Opinion
DOCKET NO. A-3127-14T2 DOCKET NO. A-3167-14T2
06-05-2015
STATE OF NEW JERSEY IN THE INTEREST OF T.S. STATE OF NEW JERSEY IN THE INTEREST OF E.M.
Rutgers Children's Justice Clinic, attorneys for appellants T.S. and E.M. (Sandra Simkins, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondents New Jersey Juvenile Justice Commission and Department of Corrections (Lisa A. Puglisi, Assistant Attorney General, of counsel; Alex J. Zowin, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION MOTION NOS. M-6992-14 M-7006-14 M-6993-14 M-7005-14 Before Judges Reisner and Haas. On appeal from the New Jersey Juvenile Justice Commission. Rutgers Children's Justice Clinic, attorneys for appellants T.S. and E.M. (Sandra Simkins, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondents New Jersey Juvenile Justice Commission and Department of Corrections (Lisa A. Puglisi, Assistant Attorney General, of counsel; Alex J. Zowin, Deputy Attorney General, on the brief). PER CURIAM
We have consolidated these two appeals for the purposes of this opinion, and we now summarily remand both appeals to the Juvenile Justice Commission for further proceedings as set forth below.
The juveniles, E.M. and T.S., were transferred from a Juvenile Justice Commission (JJC) facility to a Department of Corrections (DOC) prison on October 18, 2013, without the due process hearings required by our opinion in In re J.J., 427 N.J. Super. 541, 557-58 (App. Div. 2012). See In re Y.C., 436 N.J. Super. 29, 37 (App. Div. 2014) (invalidating JJC's interim transfer policy as inconsistent with J.J.). Ironically, they were both transferred to DOC custody on the same day that Y.C. was transferred. Efforts by their counsel to obtain a due process hearing, a transfer back to JJC custody, or an explanation for the JJC's refusal to transfer them back were to no avail until this court ordered the JJC to issue a decision on the re-transfer requests.
We issued temporary remand orders on March 26, 2015, setting an April 27, 2015 deadline for the agency to issue written final decisions on the juveniles' applications for a transfer back to JJC custody. The JJC issued its decisions on April 27, 2015, and the juveniles then filed motions with this court for a transfer back to the JJC or for a due process hearing.
Having reviewed the record presented to us on these most recent motions, we conclude that both juveniles are entitled to a due process hearing on the reasons for their initial transfers and their requests to be transferred back to the JJC. Contrary to the JJC's position on these motions, it was implicit in our Y.C. decision that the agency has authority to transfer a juvenile from DOC custody back to JJC custody if the juvenile's improved conduct warrants such a transfer. In Y.C. we ordered that the juvenile be given a hearing and directed as follows:
At that hearing, Y.C. shall have the right to be represented by counsel. Both sides shall have the right to present evidence on these issues: the reasons why Y.C. should or should not have been transferred to an adult prison, consistent with the standards set forth in the juvenile transfer statute, N.J.S.A. 52:17B-175(e); Y.C.'s current conditions of confinement, including whether he is being housed with adult-convicted inmates and whether he is being provided with rehabilitative services comparable to those he would receive in a JJC facility; and whether, given his history of conduct at the adult prison, it may be appropriate to transfer him back to a JJC facility, even if his initial transfer to an adult prison was justified.
[Id. at 39-40.]
Accordingly, we summarily remand both of these cases to the JJC with direction to conduct, separately for each juvenile, an expedited evidentiary hearing on the issues stated above. We acknowledge that the JJC has adopted regulations, N.J.A.C. 13:91-1.1 to -3.13, which were intended to comply with Y.C. See 46 N.J.R. 1896(b) (Sept. 2, 2014). Those regulations have been challenged, In re Adoption of N.J.A.C. 13:91, No. A-0847-14, and that appeal is pending. Without prejudging the validity of the regulations, we will give the JJC the option on remand of either conducting the hearings pursuant to those regulations or transferring the matters to the Office of Administrative Law for hearings. However, if the JJC chooses to conduct the hearings pursuant to its regulations, the hearings must be recorded, either by a court reporter or through recording equipment, such that a transcript of the hearings can be produced for appellate review.
Unless the juvenile consents to or requests an extension of time, the proceedings on remand shall be completed and a final decision issued within ninety days of the date of this order. We do not retain jurisdiction.
Remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION