Opinion
DOCKET NO. A-0778-13T4
06-27-2016
STATE OF NEW JERSEY IN THE INTEREST OF J.H., A Juvenile.
Joseph E. Krakora, Public Defender, attorney for appellant J.H. (Alison S. Perrone, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent State of New Jersey (Samuel Marzarella, Chief Appellant Attorney, of counsel; John C. Tassini, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FJ-15-1085-13 and FJ-15-1421-13. Joseph E. Krakora, Public Defender, attorney for appellant J.H. (Alison S. Perrone, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent State of New Jersey (Samuel Marzarella, Chief Appellant Attorney, of counsel; John C. Tassini, Assistant Prosecutor, on the brief). PER CURIAM
J.H. appeals from a final adjudication of delinquency for violation of probation. We affirm.
On September 10, 2010, an Ocean County juvenile complaint charged J.H. with acts of delinquency which, if committed by an adult, would constitute first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Pursuant to a plea agreement, a Family Part judge imposed a three-year period of probation and ordered J.H. to "attend and complete" the Pinelands Residential Treatment Community Home (Pinelands) program and aftercare.
On April 27, 2012, the Ocean County Probation Division (OCPD) charged J.H. with four counts of violating the terms and conditions of his probation. The charge was subsequently amended to include an additional count. The statement of charges alleged that J.H.: "failed to cooperate with the program rules and regulations" by possessing contraband, (count one); "failed to cooperate with treatment contract" for receiving and concealing inappropriate letters and pictures, (count two); "failed to cooperate in counseling" for resisting the therapeutic model of treatment, (count three); "failed to meet special conditions of probation" for attempting to develop a "sexual and emotional relationship with a younger more vulnerable peer[,]" (count four); and "failed to cooperate in examination/testing/counseling/treatment" and "failed to complete sex offender treatment[,]" (count five).
At a hearing on June 26, 2012, J.H. was adjudicated delinquent on all counts except count three. On July 12, 2012, the judge imposed a suspended four-year term at the Juvenile Justice Commission (JJC), subject to J.H.'s "successful completion" of a different treatment program at Capital Academy (Capital). The judge emphasized that J.H. would be sent to JJC if he was not "fully compliant with the course of treatment . . . ." The judge also warned J.H. that there would be a "[zero-tolerance] policy[,]" that this was his "last chance," and that he needed to "fully and completely" engage in treatment.
J.H. began treatment at Capital on July 13, 2012. The contract between J.H. and Capital provided that treatment was expected to last "[nine to twelve] months," although the "discharge date may be extended based upon behavior and response to treatment." There was no set termination date for the program.
Numerous progress reports regarding J.H.'s period of treatment at Capital from July 8, 2012 through February 22, 2013, were submitted by J.H.'s Mental Health Clinician, Jayelemn J. Arrieta, M.S. In his reports, Arrieta noted both positive and negative fluctuations in J.H.'s progress and commitment to treatment. J.H.'s "ratings" fluctuated between "[c]ougar" and "[r]eact[.]" J.H. did attain some progress in treatment and at times exhibited candor. However, while there was occasional progress in J.H.'s treatment, Arrieta stated in a January 11, 2013 report that "[J.H.] dismisses certain behaviors that are . . . and will become lapse and relapse behaviors if he continues to follow the negative cycle. . . . There clearly is an avoidance to deal with the internal issues that can only be treated with him being open and honest."
Capital uses a "force field rating system" to rate a resident's progress in treatment. The five ratings - listed from most desirable to least - are executive, cougar, pledge or react, neutral, and concern. According to the system, "[a] student receives a positive rating when he actively participates in his treatment, he consistently behaves in a pro-social manner, [and] he develops trusting relationships in his peers and staff members." In contrast, a student "receives a negative rating when he actively opposes treatment, he behaves in an anti-social manner and he is untrustworthy." --------
Throughout J.H.'s treatment, Arrieta frequently cited a need for his increased participation in the treatment program. Arrieta explained in a January 18, 2013 report that while J.H. was "actively involved" in therapy sessions, he needed "to put forth more effort in comprehension of concepts[,]" and often became "very presumptuous and want[ed] to skip through treatment as if [it was] just an assignment and [got] frustrated when he [was] expected to retain it and break it down in individual and group therapy sessions."
As a point of concern, Arrieta indicated that J.H. "often [took] his successes and achievements as a pass to slack off or deviate from clearly stated safety measures" and therefore "want[ed] to breeze through certain parts in treatment where he clearly start[ed] to tak[e] unnecessary risks such as staying around younger peers." In his February 22, 2013 report (the final report in the record), Arrieta noted J.H.'s disclosure that his "main attraction [was] towards minors" specifically "towards prepubescent but [he would] try to keep it within the age range of [ten to sixteen]."
At a probation review hearing on December 14, 2012, the judge expressed concern that J.H. was not being "honest" or "open[,]" and was "not participating in good faith . . . ." The judge advised J.H., "if there is not satisfaction that you are giving it the effort, that you are getting it and participating in good faith, then you are going to be violated on your probation." J.H. was again warned that he needed to demonstrate "change[,] . . . sincere effort[,] . . . real motivation[,] . . . participation[,] . . . [and] honesty" or he would be sentenced to the JJC.
At a second probation review hearing on January 22, 2013, the judge reminded J.H. that he must be "willing to engage in the therapy" and "be open with [Arrieta] and willing to work on those issues." The judge noted that J.H. had made little progress in his clinical treatment and expressed concerns that the most recent improvement was only to avoid being transferred to JJC given the upcoming court date.
On March 4, 2013, the OCPD charged J.H. with violating probation. Count one alleged that J.H. failed to cooperate in treatment, specifically citing Arrieta's February 22, 2013 report that J.H. "remain[ed] in denial in certain aspects of treatment[,]" and J.H. failed to "complete[] [the] residential treatment." Count two charged J.H. with failing to meet the special conditions of probation, in particular:
on February 1, 2013, [the] Senior Probation Officer instructed [J.H.] to successfully engage and cooperate in sexually abusive behavior therapy at [Capital] and on February 22, 2013, [Arietta] of [Capital], reported the juvenile remains in denial in certain aspects of treatment and the juvenile had recently disclosed that his main attraction sexually is towards "prepubescent but will try to keep it within the age range of [ten to sixteen]."The report annexed to the charging document was authored by OCPD Officer Robert Phillips. Phillips provided a detailed description of both J.H.'s progress and his noncompliance with treatment. He also reported that he conducted field visits to Capital to encourage J.H. to increase participation, and to review his conditions of probation. Phillips concluded in his report that J.H.'s "adjustment to [p]robation has been poor[,]" and J.H. "failed to engage in sexually abusive behavior therapy" and "has violated his conditions of [p]robation . . . ."
Trial began on April 29, 2013, and ended on June 13, 2013. The trial judge heard testimony from Arrieta and Phillips. The judge found both Phillips and Arrieta to be "entirely credible[.]" The judge held that both witnesses' testimony established that J.H. was not compliant with "the most essential aspects of the treatment[,]" and was "no closer to completing the residential treatment . . . than he was in July of 2012." The judge found that J.H. was frustrated and resentful regarding treatment, and his disclosures regarding his attraction to younger peers was "the final straw" as it showed "no remorse, no guilt[,]" nor "any kind of willingness to work[.]" Although such disclosures were part of the program, the judge found that even after almost eight months in the program, "[J.H. is] still maintaining, he still has that sense of entitlement, and he is not willing to work on the treatment."
The judge emphasized that while there was no specified end-date for the program, the court's main goal "was for [J.H.] to be willing to work on it, to actively participate and cooperate with his treatment plan[,]" but aside from the "little bit of lip service" to the court by way of "disclosing a few other incidents," J.H. was "still not willing to work on it." Therefore, the judge concluded that the State "clearly met its burden by a preponderance of the evidence that [J.H.] inexcusably failed to . . . comply with the substantial requirement imposed as a condition of the order[.]" The judge revoked J.H.'s probation and ordered that J.H. be committed to the JJC for four years. This appeal followed.
J.H. raises the following argument on appeal:
POINT I
THE COURT ERRED IN FINDING THE JUVENILE GUILTY OF A VIOLATION OF PROBATION WHEN THERE WAS INSUFFICIENT EVIDENCE THAT THE JUVENILE HAD INEXCUSABLY VIOLATED A SUBSTANTIAL REQUIREMENT OF HIS PROBATION.
A trial court's factual findings are "binding on appeal when supported by adequate, substantial, credible evidence." State ex rel. W.M., 364 N.J. Super. 155, 165 (App. Div. 2003). Our deference to those findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). However, where the issue presented is one of law, "our review is 'de novo and we owe no deference to the trial [judge]'s interpretation of the law and the legal consequences that flow from established facts.'" State v. Stalter, 440 N.J. Super. 548, 553 (App. Div.) (quoting State v. Bradley, 420 N.J. Super. 138, 141 (App. Div. 2011) (internal quotations omitted)), certif. denied, 223 N.J. 355 (2015).
A charge of violation of probation is not a criminal prosecution. State v. Thomas, 356 N.J. Super. 299, 308 n.2 (App. Div. 2002); State v. Reyes, 207 N.J. Super. 126, 134 (App. Div.), certif. denied, 103 N.J. 499 (1986). Thus, to sustain the charge, the court need only be satisfied by a "preponderance of the evidence [the] defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of probation." State v. Jenkins, 299 N.J. Super. 61, 73 (App. Div. 1997) (quoting Reyes, supra, 207 N.J. Super. at 134-37). We review a trial court's decision to revoke probation under an abuse of discretion standard. State v. Peters, 129 N.J. 210, 218 (1992); State v. Moretti, 50 N.J. Super. 223, 234-235 (App. Div. 1958).
J.H. contends the revocation of probation was not supported by sufficient evidence. In light of the deference we furnish to the trial judge, and after consideration of the extant record and controlling decisions of law, we find no basis to disturb the judge's decision.
Unlike the probation system for adult offenders, "[t]he juvenile justice system places much greater emphasis upon rehabilitation." State ex rel. S.T., 273 N.J. Super. 436, 444 (App. Div.), certif. denied, 138 N.J. 263 (1994). "The Juvenile Justice Code (Code), N.J.S.A. 2A:4A-20 to -90, governs juvenile delinquency matters." State ex rel. C.V., 201 N.J. 281, 294 (2010). "Once the court adjudicates a juvenile to be delinquent, the Code permits the court to order incarceration or, in lieu of incarceration, any of the twenty enumerated dispositions under N.J.S.A. 2A:4A-43(b)." Id. at 295. Compliance with a rehabilitative treatment program is one such enumerated disposition. S.T., supra, 273 N.J. Super. at 444-45; see N.J.S.A. 2A:4A-43.
N.J.S.A. 2A:4A-43(b)(3) provides courts with a "vast amount of flexibility in setting conditions of probation . . . and allows the court to construct requirements designed to secure appropriate behavior from the juvenile while obtaining the individualized rehabilitative and therapeutic help needed by the particular child." C.V., supra, 201 N.J. at 297. When a juvenile violates probation, the court retains jurisdiction to substitute any other disposition which it might have made originally. N.J.S.A. 2A:4A-45(b).
Under the probationary rules for adult offenders, when "the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the [probation] . . . [the court] may revoke the suspension or probation and sentence or resentence the defendant[.]" State v. DiAngelo, 434 N.J. Super. 443, 455 (App. Div. 2014) (quoting N.J.S.A. 2C:45-3(a)(4)). This concept is also applicable to a juvenile who has "violated or imperfectly performed" the conditions of probation. C.V., supra, 201 N.J. at 298.
This does not mean that "[a] probationer is . . . expected or required at once to achieve perfection." Moretti, supra, 50 N.J. Super. at 248. "[N]ot every violation of a condition of probation is an inexcusable failure to comply with a substantial requirement[.]" Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:45-3 (2015-2016). Nevertheless, violations justifying revocation have been found where a probationer is discharged from the program, fails to report to the probation officer, fails to follow instructions or program rules, or fails to attend treatment regularly. See, e.g., C.V., supra, 201 N.J. at 287-90; S.T., supra, 273 N.J. Super. at 439; Peters, supra, 129 N.J. at 214; Reyes, supra, 207 N.J. Super. at 132-33.
Here, there is ample evidence in the record to support the determination by both Phillips and the judge that J.H.'s performance was inadequate and constituted a violation of probation. J.H. was provided with advisement by the court and his probation officer on multiple occasions regarding his lack of participation and progress in essential areas of his treatment. Despite these advisements and despite being given the opportunity to improve, J.H. failed to engage in treatment in a manner that would justify its continuation as an alternative to incarceration. Although J.H.'s participation and progress "fluctuat[ed]" and at times he showed improvement, the record reflects that J.H. resented treatment, was reluctant to fully engage in therapy, and had a tendency to "overlook and not consider" the importance of key elements of his treatment. Significantly, despite the treatment provided, J.H. continued to express an attraction to "prepubescent" minors.
Based on his own lack of performance on probation, J.H. imperiled the opportunity presented to him. As such, we hold the decision to remove that opportunity from him did not constitute an abuse of discretion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION