the recommendation provided as follows:
This report is being written to request the transfer of Resident [Jones] to the Department of Corrections.
Resident [Jones] was received at the New Jersey Training School (NJTS) Reception Unit as a new admission on January 4, 2011. He was sentenced to an indeterminate 4-year term for Criminal Attempted Robbery and Resisting Arrest. Resident [Jones] is from Cumberland County. As of this writing, he has a Tentative Release Date of December 29, 2013.
During this commitment, Resident [Jones] received a total of 14 disciplinary charges. It should be noted however that eight of these charges were of [an] aggressive nature. Resident [Jones] has received four charges for Fighting, one for Unauthorized Physical Contact (bit a correction officer on the hand), one for Assault on a Staff Member and one for Attempting to Assault Another Resident. Additionally, he received two charges for Disrupting the Security and Order of the Facility. As of this writing, Resident [Jones] has served a total of 26 days in room restriction.
While at NJTS, Resident [Jones] did receive a total of six disciplinary charges. The first three were for Fighting with his peers. Resident [Jones'] disciplinary charges began to exacerbate in nature, as on April 7, 2011 he received an Assault on Staff charge for shooting a rubber band into the eye of a female Senior Youth Worker. Resident [Jones] claimed that the incident was an accident, but the report writer clearly indicated the rubber band shot was fired directly after he called her by name to gain her attention. This incident along with a charge for hiding his medication resulted to his transfer to the Juvenile Medium Security Facility (JMSF) on April 28, 2011. This speaks directly to his arrogant attitude and insolent behavior.
After being placed on the Behavior Accountability Unit (BAU) for six days, Resident [Jones] was afforded the opportunity to reside on the self-contained H-Wing. This unit has a smaller population and more staff assigned and it was the feeling of staff/administration that this unit might be more beneficial for Resident [Jones]. It should also be noted that while at NJTS, he resided on HU-11, which is the mirror image of H-Wing at JMSF. Resident [Jones] did not do well there either.
It was only five days after arriving on H-Wing, when Resident [Jones] received a charge for Conduct Which Disrupts. He attempted to assault another resident as he was being escorted off the unit by an area supervisor and SA officers. Resident [Jones] exhibits very inconsistent behavior. He has had a number of outbursts in school, treatment teams and family counseling sessions. One incident occurred in the social worker's office on June 28, 2011. A disagreement between he and staff propelled the resident into a fury that led to him directing abusive language and threats to the social worker, superintendent and his own mother who was on the phone at the time. He did receive an Abusive Language charge for that incident.
On July 22, 2011, he received an Unauthorized Physical Contact charge. In this instance, he lunged at another resident throwing punches to his face and body because of a verbal exchange. Resident [Jones'] emotions manifest themselves as hostile language, threats and other forms of aggressive behavior. Resident [Jones] is older and tries to intimidate his peers, as he has the physical size (6'2" and over 200 lbs.) commensurate to an adult.
Resident [Jones'] actions have continued to wreak havoc. On July 22, 2011, he received Disrupting Security and Order of the Facility, Unauthorized Physical Contact and Abusive Language charges. At this time, Resident [Jones] did bite an officer. In addition, he attempted to harm, threaten and intimidate potential witnesses. Resident [Jones'] behaviors continue to make him a threat to the safety and security of, not only residents, but staff as well. On August 7, 2011, Resident [Jones'] aggressive behavior was once again noted as he pushed another resident out of his way, which resulted in a fighting charge. Just recently, on October 13, 2011, Resident [Jones] received an Assault on Staff charge for assaulting a Correction Officer by punching him in the face. This incident led to the officer being transported to the hospital for medical attention.
Resident [Jones'] behaviors are not getting better as he continues to operate as a "loose cannon" who has demonstrated he will do anything at anytime against anyone. He is very comfortable getting out of control and relishes that role. Resident [Jones] views himself as untouchable. He needs to be transferred to the adult complex to serve as an example to the other residents who may try to emulate his example. We have made every effort to get Resident [Jones] to conform to programs offered him in the juvenile setting. He has not done so.
We at this facility are recommending that Resident [Jones] be accepted in an adult facility based upon the following:
2. Aggressive and assaultive history: Resident has received four fighting charges, and two assault on staff offenses, during his commitment.
3. Resident has not conformed to program interventions made available to him in the juvenile setting despite being placed in the most optimum (Housing Unit 11 and H-Wing) setting for him.
4. Resident has been before the
Parole Board three times and has yet to receive a parole reduction.
5. Resident needs to serve as an example for others who exhibit abhorrent behavior.
6. Time to Serve: Resident has a four-year tem with a Tentative Release Date of December 29, 2013.
7. Resident has the physical size and stature commensurate to persons housed in the adult complex.
8. Based upon all the above, this resident is no longer suitable for confinement within the Juvenile Justice Commission.
On October 26, the JJC recommended the transfer and forwarded the request to DOC. On November 1, the DOC Commissioner approved the transfer. Jones was not notified of the review, the JRCC's recommendation, the JJC's approval of the ...