Opinion
No. D–5693–10/11A.
2012-03-14
In the Matter of LUIS T., A Person Alleged to be Juvenile Delinquent, Respondent.
Michael A. Cardozo, Corporation Counsel (Jennifer M. Gilroy Ruiz and Aimee L. Sklar–Calogero, of counsel), New York City, for Presentment Agency. Angela T. Starr, Massapequa Park, Attorney for Respondent.
Michael A. Cardozo, Corporation Counsel (Jennifer M. Gilroy Ruiz and Aimee L. Sklar–Calogero, of counsel), New York City, for Presentment Agency. Angela T. Starr, Massapequa Park, Attorney for Respondent.
Wayne McKenzie, General Counsel and Shauna Weinberg, Associate General Counsel, New York City, for Commissioner of the New York City Department of Probation.
Leslie Abbey, New York City, for Commissioner of the New York City Administration for Children's Services.
Nancy S. Erickson, Brooklyn, N.Y., for The Child Center of New York, Inc.
JOHN M. HUNT, J.
These proceedings involve Luis T., a young man who was found to be a juvenile delinquent by the Family Court, and who was thereafter placed under the supervision of the New York City Department of Probation. Mr. T. was placed on probation under specific conditions which included participation in a community based “alternative to placement” program for adjudicated juvenile delinquents administered by the New York City Administration for Children's Services (“ACS”).
This community based “alternative to placement” program, known as the “Juvenile Justice Initiative” (“JJI”), was created to provide services to adjudicated juvenile delinquents who might otherwise have been placed in an institutional setting based, in part, upon recommendations provided made to the Family Court by the New York City Department of Probation and a Psychologist on the staff of the Family Court Mental Health Services Clinic.
The Administration for Children's Services (ACS) is a New York City agency under the control of the Mayor ( see, N.Y.C. Charter § 615). Prior to November 2001, ACS was part of the New York City Human Resources Administration, which functions as the Department of Social Services in and for the City of New York, except with respect to issues concerning child protection and related functions (Social Services Law §§ 56; 61[1]; N.Y.C. Charter §§ 601; 603).
The Family Court Mental Health Services Clinic is part of the city Health and Hospitals Corporation.
Sadly, during the period in which he was placed under probation supervision, Mr. T. was repeatedly arrested and subsequently indicted for the commission of violent criminal acts. As a result of these arrests, the probation imposed by the Family Court has been revoked and Mr. T. has been placed in the custody of the New York State Office of Children and Family Services. At the present time, Mr. T. is being held on Riker's Island awaiting the resolution of the criminal charges filed against him.
In Queens County, Mr. T. has been indicted for Murder in the Second Degree as a Hate Crime, Murder in the Second Degree, felony Murder, Manslaughter in the First Degree as a Hate Crime, Manslaughter in the First Degree, Robbery in the First and Second Degrees as Hate Crimes, Robbery in the First and Second Degrees, Gang Assault in the First Degree, Assault in the First Degree as a Hate Crime, Assault in the First Degree, Menacing in the Second Degree as a Hate Crime, Menacing, Criminal Possession of a Weapon, and Criminal Possession of Stolen Property (Queens County Indictment No. XXXXX–2011).
An article in the New York Daily News reported that Mr. T. and five accomplices were charged with beating an 18–year–old man to death. According to the article, the perpetrators chased down the victim, “whom they thought was gay”, and then “viciously attacked him” with “a stick, metal pipe, and [a] cane”, “while spewing derogatory remarks” ( Murder Rap for Thugs', Gayhate' motive, New York Daily News, June 24, 2011, at 19). Apparently, the perpetrators stole the victim's “Atlanta Braves baseball cap and sneakers” ( id.), one of the suspects was wearing the baseball hat when arrested “and all the others were covered in blood” ( Party crashers beat teen to death in Queens after yelling anti-gay slurs, NYDailyNews.com, Daily News Crime, available at www.nydailynews.com/news/ny—crime/2011/03/15/2011–03–15, last accessed on May 11, 2011). The death of the victim on March 14, 2011 two days after the incident sparked outrage in the community as well as the attention of public officials ( Family, friends gather at vigil for slain Queens teen Anthony Collao, NYDailyNews.com, Daily News Local, available at www.nydailynews.com/ny—local/2011/03/25/2011–03–25, last accessed on May 11, 2011).
In Bronx County, Mr. T. was indicted for Robbery in the First, Second, and Third Degrees, Attempted Gang Assault in the First Degree, Assault in the First, Second, and Third Degrees, Grand Larceny in the Fourth Degree, Menacing in the Second Degree, Criminal Possession of a Weapon, and Criminal Possession of Stolen Property (Bronx County Indictment No. 00577–2011), and in Kings County, Mr. T. was indicted for Attempted Robbery in the Second and Third Degrees, Assault in the Second and Third Degrees, and Attempted Petit Larceny (Kings County Indictment No. 00754–2011).
It appears that the felony cases in Bronx County and in Kings County have been resolved by plea, although this Court is not in possession of certificates of disposition for those cases. The Queens County indictment is still pending against Mr. T. and his co-defendants, which is why the Court has redacted respondent's last name and certain other identifying information.
While the JJI program was created in response to perceived and actual deficiencies in New York's juvenile justice system, and with the laudable goal of reducing the institutional placement of juvenile delinquents, this case suggests that the use of community based alternative to placement programs should proceed with caution, as the use of these programs can threaten the very safety of those communities. Community based alternative to placement programs undoubtedly have a place in the juvenile justice system, and the Legislature may consider proposals to amend the juvenile delinquency statutes during its current session, as urged by public officials and interested organizations. However, these programs must be implemented in such a way as to minimize the risk that juveniles who remain in the community will continue to engage in escalating criminal or delinquent activity which threatens the safety of the public.
The current push to reform the juvenile justice system is driven in large measure by the asserted cost of the state's system for institutional care of adjudicated juvenile delinquents. Discounting reports in the mass media which draw upon information from official sources, various public officials and quasi-governmental entities have reported the cost of placing an adjudicated juvenile delinquent in the custody of the state OCFS or a private agency to be somewhere within a range of “up to $200,000 per year” (Press Release, Governor Paterson Announces Task Force on Transforming New York's Juvenile Justice System, New York State Executive Chamber, September 10, 2008 [www.ocfs.state.ny.us/mainnews/2008/2008—09 www.ocfs.state.ny.us/mainnew s/2008/2008—09—10—juvenileJusticeTaskForce.html [last accessed February 6, 2012) ] ), “an estimated annualized cost of $210,000 per child” (Vera Institute for Justice, Charting a New Course: a blueprint for transforming juvenile justice [available at www.vera .org/paterson-task-force-juvenile-justice-report [last accessed February 6, 2010]; see also, Charting a New Course, A Blueprint for Transforming Juvenile Justice in New York State, A report of [former] Governor David Paterson's Task Force on Transforming Juvenile Justice [December 2009], Executive Summary at 10 [$210.000 per year] ); and “$270,000 per year, per kid. That's enough to send five kids to Harvard every single year” (Testimony of New York City Mayor Michael R. Bloomberg, joint meeting of New York State Senate Finance Committee and Assembly Ways and Means Committee on the Governor's proposed budget, January 24, 2012, available on NYC web site [copy in file] ).
The escalating cost of providing OCFS care for a juvenile for a year is regularly cited as a crisis requiring a move towards non-placement alternatives. However, the methodology which is used to arrive at the annual “per child” or “per capita” cost for OCFS care demonstrates that the cost per child frequently cited by officials and reported in the media is somewhat misleading. The report of the New York State Juvenile Justice Advisory Group illustrates that the cost per child which is frequently cited is derived by dividing the total cost of the OCFS budget for one year by the total number of juveniles placed in OCFS custody for that year. As the number of juveniles placed with OCFS has steadily decreased over recent years, the agency budget is divided by a smaller population of juveniles, resulting in a continually increasing per capita cost ( see, Tough on Crime, A Report to the Governor and Legislature, New York State Juvenile Justice Advisory Group at 21 [December 2010] ). According to the report, the cost of operating OCFS's facilities for 2010 was $240 million. When divided by the number of juveniles placed in OCFS custody that year, the per capita cost was about $210,000.00 as reported by the Advisory Group ( id.).
II
Luis T. was born on June 28, 1994, and on April 14, 2010 a petition was filed in the Family Court alleging that he is a juvenile delinquent as defined by Family Court Act § 301.2(1). According to the petition, the respondent committed acts which, were he an adult, would constitute the crime of Criminal Possession of a Weapon in the Fourth Degree, Criminal Mischief in the Fourth Degree, and Reckless Endangerment in the Second Degree. In addition, the petition alleged that Mr. T. violated Penal Law § 265.05 which makes illegal the possession of certain weapons by a person less than 16 years of age.
Respondent first appeared before this Court on April 14, 2010 and he was released to the custody of his mother at the conclusion of the initial appearance (Fam. Ct. Act § 320.5). In connection with respondent's release to his mother, the Court directed that respondent attend an “alternative to detention program” and that he observe a 6:00 P.M. curfew (Fam. Ct. Act § 320.5[1], [2]; 22 NYCRR § 205.25). On April 27, 2010 the Presentment Agency ( i.e., the prosecutor) filed an application to remove respondent from the alternatives to detention program because he had been arrested on April 26, 2010 for Attempted Burglary in the Second Degree, he had missed 40 days of school during the 2009–2010 school year, and had been suspended from school twice in 2009. A judge of the court modified the April 14, 2010 order and directed that the respondent be detained by the New York City Department of Juvenile Justice pending further proceedings upon the petition.
Notably at the time of respondent's release at the initial appearance on April 14, 2010, the Court was provided with a document known as a “risk assessment instrument” or “RAI”. The RAI was prepared by the Department of Probation, and it was created by city criminal justice agencies and the Vera Institute of Justice for use as “an empirically based risk-assessment instrument [which] measur[es] the likelihood that a youth would fail to appear in court or be rearrested during the pendency of his/her case” (Fratello, Salsich, and Mogluescu, Juvenile Detention Reform in New York City: Measuring Risk through Research, Vera Institute of Justice [April 2011]. Available at www.vera.org/content/juvenil e-detention-reform-new-york-city-measuring-risk -through-research (last accessed on October 19, 2011). The RAI submitted for Mr. T. indicated that there was little risk that he would fail to return to court and a “medium risk” that he would commit further criminal or delinquent behavior during the pendency of the proceeding.
Thereafter on May 4, 2010 respondent entered an admission which was accepted by this Court, to having possessed a prohibited weapon in violation of Penal Law § 265.05 which is deemed by the statute to constitute an act of juvenile delinquency, and the admission was deemed to “cover” the burglary charge for which respondent had been arrested after the filing of this juvenile delinquency petition. The case was scheduled for a dispositional hearing and the Department of Probation was directed to conduct an investigation of respondent's background and family circumstances (Fam. Ct. Act § 351.1[2] ). Respondent was also directed to submit to a diagnostic evaluation by the Family Court Mental Health Services Clinic, and both agencies were requested to prepare written reports for the dispositional hearing.
The dispositional hearing was held over two court dates. The Department of Probation reported that Mr. T., who was then 15 years old, resided in Woodhaven, Queens County, along with his mother, an older sister, and an infant brother. Respondent's father is deceased. At the time of the investigation, respondent was enrolled in the 8th grade at Intermediate School 119. With respect to the underlying crimes, Mr. T. told the Probation Officer that “[h]e admits to holding the BB gun and shooting BBs out of the window, but [that] he did not know it was loaded (sic). He also admits that he realized that he damaged the complainant's window [and] that he made a poor decision, especially when he was supposed to be in school. He indicated that all of his actions were based on his curiosity to hold the BB gun.”
According to the Department of Probation's report, the respondent had three other juvenile arrests in addition to the arrest underlying this petition. According to the report, respondent had been arrested on October 21, 2009 for Attempted Robbery in the Second Degree, arrested for Criminal Trespass in the Second Degree on April 20, 2010, and arrested for Attempted Burglary on April 26, 2010. These three arrests had been referred to the Presentment Agency by the Department of Probation for the filing of juvenile delinquency petitions.
Where attempts to adjust a case are unsuccessful, or where the Department of Probation is precluded from attempting adjustment, the case must be referred to the Presentment Agency (Fam. Ct. Act § 308.1[10]; 22 NYCRR § 205.23[e][2][ii] ). According to the probation report, respondent's April 26, 2010 arrest for Attempted Burglary “was withdrawn but not sealed as part of the plea regarding the instant offense.”
Respondent's mother, Jacqueline Bayona, spoke with Probation Officer Tunnell who conducted the investigation. Ms. Bayona informed Officer Tunnell that Luis resides with her, his step-father, and two siblings in the family home. According to Ms. Bayona, Luis “presents no behavioral problems at home, he obeys her curfew, and he attends school”. The mother expressed hope that her son would be allowed to return home and remain in the community. Respondent's mother also informed the Probation Officer that respondent associates with age-inappropriate peers, mostly 19 and 20 year old males, and that respondent “is mainly guided by negative peer relationships.” It was reported that some of respondent's friends are “gang involved” and they are involved with “fighting in the streets”.
According to the probation report, Luis denied being involved with gang activity or associating with peers who are gang members. He also confirmed his mother's statement about his behavior at home, and he also indicated that “he attended school regularly, with no cuts or truancy problems.” However, when the probation officer accessed respondent's school records, it was discovered that both Mr. T. and his mother were unreliable reporters as respondent was present at school only 50% of the time “with 70 absent days out of 140 [days] enrolled since the beginning of the 2009/2010 school year up [to] the time of being remanded.” Officer Tunnell further reported that Mr. T. “has an extensive suspension history since ... 2004/2005 through the year 2009. His suspensions involve falsely activating a fire alarm, possessing any weapon other than a firearm, engaging in physical altercations, insubordination, acts of intimidation, the use of profanity or obscene language, [being] verbally rude or disrespectful, failure to be [in his] assigned place on school premises, bringing in a cell phone without authorization, and possession of controlled substances.” It was also discovered by the probation officer that respondent, a special education student, has previously been left back and that there was little chance that he would be promoted to the next grade at the end of the current academic year.
Respondent acknowledged that the underlying incident involving the BB gun was “dangerous” and he told the probation officer that “this would be the first and last time he would put himself in this kind of situation.”
While respondent stated that he did not use alcohol or controlled substances, he admitted to using marijuana “once or twice a day”. According to the respondent, he obtained the marijuana from friends and that he smoked it “to relieve stress .” This statement concerning controlled substances seems to be at odds with information from respondent's high school which indicated that he had previously been suspended for possessing controlled substances on school grounds. This incongruity was not addressed in the probation department report.
Respondent's statement to Probation Officer Tunnell during the interview conducted on May 10, 2010 is historically inaccurate. Luis had been arrested for the underlying incident on the date of occurrence, March 8, 2010, and the juvenile delinquency petition was filed on April 14, 2010. Respondent was released to his mother's custody on this case, but soon thereafter he was arrested for Criminal Trespass in the Second Degree on April 20, 2010, and arrested for Attempted Burglary in the Second Degree on April 26, 2010. Thus, Mr. T. was arrested twice after having been released by this Court after his arraignment on this juvenile delinquency petition, and he was remanded to the Department of Juvenile Justice following the April 26, 2010 arrest by another Family Court Judge who heard the application in this Court's absence.
In the summary of the report, the probation officer reported that Mr. T. used the BB gun to shoot out of his apartment window and that this happened on a day he had cut school. The report further notes respondent's three other arrests which had been referred to the Presentment Agency for further action, and that given respondent's lack of school attendance and multiple school suspensions, and an apparent lack of supervision at home, Officer Tunnell concluded that respondent “is a high risk for community-based services”, and it was recommended that Luis be placed away from the community.
Aliza Yanovsky, Ph.D., a psychologist associated with the MHS Clinic interviewed both respondent and his mother prior to the dispositional hearing. According to Dr. Yanovsky's report, Luis T. suffers from “significant developmental delays as well as impaired cognitive functioning.” Based upon tests administered by Dr. Yanovsky, respondent's full scale IQ was reported as “62” (“mildly delayed”), and although nearly 16 years old at the time of the evaluation, respondent's reading ability was found to be at approximately the 3rd grade level. According to Dr. Yanovsky, “[w]ith this cognitive functioning it is unlikely that the respondent can learn.” Mr. T. was diagnosed with Conduct Disorder, Mood Disorder (not otherwise specified), Attention Deficit/Hyperactivity Disorder (provisional), and Borderline Intellectual Functioning.
Dr. Yanovsky's report observed that “respondent's early behavioral problems, possibly since age 6, escalated into a pattern of anti-social behaviors * * * [h]is anger over the death of his biological father was not dealt with appropriately and he later medicated himself by the use of marijuana.” It was further observed that respondent's mother, Ms. Bayona, “sabotaged his referral to a drug rehabilitation program in the community”, and that Luis “is gullible to the negative influence of older individuals. His intelligence is extremely delayed and it is surprising if he was able to learn anything in his school years. He missed school due to his numerous suspensions and it is not surprising that ... he became truant.”
Dr. Yanovsky's report also states that “respondent's judgment impressed as seriously impaired ... despite reports that lately his school functioning has improved (there are no objective report[s] from the school), [and] while paroled to his mother he was arrested again.” Based upon all of the information, Dr. Yanovsky concluded that “[t]he respondent's poor judgment, limited insight, and impulsivity are risky to himself and the community”, and she recommended that Luis be placed away from home “in a closely supervised, moderately structured setting.”
In making the recommendation that Luis be placed away from home, Dr. Yanovsky observed that respondent's mother “presented as well-meaning, but overwhelmed and busy with her new family. She attempted to defend her son, which compromised the effectiveness of her parenting. Despite the traumatic death of her first husband [in a gun fight], she allowed her son to have a[BB] gun.” Dr. Yanovsky further stated that Ms. Bayona “was not aware of the severity of the respondent's problems and minimized his marijuana use. Ultimately, she seemed to have marginal idea[s] of his learning problems. There is a baby in the house. The mother wants the respondent to continue living in the home.”
A
Based upon the placement recommendations made by the Department of Probation and MHS, respondent was referred for consideration by the Juvenile Justice Initiative (“JJI”) program, a “state-of-the art” community-based “alternative to placement” program that is under the auspices of the New York City Administration for Children's Services. Placement of a juvenile under probation supervision with mandated enrollment in the JJI program is a dispositional option that is available exclusively for juvenile delinquents who, like Luis T., have been recommended for placement away from the community.
On June 21, 2010 the Court was presented with a ten page letter from the ACS Juvenile Justice Initiative program, informing the Court and the parties that Luis T. had been accepted in to the JJI program. The JJI acceptance letter, signed by Michelle Carrera, MSW, of the Queens Borough JJI office, reads in pertinent part, as follows:
We are pleased to inform you that the Juvenile Justice Initiative (JJI) of the NewYork City Administration for Children's Services would like to accept Luis T. into our program to receive Multisystemic Therapy–Extended Care. The Child Center of New York will serve as the provider agency and will assign an MST therapist who will contact and begin working with the family within 48 hours of receiving the referral. This decision to accept Luis into the JJI program was based on a structured screening interview with him; a discussion with his mother, Ms. Jacqueline Bayona, his stepfather Mr. Gonzales, his adult sister Cicely Bayona, a review of adjustment report[s] from [the] Case Manager of Mandela House, Ms. Reynolds, a review of Probation's Investigation Report, and Mental Health Evaluation supplied to the JJI by the Mental Health and Probation Departments. On 6/14/2010 the undersigned met with Ms. Bayona and explained to her what MST–EC involves and what would be expected of the Bayona/T. family if the Court approves JJI to work with them as a condition of Luis' probation. Ms. Bayona reported that she was able to understand JJI's services and expressed an interest in the JJI/MST program in an effort to become more equipped to take command of and improve Luis' overall behavior when he is away from the home and her direct supervision, improve Luis' ability to take responsibilities for his impulsive actions, his consequential thinking, decrease his oppositional behaviors, become better equipped to appropriately address Luis' history of arrests and school suspensions, low parental control and supervision, physically aggressive behaviors in response to stressful situations, poor judgment and insight, problem solving abilities, refraining from befriending negative peers, acknowledging and appropriately addressing therapeutic intervention in a family setting around circumstances that brought Luis to the attention of the Court as well as the murder of his biological father on his parents' wedding [day] when Luis was just six years old.
In addition, Ms. Bayona was made aware that to receive JJI services she would need to open a voluntary preventive case with the Administration for Children's Services and acknowledged her full understanding of these requirements, thus providing verbal consent to open a preventive case.
The JJI/MST service provider will work with Luis and his family to put interventions into place to address the behaviors that brought Luis to the attention of the Court. For example, it is anticipated that the family's treatment plan will focus on increased overall supervision at home, addressing the violent death of his father several years ago when he was shot and killed on his wedding night, school and community behavior, with closer monitoring of Luis' access to peers not approved by parents, holding Luis accountable for inappropriate behaviors, substance usage and invoking age appropriate consequences for non compliance. Therapeutic intervention for Ms. Bayona and her family will also focus on family and individual social skill development, linkage with appropriate educational opportunities that better meet Luis' academic needs, psycho educational instruction for ceregivers focusing on the achievable expectations and ongoing need for increased monitoring and supervision for Luis that will foster sustained ongoing residency within the community.
The undersigned went over Ms. Bayona's plan for maintaining Luis in the community as well as addressing the continued concerns of the Court regarding Luis' history of arrests, possession of a dangerous weapon, disequilibrium within the community school and home. Ms. Bayona was forthcoming with information surrounding her perceived failed attempts to supervise Luis appropriately and continued to report that she is aware of Luis' non compliance and knows that she needs help to sustain him at home and ask the Court to allow her and her family a chance to work with Luis in a program that is geared very specifically for youngsters involved in the juvenile justice system, the JJI. Ms. Bayona went on to explain that she is now very aware that all presents given to Luis through family members or friends will be inspected and approved by her first, as she reported the BB gun in question was given to Luis without her permission by a paternal aunt, who resides in Pennsylvania. Ms. Bayona reported that she did take the weapon away from Luis but before she had a chance to remove the gun from the home i[n] a closet where she hid it, he found it. Ms. Bayona was forthcoming and reported that she began to notice that Luis began to have difficulties around age 8 or 9 where he would have reoccurring “night terror” and his behavior began to escalate at school and in the community. Ms. Bayona reported being very active in Luis' school, his suspension site, and his counseling prior to remand. Ms. Bayona held Luis responsible for his actions and did report that her family's plan for his supervision is that she and her eldest daughter Cecily Bayona are in the home daily to assist Luis with getting ready for school daily. Ms. Bayona will leave the home together with Luis and ensure that he gets on the bus for school, will contact the school attendance office upon her arrival at her job to check on Luis' arrival, Cecily will be in the home by 4pm daily to supervise Luis until his mother and step-father's arrival in the home by 7:30pm. Luis will be engaging in adult supervised pro social activities such as basketball and boxing at the YMCA in Jamaica, Queens, as a first step in revamping the way his family supervised him. Ms. Bayona wanted the undersigned to be aware that school will be on summer break in a few weeks and [t]he plans for Luis is to have him attend summer school if he is eligible to do make up credits and obtain summer employment. In the event that Luis will have to complete summer school Ms. Bayona or her Paramour will take him to school daily and he will be responsible for returning home to his Maternal Grandmother's (Luz Bayona) home where he will be supervised by her until he is picked up by his mother, Ms. Bayona. On 6/14/2010 the undersigned met with Luis in Queens Family Court and discussed with him what MST–EC has to offer as an alternative to placement. The undersigned discussed what JJI expectations were for Luis and his caretakers and more specifically how JJI can help him accomplish goals set forth. Luis was cooperative and he was able to articulate his thoughts throughout the undersigned's interview with him. His responses to questions asked by the undersigned were well articulated and reflected the amount of thought he put into his responses before answering. Luis expressed his wanting to return to his community and was able to articulate that he was aware that his actions have consequences and he is responsible for his actions. Luis reported that he was not thinking when he had a BB Gun in his possession, reporting “I could have hurt someone or get myself hurt”. Luis went on to report that he did not consider a BB Gun to be “all that” (a weapon), but certainly look at it differently now. The undersigned clarified for him that it is for all intense (sic) and purpose[s] considered a “gun” capable of causing severe injury. Luis was able to articulate his thoughts and to make a well educated assessment of the notion of “not thinking”, when he reported “I hold myself accountable for my behavior”. Luis reported that he was very sorry for embarrassing and disappointing his mother and father's memory as they raised him “better than that”. Luis appeared to have given the undersigned's discussion with him around the issue of serious delinquent acts (sic) and reported “I have had a few weeks to think of how my behavior have disrupted, my as well as my family lives” and had the intellectual capacity and noted for himself, a need for change in his behavior, members of his peer group, refraining from involvement with the Law, underage drinking, substance usage and being “bad” from here on in. Luis provided the undersigned with a host of verbal reports of academic achievement reporting that he is utilizing the teachings of the staff and teachers while in remand and spoke at length of utilizing “Target Skills”. Target Skills are a host of behaviors that are taught to youngsters in remand to improve their overall “coping” skill while in remand as well as in the community. Luis repeated some of these goals throughout his interview with the undersigned reporting “I am now better able to handle myself utilizing the seven target skills taught to me and they are: accepting No, following instructions, Expressing feelings appropriately, making educated decisions, showing respect, taking responsibility and education is important”. Luis was able to utilize target skills learned to assist him with what his goals are for the future, for instance, he is looking towards graduation from high school and then becoming a Pilot due to his love of travel, a boxer or a police officer. Luis chuckled when he rattled off all the things he wanted to do and reported “it's a lot, I will be busy”. Adjustment reports from Case Manager Ms. Owana Reynolds of Mandela NSD,
corroborates Luis accounts of doing well in school as well as in the facility, the leader level of their Sanctuary Achievement System. Luis took responsibility for his academic decline citing while main streamed he did not take his education seriously for several reasons, negative peers, and struggles with his biological father not being present in his life to name a few. Luis wanted the undersigned to know that he has had a few months to work “on me” and believes that he now realizes that his behavior is in need of an “overhaul” and he ask the Court to grant him a chance at continuing the positive changes he began in NSD. The undersigned asked Luis why he thought he is able to do well without incident while in NSD versus maladjustment to school and community while mainstreamed. Luis appeared to give thought to the question and then respondent, “I am supervised consistently, am treated fairly, and held accountable for my actions and am encouraged to think differently about my decisions.”
“NSD” is an abbreviation for non-secure detention. Secure detention facilities utilize physically restraining construction, hardware and procedures, but non-secure detention facilities do not (Executive Law § 504–a [1]; Fam. Ct. Act § 301.2[4], [5] ).
Ms. Bayona reported that while Luis was in “regular school” he had too many distractions and too many instances to “get into problems”. Luis spoke openly, and appeared to be hopeful about his plans for the future and reported that he stays focus[ed] by reflecting on the princip[les] of the “Sanctuary System” taught to him while in NSD, such as tolerance, open communication and non violence. Luis wanted the undersigned and the Court to know that he has used his Sunday home passes as a vehicle for change in his behavior and is committed to staying focused on becoming a better person. Luis described his experience at Mandela House NSD as a “learning experience” that he will continue to learn from, which thus far have made him appreciate his mother and stepfather's teachings of him. Luis reports that he has learned to make use of services available to him such as counseling, appropriately socializing with peers and adults within his ecology and daily living skills. Luis continues to work on accepting consequences for his actions and would like to continue on this path if the Court grants him the opportunity to return home under the supervision of his mother and stepfather, the JJI/MST Program and the Probation Department. * * *.
In the undersigned's discussions with Ms. Bayona and our review of the Court documents, we have identified areas of strength as well as family needs for Luis to successfully remain a part of his community. Ms. Bayona was insightful and was able to point out that she realizes that she and her paramour's parenting of Luis has proven to be ineffective when he is away from the home, a realization that was not easy for any parent to admit or even accept. Ms. Bayona believes that her son's behavior is not only a product of his negative interaction with his social ecology but [s]he also holds herself accountable. Ms. Bayona reported that she and her family [are] now very aware that Luis is unable to be supervised the way he was prior to coming to the attention of the Court and will need all family members to be on the same page and that having the intensive services of the JJI/MST program is a good start to enabling designated family members to support Luis and be supported themselves. Ms. Bayona wanted the Court and the undersigned to know that since Luis' arrest and remand her family has not been the same and reported that she and her paramour [are] ready and able to begin making changes in the way that Luis is supervised so that he is able to continue his path of positive changes he has made thus far. It is note worthy that Ms. Bayona was able to hold Luis accountable for his actions and reported that she taught her children that actions have consequences and that breaking the law and not abiding by her directives carries with it severe consequences.
According to Ms. Bayona, Luis' acting out culminated with the death of his father when he was just six years old but have escalated over the years. Ms. Bayona states that Luis has never given her any “real problem” in the home but she was aware of his difficulties at school with non compliance, truancy and coming to the attention of the Court. Ms. Bayona was insightful and was able to acknowledge that, she and her family have to become more involved with Luis at home, in the community and it is for this reason that she moved from her old neighborhood, have more structured activities and enhance supervision so they are better able to supervise Luis. Ms. Bayona went on to say that Luis is no longer able to be unsupervised, even at home, all phone calls, television programs, access to the internet activities are monitored more closely by her.
Ms. Bayona reported that as part of her enhanced supervision plan for Luis she will be in the home daily to make sure he is ready for school and will take [him] to school daily and either will pick him up from school, Luis person and his room will be checked daily for any items related to Drugs, after school activities will be limited to in school or supervised community activities or summer youth employment, all friends will be approved by Ms. Bayona before Luis is able to socialize with them and further more all meetings with friends will take place at the home of Ms. Bayona where she is able to supervise Luis. The Child Center of New York will work with the Bayona family around addressing Luis' substance misuse using a contingency management approach and will continue working with Luis and his family around the “Sanctuary Achievement System” he began in NSD, with their “Seven habits of highly effective people” which is a similar model to the “Sanctuary” approach in an effort to keep Luis focused of the therapeutic work he began in NSD. The JJI will also encourage Luis to interface with his Guidance Counselor, pro social activities within his school such as peer mediation/conflict resolution, and basketball. The JJI will work with Luis and his family around his substance usage, first using a Contingency Management model to address his usage * * *.
Ms. Bayona and her paramour, Mr. Gonzales will be responsible for contacting the school attendance office and Guidance Counselor to keep abreast of Luis' compliance while in school. Ms. Bayona went on to say that Luis is a bright child and believes that he has the ability to do well but in light of all his difficulties at school he is willing to obtain a psycho educational evaluations to rule out any mental health and academic difficulties he may be struggling with. Luis, as per his mother, has extensive social support systems that provide him with a safety net within his community. Ms. Bayona reported that her family communicates and work well with each other on behalf of Luis and have all offered to participate in any necessary services and supervision of Luis to afford him to remain a part of the family.
Luis reported during the undersigned's interview with him that he feels “fortunate” to have parents that sacrifice so much for him to have “more than and to live commutable (sic). As per Luis, placement with her parents (sic) coupled with “this program” will foster success in his community if the Court allows him to return to the care of his mother. Ms. Bayona spoke with conviction about her and her paramour's ability to appropriately enhance the supervision of their son to ensure his compliance with the Court's directives. Ms. Bayona believes that placement with her will now lend itself to Luis being closely monitored in a supervised environment where the rules of the home will now be well defined and positive behavior is consistently modeled for Luis and it is for this reason that she welcomes the assistance and support needed to sustain Luis in their community from the Child Center of New York MST/JJI program.
It is important to note that throughout the undersigned interview with Luis' family they held him accountable for his actions and spoke at length about what they will do to ensure his safety and the safety of the community if the Court sees fit to return Luis to their care. As part of services rendered to the Bayona/T. family, The Child Center of New York will assist the family with providing Luis with appropriate assessment for school placement where he is able to focus on continuing his education, the educational specialist will work with the family [and] Luis' school to request if needed a psycho educational evaluation to get better idea of what interventions are needed academically, psycho-pharmacological evaluation to rule out the need for medication, provide parents and caregivers with the clinical tools to appropriately set limits that are age appropriate for Luis, assist him with verbalizing and mediating anger responses, impulse control, assist the family with locating pro-social after school activities to enhance and sustain academic functioning, and provide family counseling to address the events that have brought Luis to the attention of the Court and to improve his overall functioning. Ms. Bayona is hopeful that the Court grants her son a chance to do better in the community providing that he complies with all Court mandates and is fully aware that if Luis does not comply with such requirements, the Court will have no choice other than to remove him from the community.
Ms. Bayona, her mother Luz Roman, her paramour, Mr. Gonzales, her daughter Cecily and their Social Supports with the help of the MST Therapist will become skilled in being able to appropriately monitor Luis' set curfew by limiting places visited by him without adult supervision, become more familiar with his friends and their caregivers as well as school personnel. The MST Educational Therapist will be working diligently with Luis' school to straighten out any academic needs and to help re-integrate Luis into an appropriate school setting that will accommodate his need. Luis has been made aware of this plan and assured not only the undersigned but also his parents that he is ready to comply. Furthermore, Luis and his parents believe that a program such as JJI/MST is what they need to help him in bridging the gap between adjusting living productively in his community as well as making educational strides so he can incorporate to his community successfully. Luis and his family have not had the type of intensive home based intervention The Child Center of New York MST/JJI program provides and requests that the Court give them the opportunity to work together as a family to address the factors and attitudes associated with anti social activities and behaviors, negative peers, poor school performance, and impulse control by participating in out intense treatment program and changing Luis' peer environment, and making changes to his current educational setting, which as per ... Ms. Bayona will allow Luis to be supported with a matrix of familial as well as agency supports for whatever he is going through at this time.
In this regard, the JJI/MST Therapist will be working with Ms. Bayona and her paramour Mr. Gonzales to analyze interactions in their family system with the inclusion of knowledge beliefs and other skills that the family may bring to the table, as well as their social ecology and how this impact[s] on their parenting skills. Therefore, Ms. Bayona will be setting treatment goals and collaborating with the MST Therapist assigned to the family in designing and implementing interventions to meet goals that will benefit not only Luis but the family as a whole and will also empower them to appropriately supervise and monitor Luis when MST treatment ends. It is for this reason that we strongly believe that Luis and his family can benefit from JJI services. Ms. Bayona appeared motivated and committed to participate in services as a way of restoring equilibrium to her family and for Luis to learn to deal with his emotions without being under the influences of Marijuana, and other illegal substances or engaging in delinquent behaviors.
In MST–EC Luis will receive treatment for six to twelve months in two different phases, both of which involve the entire family: standard MST and extended care. During the standard MST phase, which typically lasts between three and five months, the therapist will make multiple visits to the Bayona/T. home. Once the overarching goals of MST have been reached during the standard phase, Luis and his family will transition to the extended care phase of MST treatment. During the period of extended care, the therapist will have at least one hour of family contact per week. The JJI MST Therapist will be available on call 24 hours a day during both phases of treatment. At the end of six months of total treatment time in standard and extended care MST, the clinical team will conference the case to determine whether Luis and [his] family have successfully completed treatment, or whether they require continued support and monitoring. If the Clinical Team, which includes the MST Expert Consultant, Dr. Jeff Randall PhD. determines that additional support is necessary, Luis and his family will continue in the extended care phase of treatment for up to six more months; otherwise, Luis will be discharged from the JJI program after six months.
We ask Your Honor to consider a disposition of JJI as a condition of probation. Because the duration of treatment for youth in JJI/MST–EC is up to 12 months, we recommend a disposition of probation not to exceed 12 months. Given the comprehensive and specific clinical nature of MST–EC, we also recommend that JJI/The Child Center of New York be the sole service provider mandated by the Court for Luis over the course of his involvement with JJI. We believe that MST–EC will be able to address the entire scope of Luis' presenting problems by building on the family's existing strengths and promoting behavior change in school, with peers, and in the community.
In an addendum to the letter concerning Mr. T., JJI provided an explanation of the specifics of the JJI program titled The Juvenile Justice Initiative's Evidence Based Models of Delinquency Prevention: Multisystemic Therapy Extended Care (MST: www.mstservices.com). This explanatory addendum reads as follows:
What is MST?
—A clinical model with over thirty years of research-tested results designed specifically for delinquent youth and their families, and currently implemented in over 80 certified sites in 30 States. MST has been designated as a “model” program by the Surgeon General and the Office of Juvenile Justice and Delinquency Prevention.
How does MST work?
—Clinical interventions are provided by a small team of highly trained therapists certified in the MST service model, each with a caseload of no more than six to one.
Therapy is provided to the entire family in the home over four/five months. Therapy includes multiple visits a week as well as therapists who are on call 24 hours a day.
—MST therapists concentrate on empowering families and improving their effectiveness by identifying strengths and developing natural support systems—such as extended family, neighbors, friends, and church members—and removing barriers such as substance abuse, stress, poor relationships, negative peer influences, and low school attachment. The techniques used to foster these outcomes are integrated from those cognitive, behavioral and family therapies that have the most empirical support.
What evidence exists to suggest MST is effective?
Data from thirty years of randomized trials and comparison studies with juvenile offenders suggest that MST produces 25–70 percent decreases in rates of rearrest.
—At a cost significantly lower than placement, research findings have also provided clear support for the effectiveness of MST in addressing adolescent substance use, mental health problems, school attendance, and family functioning.
Why is MST effective and how is it different from standard community services?
—MST offers a well-defined, research-proven clinical model that is often lacking in other community services and prevention programs.
—MST therapists serve a small number of families; conduct therapy in the home; intervene with a delinquent youth's entire ecology (family, peers, school, community, etc.); and provide extremely intensive services.
—MST Services ensures the quality implementation of their clinical model—the most important factor suggested by research as determining the efficacy of interventions for delinquent youth. MST achieves this goal through manualization of key components of the MST program; ongoing, intensive training of clinical staff; ongoing weekly feedback to MST therapists from the supervisor and an MST expert consultant; and objective feedback from caregivers collected by a third party.
How will JJI go to even greater lengths to ensure the efficacy of MST?
Implement, in partnership with MST, an extended care pilot version of MST such that youth and families served in JJI by MST providers receive therapeutic and educational services throughout the length of a one year probationary term.
—Require all MST therapeutic teams to include an Education Specialist and Resource Specialist, and work with the Department of Education to improve the educational attendance and achievement of all JJI participants.
B
At the conclusion of the dispositional hearing, the Court adjudicated Mr. T. to be a juvenile delinquent, based upon the Court's determination that he required supervision and treatment (Fam. Ct. Act § 352.1[1] ).
Upon consideration of the needs and best interests of Mr. T., as well as the need for protection of the community, and consistent with the statutory directive that the Court utilize “the least restrict available alternative”, except in cases in which the juvenile has committed a designated felony act ( Fam. Ct. Act § 352.2[2][a] ), respondent was placed on probation under the supervision of the New York City Department of Probation for a period of 18 months.
.Family Court Act § 352.1(1) provides that “[i]f, upon the conclusion of the dispositional hearing, the court determines that the respondent requires supervision, treatment or confinement, the court shall enter a finding that such respondent is a juvenile delinquent and order an appropriate disposition pursuant to section 352.2.”
Probation is one of five possible dispositional alternatives in a juvenile delinquency proceeding. “Family Court Act § 352.2 authorizes five dispositions of a youth who has been adjudicated a juvenile delinquent: conditional discharge, probation, placement with OCFS [or DSS], placement in a mental hygiene facility, and, in the case of a juvenile delinquent who has committed a designated felony, restrictive placement pursuant to Family Court Act § 353.5”
(Matter of Robert J., 2 NY3d 339, 243).
In placing Mr. T. on probation, the Court directed as a condition thereof that he enroll in and cooperate with the JJI program (Fam. Ct. Act § 353.2[2] [e] ). In addition to the condition of JJI participation, the additional conditions imposed by the Court pursuant to Family Court Act § 353.2(2) required that respondent refrain from using alcohol, controlled substances, and marijuana, that he complete 150 hours of community service, that he obey a curfew of 6:00 P.M. until at least 75 hours of community service have been performed, that he commit no future criminal or delinquent acts nor be arrested for committing such acts, that he attend school regularly with no school suspensions, and that he obey the lawful commands of his parents, including any curfew which they imposed. These conditions were clearly communicated to Mr. T., his mother, the Department of Probation, and the staff of the ACS JJI program.
III
Although Mr. T. remained under the jurisdiction of the Family Court during the period of his probation (Fam. Ct. Act § 360.1[1]; Matter of Markim Q., 7 NY3d 405, 410), the Court had no occasion to revisit Mr. T.'s case from June 21, 2010 until March 14, 2011, a period of approximately nine months. On March 14, 2011 the New York City Department of Probation filed a petition pursuant to Family Court Act § 360.2 alleging that Luis had violated one or more of the conditions of probation imposed by the Court. An amended violation petition was subsequently filed by the Department of Probation on April 29, 2011. The original violation petition alleged that Mr. T. violated the court-imposed conditions of probation, in that: (i) respondent continues to use and test positively for marijuana; (ii) respondent has committed further criminal acts; (iii) respondent has failed to attend school regularly; and (iv) respondent regularly violated his court-ordered 6:00 P.M. curfew. The report of an internal administrative hearing conducted by the Department of Probation on October 7, 2010 concerning respondent's violations of the conditions of probation was appended to the violation petition as an exhibit. The report reflects that four distinct types of violations were addressed at the administrative hearing by the Department of Probation:
1. Respondent's continued use of marijuana. According to the report, respondent “has been testing positive for marijuana for the past 4 months while on JJI.” While the JJI program instituted “a contingency management plan” to address the drug use issue, Mr. T. continued to test positively for marijuana.
According to a “progress” report submitted to JJI by The Child Center of New York (“CCNY”) on July 21, 2010, “Luis tested positive on his first urinalysis on 6/23/10. Luis stated that he used while he was away in detention. Luis tested positive again on 7/14/10.” The report of August 21, 2010 reported that Luis tested positive for marijuana on August 17, 2010, and the report of September 21, 2010 states that Luis tested positive for marijuana on September 15, 2010. The CCNY reports of October 21, 2010 and November 21, 2010 reflect that Luis tested positive for marijuana on October 13, 2010 and November 3, 2010.
2. Respondent's violations of his curfew. The court imposed an initial curfew of 6:00 P.M., but the curfew has regularly been ignored as “[r]espondent has been violating his curfew on a consistent basis and [he] did not return home on 10/6/10 until approximately 11:00 P.M.”
In its July 21, 2010 report to JJI, it was reported by CCNY that “Luis has been late on occasion by 15–30 minutes”, and that his mother “reported that Luis has occasionally been late for curfew by 30 minuted to a few hours.” According to the report, which does not explain the discrepancy concerning curfew violations, CCNY intended to institute a “monitoring plan that would increase the family's supports to help improve on curfew abidance.” The August 21, 2010 CCNY report indicates that Luis stayed out all night on September 11, 2010 without permission from his mother. Although it is believed that “he stayed with his brother on this occasion”, there is no indication that CCNY, JJI, or Department of Probation staff made contact with the brother to ascertain this claim. Luis's curfew violations continued into September. The CCNY reports of September 21, 2010 notes that respondent “still misses his curfew occasionally”. The CCNY reports of October 21, 2010 and November 21, 2010 indicate that curfew violations continued even after the October 7, 2010 administrative hearing, and that Luis also stayed out all night without permission on October 2, 2010.
3. The failure of Mr. T. to participate in community service in order to perform the 150 hours imposed by the Court Luis had failed to appear for community service “and he has only completed 15 hours”
CCNY's report to JJI dated August 21, 2010 states that respondent had commenced his community service at Rufus King Park in Jamaica. Neither that report nor any of the subsequent reports provides any detail concerning respondent's community service.
4. The failure of Mr. T. to attend school regularly. He has been “truanting from school and school records received on 10/7/10 indicated that he was absent 13 days from September 8, [2010] until 10/6/10.”
The CCNY report of September 21, 2010 states that Luis “has been late to some of his classes” at Thomas Edison High School. The CCNY report of October 21, 2010, which is after the administrative hearing, states that “Luis has been absent 13 times and late twice since school started.” The CCNY report of November 21, 2010 states that “Luis has been present [at] school 3 days during this reporting period”, which was October 22, 2010 to November 21, 2010.
The Department of Probation's report further indicated that during the administrative proceeding Luis “admitted that he has been smoking marijuana with his friends and he has a difficult time stopping. He claimed that his [school] absences are due to him getting to school late. He also admitted that he spend[s] his time at his friend's home and his cousin's home when not in school. He stated that he has gone to community service, but he gets there late sometimes and he is sent home.”
The CCNY reports of July 21 and August 21, 2010 clearly state that respondent's continuing problems were in large part due to a lack of adult supervision. CCNY reported that Luis had been the victim of a robbery while outside of a friend's house in the afternoon of July 22, 2010, and that his watch and phone were forcibly stolen. In addition, CCNY reported that Luis had been arrested for “fare beating” in the subway on August 4, 2010, and that on August 11, 2010 Luis was “assaulted [at] around 6:30 PM while he was at a deli near his home” by an unknown male assailant, he suffered cuts and bruises.
Although the Department of Probation had access to significant evidence that would establish that Mr. T. had committed multiple violations of the conditions of probation, as well as information which strongly suggested that Luis' mother was unable to control or modify his behavior, notwithstanding the assistance of the JJI/MST professionals at the Child Center of New York, the Department of Probation chose to enter into an “agreement” with Luis on October 10, 2010 rather than seek court intervention by filing a petition of violation.
The statute provides that if the Department of Probation “has reasonable cause to believe that the respondent has violated a condition [of probation], it may file a petition of violation” (Fam. Ct. Act § 360.2[1] ).
The “agreement” between Mr. T. and the Department of Probation, which the record demonstrates was never enforced by either CCNY or the probation department, provided that he “is to obey his court-order[ed] curfew. He is to obey his mother's lawful commands. The respondent is to attend school every day, on time, [with] no cuts or suspensions. * * * The respondent will be referred to a boxing program for pro-social activities. This agreement will be reviewed in two weeks 10/21/10. The respondent is to report to probation weekly until he starts his drug program. If the respondent does not follow these rules a violation of probation will be filed. The respondent is to be referred to the Child Center of New York drug program. The respondent will receive individual contingency management counseling from JJI.”
The amended violation petition filed on May 2, 2011 contained most of the same allegations as the original violation petition, as well as additional violations based upon respondent's arrest as an adult for three separate criminal incidents in three different counties, all of which involved the commission of violent felonies. Specifically, the amended violation petition alleged that:
1. Mr. T. continues to use drugs. “Respondent was testing positive for marijuana while in the JJI program.” At the conclusion of the administrative hearing the respondent was referred to a drug treatment program by the Child Center of New York “but he failed to cooperate.” In addition, “[r]espondent tested positive for marijuana on 1/21/11 by Phoenix House. When questioned by Probation, the respondent admitted to smoking marijuana.” Probation then gave respondent a referral to yet another drug treatment program (Camelot) but he was arrested before his scheduled reporting date.
2. Mr. T. fails to attend school regularly. “The respondent is registered at Thomas Edison High School, but he failed to attend school and was absen[t] from September 8, 2010 to March 4, 2011, approximately 80 days.”
3. Mr. T. fails to obey the court imposed curfew of 6:00 P.M. “On 1/21/11 the respondent admitted in the presence of his mother that he was arrested in Bronx County at approximately 12:36 A.M. after his court-mandated curfew”; and
4. Respondent has committed further criminal acts. “The respondent was re-arrested on 1/9/2011 in the County of the Bronx for Assault in the Second Degreeintent to cause serious physical injury, P.L. 120.15(1), Bronx Criminal Court under Docket Number 2011 BX001582. On 1/14/2011 he was indicted under case No.01582C–2011 in Bronx County Supreme Court. * * * In addition, on 1/25/11 respondent was re-arrested for the second time in Kings County for Robbery 2nd degree, aided by another, P.L. 160.10(1) under Docket Number 2011KN006538 in Kings County Criminal Court. Respondent was indicted on 1/31/11 under case # 00754–2011.” Respondent was arrested in Queens County on March 13, 2011 and charged with Manslaughter in the First Degree, Gang Assault in the First Degree, and Criminal Possession of a Weapon in the Fourth Degree under Docket Number 2011QN* * * * * *.
IV
Proceedings upon the violation petition commenced on March 16, 2011 when Mr. T. was produced by the Department of Corrections at the Court's direction (Fam. Ct. Act § 360.2[3] ). The attorney for Mr. T. was reassigned by the Court and he and his attorney were provided with a copy of the violation petition filed by the Department of Probation. The respondent entered a denial to the allegations in petition, and the case was set down for a hearing (Fam. Ct. Act § 360.3[2] ). Although the respondent was then being detained by the Department of Correction on three separate criminal actions, this Court entered an order directing that Mr. T. be detained by the Department of Juvenile Justice pending the outcome of the proceedings upon the violation petition in the event that he posted bail in the criminal actions (Fam. Ct. Act § 360.3[2][b] ).
At the time of the proceedings upon the violation petition, the Department of Juvenile Justice no longer existed as a city agency. On December 7, 2010 the Department of Juvenile Justice (“DJJ”) was merged into the New York City Administration for Children's Services (“ACS”), and the Commissioner of ACS assumed the duties of the Commissioner of DJJ (N.Y. City Charter § 618, amended by Local Law No. 61 [2010], effective December 7, 2010).
The hearing upon the violation petition was conducted on April 7, 2011. The Presentment Agency presented the petition on behalf of the Department of Probation (Fam. Ct. Act § 360.3[5] ). The certified records of the New York City Department of Education concerning respondent's school attendance for the period of September 2010 until March 2, 2011 were admitted into evidence, and based upon those records the Court found that the Presentment Agency had met its burden of establishing by a preponderance of the evidence that Mr. T. had violated the condition of probation which required that he attend school regularly ( see, Matter of Devon AA., 7 AD3d 845, 846;Matter of Joshua M., 59 AD3d 1073,lv denied12 NY3d 712;Matter of Anthony M., 81 AD3d 1205, 1206).
While no new dispositional hearing was required at this stage of the proceedings (Matter of Edwin L., 88 N.Y.2d 593, 601;Matter of Jasen P.M., 289 A.D.2d 1033;Matter of Brandon J., 302 A.D.2d 755), in order to assist the Court in determining whether to revoke, continue or modify the respondent's probation, and to assist the Court in determining the appropriate order of disposition in the event that probation was revoked (Fam. Ct. Act § 360.3[6] ), the Court continued the proceedings ( see, Joshua M. at 1073) and directed that the Department of Probation prepare an updated investigation as to the respondent's current circumstances. In connection with that investigation the Department of Probation was directed to obtain and provide the Court with all reports concerning Mr. T. which were prepared by or for the Juvenile Justice Initiative program, as well as any other documentation relating to respondent's performance in the JJI/MST program.
The proceedings resumed on May 2, 2011 and on that date the amended violation petition was filed by the Department of Probation. Upon the consent of the parties the proceedings conducted upon the initial violation petition were deemed to have been conducted upon the amended petition, the Court entered a finding of violation upon the amended petition, and the Court proceeded to consider whether respondent's probation should be revoked, continued or modified, and if revoked, what order of disposition should be made.
The Department of Probation submitted an updated report of investigation along with reports prepared by the JJI program and a copy of the Department of Probation's “Violation of Probation Manual”. The updated report by the Department of Probation contained the following pertinent information:
VIOLATION OF PROBATION. On 3/14/11 a violation of probation was filed which alleged that while on probation Luis was testing positive while in the JJI program. He tested positive for Marijuana on 1/12/11 by Phoenix House. In addition, he was rearrested twice on 1/9/11 in the [C]ounty of Bronx for Assault in the Second Degree Intent to Cause Serious Physical Injury under Docket # [2011] BX001582. On 1/14/2011 he was indicted under Case # 01582C–2011 in Bronx Supreme Court. Police deposition was obtained on 2/2/11. In addition, on 1/25/11 Luis was arrested for a second time in Kings County Criminal Court for Robbery 2nd Degree Aide[d] by Another, [P.L.] 160.10(01) Under Docket # 2011KN006538 in Kings Criminal Court Luis was indicted (sic) on 1/31/11 under case # 00754–2011. Police Deposition was obtained on 2/17/11.
Luis was registered at Thomas Edison High School but he failed to attend school and was absence (sic) from September 8, 2010 to 3/4/2011 approximately 80 days certified school records were obtained on 3/4/11.
Luis failed to obey the lawful command of his parent including his 6 P.M. curfew. On 1/12/11 Luis admitted in the presence of his mother that he was arrested in the Bronx County (sic) at approximately 12:36 A.M. after [h]is court mandated curfew. COURT ACTION. On 4/7/11 Judge Hunt Presiding. Present were ACC ... 18B [attorney], Mother and Luis.Finding to VOP Truancy as per petition. Update I & R ordered. All copies of JJI progress reports are ordered and all drug test results while on probation supervision. Luis should not be questioned on any open cases. DOP to file Amended petition to reflect Homicide Arrest. Remand continued Adjourned for 5/3/11.
LEGAL HISTORY: In regards to his re-arrest of 1/9/11 in Bronx Supreme Court under Ind # 00577–2011 for charges involving Robbery 1 & Assault 1, his next court date is 5/23/11.
In regards to his re-arrest of 1/25/11 in Kings Supreme Court under Ind # 00754–2011 for charges involving Att. Robbery 2 & Assault 2, his next court date is 5/2/11 for trial.
In regards to his re-arrest of 3/13/11 in Queens Criminal Court under Dkt # 2011QN * * * * * * for charges involving Manslaughter 1, Gang assault 1, his next court date is 5/19/11.
RESPONDENT'S STATEMENT. Luis was interviewed on 4/25/11 in Corrections detention ... [h]e stated he has no problems at Riker's Island. He stated that he is sorry he is in so much trouble. He is sad that he did not listen to his mother, his P.O. or his JJI therapist. He stated that he knows that everyone tried to help him but he did not listen.
In regards to the violation of probation and [f]inding by the court to [t]ruancy, Luis reported that he does not believe that he missed approximately 80 days of school. He admitted to not attending school sometimes, but claimed that he never received an I.D. card. [H]owever, school officials insisted that he was given one when school started. Due to him not having a card to swipe he was marked absen[t]. He was lata a lot and did not sign[ ] the late book. However, he admitted that when he did not attend school he would hang out at his girlfriend's home or his cousin's home that lived a few blocks away from him.
Luis admitted that when in school he did not like to follow rules. He stated that if the teacher asked him a question and he did not know the answer he would be embarrassed. He would say he did not know', get angry and leave the school. Luis stated that he did not obey his curfew sometimes and was arrested after his curfew. He admitted to smoking marijuana for 3 years, and failing to cooperate with [the] drug program. However, Luis indicated that he was interested in attending Camelot program and went to celebrate before going into the program,
but he was arrested and could not attend.
Camelot is a residential drug rehabilitation program. Why and how Mr. T. decided to “celebrate” his enrollment in that program is unexplained.
In regards to a disposition, Luis stated that he does not know what should happen[ ] to him because he has a lot more serious cases against [him]. ENVIRONMENT AND RELATIONSHIP[S]. Prior to being in Riker's Island he resided with his mother, his mother's paramour Javier Gonzales, 32, his sister Cecily Bayona, 21, and baby brother Kayden Gonzales, 17 months old. Luis reported that he had a good relationship with his family. He was stressed a lot regarding the death of his father and thought about him and how he was killed. Ms. Bayona was interviewed on 4/25/11. She was emotional at times during the interview. In regards to the violations of probation filed, [s]he reported that she was aware that Luis was truanting. He would leave the home every morning to go to school but sometimes he did not get there. She did receive[ ] calls from the school officials and Guidance Counselor regarding truancy problems. Ms. Bayona admitted that she did not go to the school to address these issues. However, she did inform[ ] the Guidance Counselor that she was in the process of getting him into a residential drug program. According to Ms. Bayona, she stated that she felt that JJI tried to help Luis. They got him into Job Net for the summer program and were looking into pro-social program[s] such as boxing, but she could not afford the boxing program. She stated that JJI staff is good people but she does not think they helped her.
Ms. Bayona stated that she did not fully embrace[ ] the JJI program techniques, such as taking away Luis' clothes so he could not go out because she believed he was too old, and she did not have the time to watch him 24/7. She had to make a living and provide for her family. Ms. Bayona stated that Luis did not miss any JJI appointments. However, he tested positive for marijuana most of the time. He only tested negative twice. Ms. Bayona stated that she was actively involved with testing him and would give his therapist the results. Ms. Bayona related that P.O. referred Luis to several places for drug treatment but he did not fully cooperate with the programs. She did not follow through with the Daytop drug program because she did not have any medical coverage.
Ms. Bayona related that she did take Luis to Camelot and that Luis was receptive to attending the residential drug program. She had to make several appointments to get him the medical testing and was in the process of faxing the medical paper work to Camelot when Luis was arrested for the first time.
At this time, Ms. Bayona stated that she does not want to blame anyone for Luis' problems with the law. Her life is stressful enough going to four different courts due to Luis being arrested three times. Ms. Bayona stated that Luis' paternal grandmother is helping her financially. She is sad that Luis is being accused of contributing to another youth[s] death. She feels for that family. In regards to a disposition, Ms. Bayona stated that she would like to see this case resolved so there would be one less case she will have to worry about.
SCHOOL. Luis was enrolled at Thomas Edison; he was in special education in the 9th grade. Certified school records obtained on 3/4/11 indicated that Luis was absent approximately 80 days from school. During Luis' probationary period, P.O. conducted numerous visits to Luis' school and spoke with his guidance counselor, Ms. Jackson, on several occasions.
* * *
MENTAL AND PHYSICAL HEALTH. Luis was receiving therapeutic services in the community from Juvenile Justice Initiative program JJI/CCNY. His MST therapist was Edward Lee. JJI worked with Luis for (6) months and during this time he was basically cooperating with JJI, he continued to use drugs (marijuana), continued to have truancy issues, as well as some curfew problems, often times he would stay out pas[t] his curfew, hanging out with his girlfriend. JJI's Contingency Management Plan was to continue to work with him concerning his school and drug usage. He was referred to Child Center of New York on 9/29/1[0] for drug treatment but he did not have the initial intake appointment until 10/21/1[0]. His counselor was Mr. Joseph Roth, who reported that Luis was not reporting consistently and he was terminated from the program on 12/6/1[0].
On 12/10/10, JJI terminated their services due to Luis needing residential substance abuse treatment. A meeting was held on 12/22/10. P.O., JJI therapist Mr. Lee and Luis. During this meeting, his non-compliance was discussed, as well as the plan for him to receive drug treatment. During this meeting, Camelot residential treatment was discussed, Luis had been accepted into this program on 12/6/10, however, his mother needed to complete medical paperwork. During this meeting, P.O. contacted mother to inquire about the status of the paper work. P.O. was informed by mother that there was a delay because she was busy with her work schedule and she needed to make some additional testing appointments for Luis.
RESPONSE TO SUPERVISION. Luis was placed on 18 months JJI probation on 6/21/10 for Unlawful Possession of a Weapon. His special conditions were: abstain from and test negatively for marijuana, alcohol, and controlled substances, complete 150 hours of community service, not to commit any further violation of the law (no new arrest), attend school regularly (no suspensions), and obey the lawful commands of parent including 6 PM curfew until Luis completes 75 hours of community service, thereafter as set by parent and probation.
While on probation supervision, Luis completed 20 hours of community service. He was truanting from school, having curfew infraction[s], not following through with his community service hours and was admitting to smoking marijuana. On 10/7/10 an administrative hearing was held and to address these issues. In an effort to address Luis' substance abuse, referrals were made to Child Center of New York for out-patient treatment, and on 10/21/10 to Camelot residential program because we realized he needed a higher level of treatment. However, he did [not] get into Camelot due to him being rearrested.
Luis was arrested twice. [O]n 1/9/11 in the Bronx and on 1/25/11, Luis was arrested in Brooklyn and charged with Robbery 2 and with both arrest, Luis' mother posted bail on both cases and he was released a few days later after each arrest. P.O. had a conference on 1/12/11 with Luis and his mother to address the arrest and his non-compliance. Also after the arrest of 1/25/11, P.O. address this arrest as well with Luis, mother was not present, and she informed P.O. she could not take time off from work. Please note during the conference with Luis and his mother on 1/12/11, P.O. informed them that Luis was facing a violation of probation. On 1/19/11 Luis was given a referral to Daytop Village drug program. This referral was made to sustain Luis while Violation was in progress, but he did not follow through with the referral.
There was some delay in the violation of probation being filed due to police officers cancelling appointments and documentation was not legally sufficient. Subsequently a violation of probation was calendar[ed] for 3/14/11, but Luis was rearrested for a third time on 3/13/11 for Manslaughter in which the victim died. An amended petition to include this arrest of 3/13/11 is being filed on 5/3/11.
EVALUATIVE SUMMARY. Luis T. is a 16.9 years old adolescent who is presently before this Queens [F]amily Court on a violation of probation due to Truancy. on 4/7/11 there was a finding by this court to Truancy. While on probation supervision Luis continued to abuse marijuana, was truant from school, failed to follow through with referrals for drug treatment and sustained three arrests. These cases are presently pending against him.
He was afforded counseling services with the JJI program for 6 months. While with the JJI program his marijuana usage progressed and other services were offered but he did not follow through with them. He was terminated from the JJI program due to him requiring a residential substance abuse program. Ms. Bayona also reported that she did not agree with some of the [m]ethods that JJI was implementing. Ms. Bayona stated that she did not follow up with school issues due to her work schedule and did not follow through with additional drug referral because Luis's medical coverage was terminated. Academically, Luis was failing in school and showed no interest in his' education.
Based on all of the above it is felt that ... Luis is in serious need of placement in a secure facility where he will receive needed educational services die to his educational disabilities, drug treatment and psychological services pertinent to his needs.
Upon the conclusion of the proceedings upon the violation petition the Court revoked the order dated June 21, 2010 which placed the respondent under probation supervision, and based upon the evidence in the record, an order was entered pursuant to Family Court Act § 352.2(1)(c) and § 353.3(1) placing Mr. T. in the custody of the Office of Children and Family Services for a period of 12 months (Fam. Ct. Act § 360.3[6] ).
Where the respondent has been found to have committed a misdemeanor, the initial period of placement may not exceed 12 months. Where the respondent has committed a felony, other than a designated felony act, the initial period of placement may not exceed 18 months (Fam. Ct. Act § 353.3[5] ).
On May 3, 2011 the Court thereafter issued a written decision concerning the revocation of respondent's probation and the failures of the JJI program and the Department of Probation in managing respondent's probation.
Soon thereafter the Court restored the proceeding to the calendar for post-dispositional proceedings at the request of the non-party Administration for Children's Services, so that further evidence could be introduced concerning the JJI program, the MST contract service agency, and the interactions between JJI, the service provider agency, Mr. T., and Department of Probation.
The case of Luis T. was not the first time in which this Court had encountered systemic problems in the administration of the MST program by the JJI ( see, Matter of Ronald B., 23 Misc.3d 1215[A], 901 N.Y.S.2d 902, 2009 N.Y. Slip Op 51460[U] ).
V
Subsequent to the Court's May 10, 2011 order which restored the proceeding to the calendar on May 19, 2011 so that the Court might receive “any further documentation which shall be offered by the parties or other agencies or entities with interest in [the] proceeding”, the Court received two affirmations from the Executive Director of Youth Justice Programs of the New York City Administration for Children's Services, setting forth the City's view with respect to the operation of the JJI program in general and how the ACS JJI/MST program provided services to Mr. T.
These affirmations are of interest, as the affirmant is the official in charge of ACS' Youth Justice Programs, and the affirmations provide a time line and reference point for a comparison of the services that JJI represented would be offered in the Multisystemic Therapy program in letter submitted to the Court at the June 21, 2010 dispositional hearing, and the reality of what services were actually provided to Mr. T., and how JJI, the MST contract service agency, and the Department of Probation performed in this case. The Executive Director's affirmations also provide a framework for understanding the testimony of the many witnesses who ultimately appeared at the reopened hearing, and they facilitated the questioning of those witnesses.
The Division of Youth and Family Justice (“DYFJ”) was created on or about December 7, 2010 as a result of City Council legislation which merged the New York City Department of Juvenile Justice into the Administration for Children's Services (ACS”). Under the supervision of the Executive Deputy ACS Commissioner, DYFJ is charged with operating secure and non-secure juvenile detention facilities in New York City (N.Y. City Charter § 618[a] ), and it operates the City's “alternative to placement” program, known as the Juvenile Justice Initiative.
The first affirmation, dated May 19, 2011, reads as follows:
1. I am employed by the New York City Administration [for] Children's Services as the Executive Director of Youth Justice Programs. In this capacity, I oversee Children's Services' ( i.e., ACS') Juvenile Justice Initiative.
* * *
3. The Juvenile Justice Initiative Alternative–to–Placement program (“JJI”) is New York City's largest alternative-to-placement program for youth adjudicated as juvenile delinquents. The program enrolls approximately 250 youth each year. All youth enrolled in JJI are given a disposition of probation in their delinquency matter. The youth are ordered to “comply with JJI” as a condition of probation.
4. Youth enrolled in JJI receive one of several therapeutic services, all of which qualify as an “evidence-based program.” The evidence-based JJI programs JJI utilizes are: Multisystemic Therapy (“MST”), Multisystemic Therapy–Psychiatric Adaptation, and Blue Sky*.
* “Blue Sky is an experimental design that incorporates three evidence-based programs:
Functional Family Therapy, Multisystemic Therapy, and Multidimensional Treatment Foster Care. Blue Sky itself is not yet considered evidence-based as it has not been tested yet with a randomized controlled trial, but plans are underway to begin such a trial in New York City in 2012. Like MST, the Blue Sky program is a produce of MST Services, Inc., which is affiliated with the Medical University of South Carolina.
5. Evidence-based programs are those programs that demonstrate “evidence of [a] deterrent effect with a strong research design, sustained effect, and multiple site replication*.
The evidence-based programs utilized in JJI have all demonstrated, in multiple randomized controlled trials, that they are better able than other services typically used by the juvenile justice system to deter violence, delinquency, and drug use by enrolled youth. The evidence-based programs utilized in JJI have also demonstrated an overall sustained positive effect on the youth enrolled, and have all been implemented in multiple sites throughout the United States, and in some cases, in other countries.
* * “Center for the Study and Prevention of Violence website, www.colorado.edu/cspv/blueprints/criteria.html and www.colorado.edu/cspv/blueprints/modelprograms.html.”.
6. The fact that evidence-based programs have a better chance of success than other programs, however, does not mean that every youth enrolled will complete treatment successfully. Compared to other types of services, however, these programs have a better chance to effectuate changed behavior with delinquent youth. Children's Services ( i.e., ACS)
chose these services when it created JJI because of their overall strong track record.
The city's child protection service, once part of the Department of Social Services, has undergone numerous name changes over the decades, and it now refers to itself as “New York City Children's Services”. At present, the child protective agency is formally known as the “New York City Administration for Children's Services”, which is headed by the New York City “Commissioner of Children's Services” (N.Y.C Charter § 615).
7. Children's Services contracts with several non-profit organizations to provide the therapists listed above. These non-profit organizations were selected based on a competitive procurement process in 2006 that enabled Children's Services to select organizations with significant experience in providing preventive services to adolescents and their families.
8. Children's Services closely oversees the provision of the JJI evidence-based programs. The quality of casework, communications to the Court and parties on cases, and outcomes of the enrolled youth are monitored.
9. Children's Services employes a full-time JJI Program Director, Yumi Nielson, whose primary responsibility is to oversee the JJI provider agencies. Ms. Nielsen meets with each agency monthly to review outcomes from the month prior (arrests, violation of probation petitions, and unusual incidents); staffing issues and the quality of casework (measured by therapists' and clinical supervisors' model adherence scores that are calculated by [the] Multisystemic Therapy Institute); court appearances and reports; high risk cases; and communications with stakeholders, including with the Department of Probation. Ms. Nielsen is copied on all correspondence between the JJI provider agencies and the Family Court as well.
10. Ms. Nielsen also meets monthly with the MST consultants assigned to the JJI teams to discuss the progress and areas of concerns of the JJI/MST teams. In order to be a licensed provider of MST, each provider is required to contract with a certified “MST consultant.” The MST consultant is a clinician with demonstrated expertise in MST, who has been approved by MST Services to work in such a capacity. The MST consultants speak by phone with each MST team weekly about every open JJI case, to ensure that the therapists are model adherent, and to assist in the provision of therapeutic services. The MST consultants are also available to speak by phone whenever otherwise needed by the MST therapist or clinical supervisors.
11. Each JJI provider agency is also required, as a provider of MST, to submit to their MST consultant and Children's Services on a semi-annual basis an improvement plan called a “program Implementation and Data Review” (“PIDR”). The PIDR calculates outcome data of the MST team from the previous six months, and includes a written plan for improvement, based on the calculated outcomes. Approximately 20 different outcomes are measured in every PIDR. The outcomes measured include, but are not limited to, re-arrests, model adherence measurement scores for each therapist, cases closed “successfully”, percentages of youth enrolled in pro-social activity, and percentages of youth attending school on a regular basis.
12. Additionally, every six months, a researcher from the Medical University of South Carolina (MST was created by professors at MUSC approximately 20 years ago) calculates aggregate data outcomes during MST and Blue Sky treatment for each provider agency. Outcomes measured include re-arrests, violation of probation petitions, and completion of therapeutic services. Agencies are able to track their progress as a therapeutic provider, year to year, based on these reports.
13. Additionally, in collaboration with the New York City Criminal Justice Coordinator and the Criminal Justice Agency, Children's Services tracks recidivism and placement outcomes for youth enrolled in JJI, beyond the end of clinical treatment. These outcomes were first measured, and reported to the Family Court judges and juvenile justice stakeholders in each borough ( i.e., county), in 2010. Children's Services intends to continue to provide these reports to each borough at an in-person meeting on an annual basis going forward.
14. On each JJI case, the provider agency contracted by Children's Services, provides by e-mail a monthly written progress update regarding the individual case to the Department of Probation. In addition, the JJI provider agency therapist and the assigned probation officer, as well as supervisors as needed, communicate by phone, e-mail, and in person on a regular basis throughout the life of each case.
15. A JJI case is considered “completed” when the therapist, clinical supervisor, and MST Consultant, have, based on their expert clinical judgment, determined that the youth has sustained for a three to four week period most or all of the clinical goals set out at the beginning of therapeutic services. Closure of the clinical services must occur by mutual agreement of the MST team and primary caregiver of the youth, and may only occur with the approval of the clinical supervisor and MST consultant. These case closure standards are promulgated by MST, and implemented by Children's Services and the JJI provider agencies.
16. There is no set time frame for when case completion is measured. The MST provided in JJI lasts between six and twelve months; Blue Sky services last between four and twelve months. “Completion” may occur at any time within that time frame.
17. JJI does not determine whether a juvenile has successfully completed the program by determining whether he or she avoids placement out of the community in the nine months following referral to the program. Evan after the MST clinical team has determined that a juvenile has completed the program by achieving clinical goals, the youth commonly continues to receive supervision from the Department of Probation. Often, the court will monitor the case as well.
18. Pursuant to the mandates of MST and Children's Services' JJI Goals and Guidelines Manual, the JJI provider agency must terminate a case when: the clinical goals are not being met despite sustained therapeutic intervention; the therapist, under supervision by both the clinical supervisor and the MST consultant, believes, based on his/her expert clinical judgment, that continued therapy will not result in changed behavior; and/or the safety of the community is at significant risk as a result of the youth's lack of clinical progress. The JJI provider agency sends a termination letter to the Department of Probation when a termination has occurred, and discontinues its services and involvement in the case.
19. Luis T. was enrolled in JJI in Queens County on June 21, 2010 based on the order of this Court, dated June 21, 2010. The Child Center of New York (“CCNY”) was assigned by Children's Services as the agency to provide MST to him and his family.
20. CCNY began providing MST to Luis and his family on June 23, 2010.
21. The following clinical goals were set by the MST team, Luis and his family at the beginning of MST therapy: a) Luis will eliminate criminal behavior as evidence by no new arrests for stealing or trespassing as reported by Probation, parent, therapist, and police reports; b) Luis will demonstrate school success as evidenced by no unexcused absences, completion of all assignments, and passing grades as reported by attendance record, report card, and teacher/parent reports; c) Luis will decrease aggressive incidents outside of the home as evidenced by no displays of verbal aggression or property destruction as reported by his parents, Probation, or other neighborhood/community members; d) Luis will refrain from using substances as evidenced by clean urine screens for 3 consecutive months as reported by parent and probation officer.
22. The Department of Probation was notified by CCNY that these were the clinical goals set for Luis.
23. To address curfew compliance, the MST therapist and family crafted a plan to ensure 8:00 P.M. to 8:00 A.M. monitoring of Luis. It was difficult, however, for Luis' mother to maintain the intensive MST therapy schedule*
and adhere to the supervision plan. As a result, Luis' mother did not sustain the agreed-upon implementation of negative consequences for his behavior and his non-compliant behavior continued. Thus, curfew compliance proved difficult to achieve.
* “At the beginning of the treatment, MST requires the youth and primary caregiver(s) to participate in three in-home therapy sessions per week, at minimum.”
24. Luis' truancy also continued to be a concern. Again, progress was difficult, as Luis and his family were only moderately engaged in clinical treatment.
25. Luis' substance abuse was considered a priority, as Luis' curfew infractions and school truancy appeared, in the clinical judgment of the MST therapist, to be linked to his substance abuse. To address Luis' marijuana use, the therapist began working with the family to enroll Luis in pro-social activities such as a boxing class, and implementing Contingency Management, MST's substance abuse intervention. Contingency Management relies on the primary caregiver to implement rewards and consequences for “clean” or “dirty” urinalyses. By learning to implement consequences themselves, the primary caregivers become empowered to continue to monitor and respond to substance abuse by the youth, even after clinical services conclude. Again, however, with only modest family involvement, Contingency Management did not succeed in changing Luis' substance abusing behavior.
26. On or about September 24, 2010, during the time Luis was receiving services from CCNY, he was arrested for Theft of Services (“fare beating”) and received an Adjournment in Contemplation of Dismissal from Criminal Court.
27. As a result of this lack of progress, and particularly in light of his continued substance abuse, CCNY terminated Luis' JJI case on December 13, 2010, the most severe sanction available to Children's Services and the JJI provider agencies when clinical progress is not being made in an individual case. Per JJI protocols, a termination letter was sent to the Department of Probation. In the letter, CCNY recommended that Luis be enrolled in in-patient substance abuse treatment. The Office of the Corporation Counsel and the attorney for the youth were also notified * * *.
28. Between the date of JJI enrollment and the date of service termination, CCNY provided to the Department of Probation monthly progress reports concerning Luis T. CCNY and the Department of Probation also had other, regular communication regarding Luis' case.
29. After the termination of Luis' case by CCNY, pursuant to established protocols, neither CCNY nor Children's Services provided any furhter services to Luis T. or his family. Although Luis was still on probation after December 13, 2010, and was still being monitored by a probation officer, he no longer received any services from CCNY or ACS because his case with CCNY and ACS had been closed.
30. Furthermore, after the termination occurred, neither CCNY nor [ACS] had any contact whatsoever with Luis or his family, nor was there any contact between CCNY or Children's Services and the Department of Probation about Luis T. or his family.
31. In sum, Luis was enrolled in JJI from June 21, 2010, and assigned to CCNY for MST. From that time until December 13, 2010, CCNY provided therapy to Luis and the family, while regularly communicating with the Department of Probation about Luis' clinical progress and compliance with the conditions of probation set by this Court. Despite the intense efforts of the MST therapist to engage them in therapy, Luis and his mother did not fully participate in the service, often not being present [for] appointments that were scheduled to be held in their apartment. As a result, Luis demonstrated little progress, primarily by continuing to test positively for marijuana. Aside from his marijuana use, and arrest for Theft of Services * * * there were no other arrests or indications that Luis was involved in more serious criminal conduct. On December 13, 2010, based on their expert clinical judgment that MST could not accomplish anything further with Luis, and that Luis needed a residential setting to abstain from illegal substances, CCNY terminated the case, recommending that Luis be enrolled in an in-patient substance abuse program. At that time, having exhausted their ability to engage the family and influence Luis' behavior, Children's Services and CCNY notified the Department of Probation and the parties, and discontinued their contact with Luis and his family.
The Executive Director's supplemental affirmation, dated June 15, 2011, reads as follows:
1. I am employed by the New York City Administration for Children's Services as the Executive Director of Youth Justice Programs. In this capacity, I oversee Children's Services' Juvenile Justice Initiative. I am familiar with the facts and circumstances of this matter.
2. I submit this affirmation as an addendum to the [affirmation] I submitted to this Court, in connection with this case, on May 19, 2011.
3. Upon information and belief, the Child Center of New York communicated with the Department of probation after December 13, 2010, the date of the termination letter in this case, which has been previously submitted to the Court and marked as a Court exhibit in this proceeding.
4. The purpose of the communication was to schedule a final meeting between the CCNY Multisystemic Therapy therapist, Edward Lee; Luis T.; Luis T.' mother; and the assigned probation officer, Officer Griffith. The purpose of the meeting was for Mr. Lee to inform the family in person that JJI services had been terminated. This type of “final meeting” is required of provider agencies by JJI protocols.
5. The meeting was eventually held on December 22, 2010. Present at the meeting were Luis T., Probation Officer Griffith, and CCNY MST therapist, Edward Lee. Luis T.' mother participated in the meeting by telephone.
6. Following the December 22, 2010 meeting, CCNY had no further communications with Luis, his family, or the Department of Probation about his case.
A
On May 19, 2011 counsel for the Presentment Agency and the attorney for Mr. T. appeared. Although the Court has issued an order directing that the Department of Correction produce Mr. T. in Court, he did not appear on this date. The Executive Director of ACS' Youth Justice Programs appeared, as did Gineen Gray, Associate Commissioner of the New York City Department of Probation, Shauna Weinberg, Associate General Counsel of the Department of Probation, and Joan Whelan, the Queens Borough JJI Director.
The Court engaged in colloquy with those in attendance in order to define the scope of the reopened dispositional hearing and to identify the pertinent issues. The Executive Director of ACS' Youth Justice Programs informed the Court that the operation of the JJI program and the relationship of JJI and the Department of Probation are described in “the JJI Goals and Guidelines Manual”, an internal agency document, and she further explained that “[t]he protocols” set forth in the manual “go to the communication and relationship [of JJI] with the Department of Probation around behaviors that may lead to the filing of a violation” petition.
In response to the Court's statement that a violation of probation petition could have been filed against Mr. T. “much earlier than it actually was”, the Executive Director noted that “the decision to file the violation petition is really within Probation's discretion [although] there's discussions that happen about that ... there's no set protocol about the JJI provider agencies advising Probation to file violations or not advising them to file a violation. It's really a communication protocol that ... is more focused on the behaviors of the youth and not necessarily what should happen in court as a result of those behaviors”.
The Court was also provided with a series of five monthly progress reports dated July 21, 2010, August 21, 2010, September 21, 2010, October 21, 2010, and November 21, 2010 concerning Luis T., all of which had been transmitted by CCNY, the MST contract service agency, to the Probation Officer who was assigned to Mr. T., in conformance with the protocols of the JJI manual. The Executive Director explained that staff at the ACS JJI program are not routinely provided with copies of the monthly progress reports for each youth receiving JJI/MST services. Instead, the service provider agencies have direct communication with the Department of Probation concerning JJI/MST cases, and the ACS JJI staff is not advised of those communications.
The Executive Director explained the MST program being utilized by ACS in New York City. She indicated that the ACS JJI program utilizes standards which have been set by the creators of multisystemic therapy and that the social services agencies which contract with ACS are required to utilize those standards as well. Under those standards, a case is considered to be concluded “when the therapist, clinical supervisor and MST consultants have, based on their expert clinical judgment, determined that the youth is sustained for a three to four week period.” In other words, a case is successfully concluded where a juvenile is in substantial compliance with the therapeutic goals of MST for three to four consecutive weeks during the period of MST therapy. That period of compliance could come at any point of MST, depending upon the individual circumstances of the juvenile. It was noted by the Executive Director that the minimum period for MST services is six months and that the maximum temporal duration for MST services in any case is one year. Therefore, if a juvenile was unable to establish a three to four week period of substantial compliance with the therapeutic goals during the six month period of MST services, that case could be closed as a clinically successful case at the six month mark. However, a case will be deemed to be successfully completed at any time between the 6th and 12th months that the juvenile maintains substantial compliance with the MST treatment goals for three to four consecutive weeks. Conversely, it was noted that if the juvenile was never able to maintain substantial compliance with the MST treatment goals for a continuous period of three to four weeks within the 12 month period, then that case will be deemed to be a clinical failure.
There is no dispute that Mr. T. never met the criteria for having his MST case deemed to be a “clinical success” while he was enrolled in the JJI program. Consequently, the case of Mr. T. constituted a “clinical failure” under the criteria established by MST Services, Inc. and adopted by ACS.
The Court inquired as to the involvement of the ACS JJI staff with the Department of Probation and the contract agencies with respect to juveniles receiving MST services. According to the Executive Director, ACS JJI staff meet regularly with the staff of provider contract agencies, the ACS JJI program director has monthly telephone communication with the provider agency directors and during these contacts, the JJI staff receives information from the provider agencies as to the status of the JJI cases assigned to that provider agency. Insofar as individual cases are concerned, the JJI project director might receive information about a particular juvenile only where the juvenile is considered to be a “high risk” case, meaning that the juvenile was at high risk of possible failure to achieve clinical success in the MST program.
B
The hearing continued on June 16, 2011 and the Court received testimony from Jennifer Glover, L.M.S.W., the JJI Program Director at the Child Center of New York (“CCNY”), the contract service provider agency which had been assigned to provide MST services to Luis T. According to Ms. Glover, as the JJI program director for CCNY she supervised Jennifer Vinces, the clinical supervisor who supervised Mr. Edward Lee, the MST therapist who was assigned to provide services directly to Luis T. and his family. As program director, Ms. Glover engaged in weekly consultations concerning JJI cases being serviced by CCNY and she participated in one emergency meeting at CCNY concerning Mr. T. According to Ms. Glover, CCNY has approximately 24 to 30 juveniles enrolled in its MST program at any one time. An MST therapist is assigned to work with each juvenile “and their families”, and the MST therapist is supervised by a clinical supervisor employed by CCNY. Ms. Glover who is the JJI program director for CCNY in turn supervises the clinical supervisors and provides administrative guidance to those supervisors.
Ms. Glover also indicated that CCNY retained the services of an “MST Consultant”, Dr. Jeff Randall, who works for “MST Services” which she indicated is a company known as “Evidence Based Services”. The role of the “MST Consultant” is to oversee the clinical direction of MST cases “or clinical information that the supervisor is providing” to the MST therapists who work directly with the juveniles and their families. According to Ms. Glover, agency staff and Dr. Randall have regularly scheduled conference calls on a weekly basis. Dr. Randall is available to participate in case reviews by telephone with the CCNY JJI staff, and he analyzes “whether the interventions are working” for the MST cases being serviced by CCNY. In other words, Dr. Randall serves as an MST quality control analyst in that “he just would make sure that we are following the [MST] analytic process. He really encourages us to look at what other systems or other viability there is with respect to the caregiver ... we try to do whatever it takes to make sure that we are covering all the bases. That's what his responsibility is.”
Ms. Glover recalled that she had met Luis T. on “one occasion” while he was receiving MST services from CCNY, at an emergency meeting conducted at CCNY's offices in “midAugust [or] early September” of 2010. According to Ms. Glover, the purpose of the emergency meeting was to address the failure of Luis to adhere to the clinical expectations of the MST program, as Luis continued to test positively for the presence of marijuana while enrolled in the CCNY MST program, he has “some curfew violations”. Additionally, the meeting covered the monitoring of Luis by his mother, step-father, and older sister, and whether or not Luis and his family were “following through with the interventions that Eddie [Lee] had put in place.” Ms. Glover noted that the meeting also served the purpose of allowing CCNY “to try to get a better understanding as to why those things were not happening.”
Although Luis and his family were experiencing difficulties in adhering to the expectations of CCNY, Luis remained enrolled in CCNY's MST program as his case was considered to be viable or, as stated by Ms. Glover, the case still had “clinical life” which meant, in terms of the JJI program, that “there is still the ability for us to work with the family ... the family and the supports are still involved and still are willing to assist the client in being able to sustain goals and to reach the [clinical] goals we have set.” In Luis' case, the goals were to eliminate criminal behavior, to ensure school attendance, decrease aggression, to eliminate the use of drugs.
With respect to the goal of eliminating the involvement of Luis in further criminal activity, CCNY placed emphasis on monitoring Luis and tracking his whereabouts on a continuous basis. This was to be accomplished by having the adults in his family be aware of Luis' whereabouts 24 hours a day, enrolling him in “pro-social activities” to occupy his free time, and in “making sure there are consequences and rewards for his ability to follow through.” As far as curbing the abuse of drugs by Luis, CCNY “use[d] the multisystemic type plan, contingency management, which is a very family-focused treatment model for dealing with substance[ ]” abuse, and because Luis was testing positively for marijuana usage, CCNY exerted efforts to involve his family in “making sure that people, places, and things are modified” because he was “having difficulty” in refraining from marijuana usage.
Another significant treatment goal was to ensure that Luis attended school regularly. CCNY's protocol was to initially arrange a meeting with staff at Luis' school, and to have his mother become familiar with school officials, such as the attendance teacher “so that she can have a stronger relationship with the school” and be aware of whether Luis was attending school and going to class.
Ms. Glover stated that when CCNY first began to provide MST services to Luis and his family they were “interested in participating in services” and the family “had additional supports that are necessary in order to follow through with the intervention; so there was his biological mother, there was a boyfriend, his older sister, there was a godparent that was also involved.” Insofar as Luis was concerned, Ms. Glover noted that he “had his own strengths” which meant that Luis “did have a lot of potential [as] he completed the Job Net program, a vocational training program, and I think that he, even though there were some missed sessions, ... he did have contacts with the therapists. They tried to do whatever it took to participate in the program. Unfortunately, there were barriers.”
When asked by the Court whether Luis had ever succeeded in abstaining from the use of drugs, specifically marijuana, Ms. Glover indicated that Luis “tested positive within two days of us getting the case. He did test negative in July [2010] ... and then there was some other like sporadic testing of negative for substances.
” When the Court observed that the JJI progress reports which were sent to the Department of Probation by CCNY on the 21st of each month indicated that Mr, T. tested positively for marijuana on June 23, 2010, July 14, 2010, August 17, 2010, September 15, 2010, October 13, 2010 and November 3, 2010, Ms. Glover observed that CCNY administered random drug tests “throughout the month, so the last drug test could have been the one that was reported on these probation reports.”
There are no entries in the probation department or CCNY records which would substantiate Ms. Glover's assertion that there were periods of time in which Mr. T. tested negative for marijuana while he was enrolled in the JJI/MST program.
The Court inquired about the process of terminating a juvenile from the JJI/MST program. According to Ms. Glover, CCNY follows the termination criteria applicable to all MST programs, that is that the juvenile will be terminated from the MST program “when the clinical goals are not being met despite sustained therapeutic intervention, the therapist under the supervision by both clinical supervisor [Ms. Vinces], the MST consultant [Dr. Randall], based upon their clinical judgment that continued therapy will not change the behavior and put[s] the safety of the community at risk.”
Ms. Glover explained that the decision to terminate a juvenile from the MST program “is a joint decision between the clinical supervisor [and] the [MST] consultant” and that she “is also a party to that [decision].” In addition, the decision to terminate seems to involve personnel of the Department of Probation, as Ms. Glover indicated that “we also collaborate with the Department of Probation and the family as well”, although there was no elaboration of what role, if any, the Department of Probation or an individual probation officer plays in the decision making process relating to termination from the MST program. Ms. Glover merely mentioned a process whereby the Department of Probation is kept informed of a juvenile's participation in MST services by means of regular verbal and written communication from CCNY.
C
Jennifer Vinces, the supervisor of the JJI team at CCNY appeared before the Court to answer questions concerning Luis T. Ms. Vinces, who has been employed by CCNY as a “senior therapist and supervisor” for more than four years was the direct supervisor of Edward Lee, the MST therapist for Luis T. and his family, and as such she “was very intimately involved with the T.-Bayona family.” According to Ms. Vinces, who is a licensed mental health counselor ( see,Education Law § 8402), and a former Child Protective Specialist with the New York City Administration for Children's Services, the JJI providers at CCNY sought to ensure that the family was “appropriately connected to services” which is what Mr. Lee and the JJI staff at CCNY attempted to do in this case.
According to Ms. Vinces, CCNY considered the case of Mr. T. to be “high risk” which meant that the case received special attention during weekly telephone conversations which Ms. Vinces had with Dr. Randall, the MST consultant, and during bi-weekly telephone calls to the responsible Supervising Probation Officer at the Department of Probation.
This case was classified as a “high risk” case “pretty much from the onset” and “under the multi-systemic therapy, we try to find out what the barriers are and the drawbacks, and take whatever action we can to address those high risk needs.”
Although this Court was informed by Jennifer Glover that the MST provider agency would provide reports to the JJI program director at ACS in “high risk” cases, there is no indication that CCNY provided information concerning Mr. T. directly to ACS personnel, or that ACS JJI personnel attempted to keep themselves informed of the developments in this “high risk” case.
By October of 2010, CCNY was aware of the continuing problems in trying to obtain cooperation and “engagement” by Luis T. and his family, and the JJI staff at CCNY were aware that the Department of Probation would soon convene an administrative hearing to address the respondent's continued violations of the terms and conditions of his probation. CCNY was also aware that the Department of Probation might at some point decide to file a violation of probation petition with Family Court. Nevertheless Ms. Vinces indicated that “there were a lot of things that determined whether or not we could continue working with this family, and there were challenges, and in efforts to assist the family, we wanted to ensure that they were connected to services” regardless of what actions were eventually taken by the Department of Probation.
According to Ms. Vinces, CCNY began to make preparations to terminate Luis T. from its JJI program long before the official termination letter was signed by Jennifer Glover on December 13, 2010. Ms. Vinces stated that “[t]here was a series of preparation for this family to be terminated. However, there were barriers to getting them connected to services. We did not terminate at that point. * * * The ball had been rolling since October, when there was an administrative hearing held [and] my bi-weekly calls with the supervising probation officer, I had followed up with. There were about two weeks [where] I tried to see if there was any improvement or adherence to their contract and, at that point, there was another recommendation made to me by the supervising probation officer in which they had moved from exploring outpatient to inpatient” drug treatment.
According to Ms. Vinces she had telephone conversations with Supervising Probation Officer Diana Comvalius on November 15, 2010 and November 30, 2010 concerning Luis T. and the possibility of his termination from the JJI program. These conversations appear to have been occasioned by the Department of Probation's determination to have Luis T. enter a residential drug treatment program. There is nothing to suggest that the JJI/MST staff at CCNY initiated the move toward terminating Mr. T. from the JJI program. According to Ms. Vinces, she was told to “assist the family to ensure that Luis had been enrolled in the inpatient program” during a November telephone conversation with SPO Comvalius and the record reflects that CCNY personnel made such efforts up until December 22, 2010 which is the date of the last contact between CCNY staff and Mr. T. and his mother.
Although Ms. Vinces was advised by the Supervising Probation Officer in November that the Department of Probation intended to enroll Mr. T. in a residential substance abuse program, CCNY did not terminate Mr. T. from the JJI program at that time. Ms. Vinces explained that “in terms of the ultimate decision of moving towards a termination, that's a decision that's made collaboratively with all the stakeholders, which means that there is communication with the Department of Probation, there is ongoing discussion with our MST consultant, and ongoing discussion with the MST team, that comprises the supervisor, Ms. Glover.” Under the established process, there is no attempt to involve the judge who placed the juvenile under probation supervision and who directed that the juvenile participate in the JJI/MST program. The lack of judicial involvement might stem from an understanding that a judge is not a “stakeholder”, or perhaps out of a concern that the judge might invoke the powers granted to the court to compel action not necessarily desired by ACS, the MST provider agency, or the MST experts at the
Medical University of South Carolina.
Ms. Vinces stated that the collaborative discussions were held in this case. However, Mr. T. was not terminated from the CCNY JJI program because there was a determination made “to make sure this family had been transitioned from a high intense program like ours to having no services, but we wanted to make sure they were moved to the inpatient referral.” Apparently at that time no one with the JJI/MST program at CCNY thought it important to notify the Court that the respondent had committed multiple continuous violations of the conditions of probation, or that he was about to be terminated from the JJI program. Indeed, the testimony of Edward Lee, the JJI caseworker, which is described in the next section of the decision, indicates that the staff of the CCNY JJI program took steps to dissuade Ms. Bayona from asking the Department of Probation to come back to Family Court to get her son off the streets.
Ms. Vinces' testimony suggests that she really saw no pressing need to terminate Luis T. from the JJI program due to his behavior, but rather his eventual termination was due to the probation department's decision to enroll him in an inpatient substance abuse treatment program. According to Ms. Vinces, a JJI/MST case will be maintained for so long as a case has “clinical life”, which means that “there is ongoing engagement into treatment and ... the caregiver's ability” to engage in JJI/MST services. Asked to evaluate the “engagement” of Luis T. and Ms. Bayona in the JJI program, Ms. Vinces inexplicably stated that their engagement was “between moderate and less than moderate”, and that Ms. Bayona's ability to put the services of MST into place was also “about the same.”
Ms. Vinces informed the Court that the CCNY JJI program plays no role in the decision as to whether a violation of probation petition is filed against a juvenile who is enrolled in its JJI/MST program. She indicated that the decision as to whether to file a violation petition is left to the Probation Officer and Supervising Probation Officer, although the JJI/MST staff at CCNY are involved with the Department of probation in “ongoing discussion[s] on what are the family's needs and either interventions that can be put forth to assist the youth in getting back on track.” Ms. Vinces noted that while the Department of Probation does communicate with the CCNY JJI program in order to ascertain “whether the JJI program still wishes to work with [a] family”, CCNY “do[es] not have a direct role” in deciding whether a violation petition is filed by Probation.
Ms. Vinces did indicate however that CCNY's position as to whether the JJI program wished to continue to work with a particular juvenile and his family did influence the Department of Probation's decision as to whether or not to file a violation petition. She explained, that CCNY's position is “not the only factor. I should say that there are other factors involved in whether the Probation Officer or the Department of Probation sees that there are additional strengths within the case that may influence them to that decision.”
With respect to Luis T., the Court inquired whether Ms. Vinces could identify any progress made during the period in which he had been enrolled in the JJI/MST program. She indicated that “there were small gains that were achieved by Luis and his family in regards to the actual completion of the Job Net program and more ongoing involvement in family sessions and the one [negative] drug screen.” Ms. Vinces indicated that there is no formal mid-program review of how a particular juvenile is performing in the JJI/MST program, although the progress or lack of progress in a case is something that is regularly assessed, especially at the time that monthly reports are made to the Department of Probation, and in telephone conversations with the Probation Officer, Supervising Probation Officer, and the agency's MST consultant.
Given the clear and nearly complete failure of Mr. T., his mother, and other adult family members to fully engage in the MST services offered by CCNY, the Court inquired why Mr. T. was kept in the JJI program for as long as he was. According to Ms. Vinces:
The way I can best describe our time in treatment is try to create some more of a time line and graduated enhancement in treatment in treatment to address the needs. Pretty much during the onset of treatment we provided the family sessions that included [the] contingency management protocol to address the substance abuse issues, but in addition to that, there were also directions created around safety plans and monitoring plans because, as you know, there were unusual incidents that occurred. We decided to continue the treatment, the application of the contingency management required additional support of services where we had the introduction of the social work intern, who also provided an additional support into specifying more individual needs. The contingency management was in collaboration with the therapist in order to provide that specific area of treatment. The next step that was made was for the referral for the outpatient treatment facility at the Jamaica Family Center, which we had hoped could address some of those needs.
The Court noted at that point that Mr. T. did not enroll in outpatient substance abuse treatment at the Jamaica Family Center, and Ms. Vinces replied that his failure to enroll in that program “was a barrier” to that aspect of the agency contingency management program. When efforts to encourage Luis to enroll in the outpatient program proved useless, CCNY then proceeded to consider “a higher level of care” which was the referral of Mr. T. to the Camelot inpatient drug rehabilitation program. That of course did not occur until the Department of Probation had itself decided that Mr. T. needed to enter an inpatient program, whether or not CCNY was still willing to work with the respondent in the JJI/MST program. In other words, the decision to enroll respondent into residential drug treatment, which would end his ability to continue in the JJI/MST program, was made solely by the probation department.
When asked whether CCNY would have continued Mr. T. in the JJI/MST program had he enrolled in the outpatient substance abuse treatment program, notwithstanding that he was smoking several marijuana “blunts” each day, he was not going to school, not attending counseling sessions with the MST therapist, he had been arrested for fare beating on his way home from a meeting with his probation officer, he had been involved as the victim in anapparent violent street robbery, and he generally failed to obey his curfew, Ms. Vinces was equivocal. She indicated that “[t]he two things, at that point, that would determine for us whether or not we continue to work with the family [are] whether or not there is that engagement into direct interventions, of which we will be pulling in resources for the ecology, which did not work so well, and the other would be in regard to the family being able to carry out those interventions. So it would have been based on those two things, which would likely have been an earlier termination date than that December date.”
D
Edward Lee, the MST therapist who is employed by CCNY and was assigned to the case of Luis T., testified before this Court over parts of two days. Mr. Lee holds a Master's Degree in Counseling Psychology, and at the time of his testimony during the Summer of 2011, he had been working with the CCNY JJI program for approximately two years. In the two years prior to his employment with CCNY, Mr. Lee had been working for New York Foundling, an authorized social services agency, and a JJI service provider agency in both New York County and Bronx County.
According to Mr. Lee, he carries a case load of six juveniles who are receiving MST services from CCNY, and he carried an identical number of cases when he was employed at New York Foundling. Mr. Lee first met Luis T. in late June of 2010 after the Court had placed Mr. T. on probation. Prior to meeting the respondent, Mr. Lee had access to the reports of the Department of Probation and the Mental Health Services Clinic, and the June 16, 2010 JJI “acceptance letter” from ACS, all of which had been introduced into evidence at the dispositional hearing. There is no indication that Mr. Lee was ever provided with a copy of the order of disposition which set forth the specific terms and conditions of probation imposed by the Court when probation supervision had been ordered.
The Court observed that the reports by the Department of Probation and the Mental Health Services Clinic set forth several pressing problems confronting Mr. T. and his family, including his abuse or marijuana, tendency towards violence, and his failure to attend and successfully complete school. The JJI acceptance letter submitted by ACS at the dispositional hearing contained a highly detailed plan of action and specific services which were to be offered to Mr. T. under the guise of MST. The Court inquired what action was taken by CCNY in order to address respondent's problems. With respect to respondent's abuse of marijuana, Mr. Lee recalled that CCNY implemented “contingency management”, which he described as “working with the family and the child on a couple of things ... it's designed to deal with the child's psychology to find out what contributes to his substance abuse. It's [designed] to help the family understand what contributes to the use and to help to find out ways to avoid those factors.”
The Court further observed that Mr. T. had serious academic problems. He failed to attend school regularly, when he did attend he frequently missed classes, and he was not passing his courses. Mr. Lee stated that in order to address these academic and behavioral issues, CCNY attempted “to have Luis attend a pro-social activity or a program out of the community. One program we identified was a boxing program, because he enjoyed boxing.” CCNY also enrolled Mr. T. in Job Net, a program intended to help him obtain employment during the summer, but there is no indication that Mr. T. was employed in the summer of 2010. According to Mr. Lee, “[w]hen school did start, there was a plan to involve his family ... and his mother in particular, as time went by, to take him to school. Someone would be home when he came home”.
Mr. Lee indicated that he would prepare weekly handwritten notes concerning his work with Luis T. and those notes would be shared with the JJI/MST team at CCNY. Each month the notes would essentially be incorporated into a “report card” which would be forwarded to the probation officer assigned to Mr. T. These “report cards” are typewritten documents prepared by CCNY which “encapsulate or summarize the month's work” with each juvenile receiving MST services and these reports were then sent by e-mail to the Department of Probation.
Mr. Lee recalled that Mr. T. tested positively for marijuana soon after their first meeting. In fact, according to Mr. Lee, each drug screening administered to Luis T. beginning with the first in late June 2010, was positive for marijuana, except for one screening performed “in the beginning of July” 2010 when Mr. T. “tested negative for all substances.” Due to the fact that Mr. T. essentially tested positively for marijuana throughout his enrollment in the MST program, CCNY implemented “contingency management” which was to be offered to Mr. T. throughout his enrollment in MST. Mr. Lee indicated that the contingency management program is part of the MST program, but contingency management is specifically designed to treat the juvenile's substance abuse problem within the MST program of services, although an out-patient substance abuse program may be utilized where a juvenile has a pervasive drug abuse problem.
Under the JJI program, the MST provider never refers a juvenile to an in-patient substance abuse program, and the issue of substance abuse is addressed within the package of contingency management services provided by the MST provider agency. As Mr. Lee explained, “the JJI program would not want to kind of work in collaboration” with an outside program, “because it's two people doing the same thing.” JJI/MST is intended by its creators to be a self-contained program and participation in services other than those offered by the MST provider agency does not conform to the MST model.
In Mr. T.s' case, his assigned probation officer and her supervisors finally insisted that respondent be enrolled in an in-patient program because of his failure to enroll in an outpatient substance abuse program and his continuous positive drug screens for marijuana. This led to the termination of the respondent from the CCNY JJI/MST program in December 2010. As noted by Mr. Lee, the admission of a juvenile to an in-patient substance abuse program is contrary to the protocols of the MST program, as the MST services model assumes that the service provider will have unfettered access to both the juvenile and his family. If either the juvenile or the responsible adult family member are removed from the community for any reason (such as admission to an in-patient drug program, prolonged hospitalization, or incarceration), MST services are terminated by the provider agency.
Mr. Lee confirmed that the usual period for which MST services are provided to a juvenile enrolled in the JJI program is 6 months and that “the majority of the cases do go at least six months.” Mr. Lee explained that an MST case would be “closed” prior to the six month mark if, for example, a juvenile was arrested and incarcerated or the juvenile entered a residential drug rehabilitation program while enrolled in the MST program. Under such circumstances, Mr. Lee explained, the case is closed because the MST counselor no longer has access to the juvenile in order to provide counseling. In Mr. T.'s case, the decision to terminate him from JJI/MST resulted not from his criminal activity subsequent to being placed on probation by this Court, but rather the JJI/MST case was closed “because of the referral to the inpatient drug treatment program” by the Department of Probation. Although Mr. T. regularly had drug screens which were positive for the usage of marijuana, CCNY never sought or apparently considered an inpatient drug treatment program for the respondent as that type of residential setting is contraindicated by the protocols of MST.
Mr. Lee further explained that the MST provider agency would continue to work with a juvenile and his or her family as long as the MST counselor had access to the juvenile, meaning that the juvenile was not incarcerated, hospitalized, or enrolled in residential drug rehabilitation, so long as there was “clinical life” or “engagement”, meaning that whether or not the juvenile was complying with the court ordered conditions of probation, the MST provider agency will continue to provide services so long as “the therapist and the family would be able to work together, have the same goals and have the ... same direction in treatment.”
When questioned as to whether CCNY achieved any “successes” in providing MST services to Luis T., Mr. Lee indicated that some of the “smaller goals” set by the MST provider agency had been met. In particular, Mr. Lee pointed to respondent's completion of “the training at the job internship program” (Job Net) during the summer of 2010, although Mr. T. never obtained employment as a result of his having completed the job internship program. According to Mr. Lee, “he completed the training and received a certificate for completion. However, at that point ... they had began searching for jobs, but after he had completed the training, he did not attend any more meetings.” Mr. Lee also indicated that another “small goal” consisted of “when the family would report improvements in, I guess, attitude or even curfew abidance or communication within the family. So those were the very small goals. They were sporadic .”
According to Mr. Lee's testimony, the decision to enroll Mr. T. in “Camelot”, an inpatient substance abuse program was made by the Department of Probation around October 21, 2010, and Mr. Lee assisted Ms. Bayona in identifying a program for Luis at the request of respondent's probation officer. At this point there was a “joint decision” by CCNY and the Department of Probation to terminate Mr. T. from the JJI/MST program, and CCNY e-mailed a letter dated December 13, 2010 to that effect to Probation Officer Griffiths. Mr. Lee candidly stated that although Mr. T. continued to test positive for marijuana while enrolled in the JJI/MST program and he had done little to meet the goals set out when MST services began as he had “a low level of engagement” in MST, he “did not” personally support the decision to refer Luis for inpatient drug treatment, which resulted in his termination from the JJI/MST program.
The Court noted that during the time in which Mr. T. had been enrolled in JJI/MST services with CCNY, approximately June 23, 2010 through December 13, 2010 (the date of the termination letter), Mr. T. continually smoked marijuana, he failed to attend school except on rare occasion and that when he did appear at school he cut classes, he had been issued a summons for fare beating on the subway, he was injured in a fight on the streets, he regularly violated his curfew, and he failed to achieve any measurable success in the MST program. Given these circumstances, the Court asked Mr. Lee whether he believed that maintaining Mr. T. in the MST program at CCNY for nearly 6 months was appropriate. Mr. Lee's response indicates that he thought that the decisions made by the JJI/MST staff at CCNY were appropriate. According to Mr. Lee,
“in this case we had started with the family in June [2010] and Luis continued to smoke. Because there were things that were changing. for example, the social work intern was used for assistance, [and] since that did not work out, the next thing was the outpatient substance abuse treatment. A referral was made by the probation officer and, at that point, since that did not work out, it kind of kept moving forward. So it wasn't six months of the same things ... we tried different things [hoping] that there may have been a different outcome.
Mr. Lee indicated that the MST staff at CCNY essentially exhausted all of the therapeutic resources available to them in trying to assist Mr. T. During the period in which Mr. T. received MST services from CCNY, Mr. Lee had occasion to discuss the case with Dr. Jeff Randall, the MST consultant retained by CCNY.
One of the concerns raised by Mr. Lee with Dr. Randall was how to improve the “engagement” of the T. family in MST services. Mr. Lee indicated that there were problems encountered in attempting to engage Mr. T. and his mother in the MST services offered by CCNY. Mr. Lee indicated that MST “Contingency Management” was actually put into place in this case. According to Mr. Lee the contingency management plan in this case consisted of locating a “boxing program” and other “pro-social activities” for Mr. T., although Luis never enrolled in these activities based on a lack of space in the programs or their cost.
Jeff Randall, Ph.D., is an Assistant Professor in the Department of Psychiatry and Behavioral Sciences at the Medical University of South Carolina.
The overall engagement of Ms. Bayona and her paramour in MST services was characterized as “low”. For example, while the MST services plan presented to the Court provided for an adult (Ms. Bayona, her paramour, or Luis' older sister) to accompany Luis to school each morning to ensure attendance, as far as Mr. Lee was aware, this only happened once, the first day respondent was enrolled in JJI/MST, when his mother and her paramour brought him to school. The participation of Ms. Bayona's paramour and Luis' godmother appears to have been limited to their “monitoring” Luis when his mother was at work. However, the evidence adduced at the hearing demonstrates that these adult family members were not involved with Mr. Lee and they provided little or no supervision of the respondent. The only notable involvement was that Cecily Bayona occasionally participated in some of the MST sessions conducted at the residence by Mr. Lee.
Mr. Lee stated that one significant component of MST services was regular meetings with the juvenile and his parent and other family members in their home. According to Mr. Lee there were often instances where he traveled to the T. home for an appointment only to find that Luis, his mother, or both of them were not at home.Mr. Lee indicated that the MST protocol called for the MST therapist to visit the home of the juvenile three times a week. Both Mr. T. and Ms. Bayona missed these pre-scheduled appointments at the beginning and at the end of CCNY's involvement with the family, and in the Fall of 2010, one or both of them would not be home when Mr. Lee arrived at least “once per week.” Mr. Lee explained that I would go three times. In the beginning, there were also missed meetings. Usually what we would try to do is reschedule them or change the time. If there are ever times that I had gone and they were not there, sometimes I would wait. I would call them and wait.”
Upon consulting the monthly reports made by Mr. Lee each month during respondent's enrollment in JJI, copies of which were forwarded to the Department of Probation, Mr. Lee estimated that there were 19 occasions when he arrived at Ms. Bayona's apartment to meet with Luis and Ms. Bayona, only to discover that Luis was not present. On some of these occasions, Luis claimed to be at the Job Net program, but Mr. Lee was unable to verify that claim. Indeed, Luis actually missed many appointments at Job Net and he was essentially removed from the program by Job Net staff in July or August 2010. At some point in late August and September, Luis returned to Job Net with the assistance of Mr. Lee and CCNY and he eventually completed the program.
Mr. Lee also experienced difficulties in having Ms. Bayona participate in the therapy sessions at her home. According to the progress notes, Ms. Bayona “missed about ten meetings”, and “[t]here were many meetings that she was very late”, which affected the quality of the therapy provided by Mr. Lee. Although Mr. Lee attempted to schedule his meetings in order to ensure that Ms. Bayona would be present, this was largely unsuccessful and “didn't seem to make much of an impact.” According to Mr. Lee, when he commenced MST with Luis and his mother, his subjective belief was that Ms. Bayona would be an “engaged” caregiver for her son, meaning that she was willing to participate in MST and enforce the goals of the treatment.
Over time, Mr. Lee's opinion changed as he found that Ms. Bayona was less engaged that he first thought. Mr. Lee explained that “[t]here wasn't a lot of follow through with the behavior plans that we had created”, and Ms. Bayona proved unable to monitor her son's coming and going or to enforce a curfew he would obey.
Given the contents of the JJI acceptance letter presented to the Court at the June 21, 2010 dispositional hearing, Mr. Lee's initial belief was certainly reasonable.
Mr. Lee indicated that Luis chronically violated the curfew set by Ms. Bayona. In fact, on one occasion when Mr. Lee scheduled a therapy session at Ms. Bayona's home Luis arrived home at 9:00 P.M., thereby violating his curfew and simultaneously missing a scheduled therapy session. In Mr. Lee's view, Ms. Bayona was completely unable to compel Luis to obey a curfew, which was one of the critical components of the behavior modification and supervision plan devised by CCNY. Ms. Bayona essentially informed Mr. Lee that she could not control Luis and he came and went whenever he pleased.
Another critical component of the MST plan implemented by CCNY was adult monitoring of Luis' school attendance. The plan called for Ms. Bayona, her paramour, and even Luis' older sister, to accompany him to school in the morning to ensure his attendance. Aside from the first day of MST, Ms. Bayona never again accompanied Luis to school, as she was working and also caring for Luis' infant half-sibling. Ms. Bayona's lack of engagement in the MST program continued through August of 2010. On August 26, 2010, Mr. Lee noted that Ms. Bayona indicated that she “was fed up” with the program, and at the same time, Luis told Mr. Lee that he was not interested in the meetings and rules required by the MST program. By the end of October 2010, Mr. Lee's notes indicated almost no engagement with the MST program by Luis and Ms. Bayona, both of whom were reported to be despondent over the respondent's circumstances at that time.
The Court inquired whether Mr. T. was “high” or intoxicated when Mr. Lee came to the home for appointments. Mr. Lee replied that Mr. T. sometimes appeared to be high at the MST sessions, although “it wasn't frequent, but there were times that he did appear high.” On those occasions when Mr. Lee arrived at the T. home for appointments and found no one at home, he would enter a notation into his weekly notes, although these missed appointments would not be included in the monthly report which was submitted by CCNY to the Department of Probation.
No explanation for the omission of missed in-home MST therapy sessions in the monthly reports to the Department of Probation has been provided. The failure to inform the juvenile's probation officer of instances where the juvenile is not at home when the MST therapist arrives obviously prevents the Department of Probation from taking any action as to that issue.
The documented failure of Mr. T. to attend school or to be engaged in obtaining an education was known to Mr. Lee and CCNY. The JJI service provider assigned an “educational specialist” to assist Mr. T. and his family with school issues when CCNY began providing services in late June 2010. However, Mr. Lee indicated that the “education specialist” left CCNY in August 2010 which was before the 2010–2011 school year began, and Mr. Lee was left to handle the functions of the educational specialist for Mr. T. along with his role at MST therapist.Mr. Lee also had regular communications with respondent's probation officer, Evelyn Griffith, and Mr. Lee met with her personally on several occasions towards the end of respondent's enrollment in the JJI/MST program. According to Mr. Lee, Officer Griffith was aware that Mr. T. was not succeeding in the MST program and that he was not complying with the conditions of probation imposed by the Court. In September or October of 2010, Officer Griffith told Mr. Lee that there were grounds to file a violation of probation petition against the respondent but “that would not give him the two week time frame to see if there would be some improvements.” Mr. Lee recalled that he advised Officer Griffith at that time that he was still willing to work with the respondent and his family. Mr. Lee stated that he agreed with Officer Griffith's decision not to file a violation petition in September and October so as to allow Mr. T. more time to comply with the rules of the JJI/MST program and to make additional efforts to improve the engagement of the respondent and his family in MST services.
i
Respondent's attorney, Angela T. Starr, also had the opportunity to pose some questions to Mr. Lee. Mr. Lee reviewed his notes and clarified that at the beginning of MST treatment in late June and in July 2010, both Mr. T. and Ms. Bayona were fairly consistent in meeting with Mr. Lee at their scheduled appointments. Mr. Lee also confirmed that early in July 2010 at the outset of the MST services and throughout the following six months, Ms. Bayona made clear that Luis was not observing his curfew of 6:00 P.M., that he would return home at 10:00 or 11:00 P.M., or not at all. Ms. Bayona also expressed her concern that her son continued to test positively for marijuana, and she informed Mr. Lee that she believed that Luis was using drugs in addition to smoking marijuana. Mr. Lee's response was to provide drug testing supplies to Ms. Bayona along with instructions as to how to conduct drug testing at home.
On July 20, 2010, approximately one month after CCNY began providing MST services, Ms. Bayona told Mr. Lee that she was very concerned that she had yet to observe any positive change in her son's behavior. Mr. Lee's response was to advise Ms. Bayona to hide her 16–yearold son's shoes and clothing to keep him from leaving the apartment. Mr. Lee also suggested that Ms. Bayona withhold other privileges from Luis, such as confiscating his cell phone, in order to punish him for bad behavior.
Ms. Bayona made clear to Mr. Lee that she considered the behavioral modification tools which he was proposing were simply unworkable or nonsensical, or as Mr. Lee stated, Ms. Bayona “did not appear comfortable with the suggestions I had.”
This system of reward and punishment is an integral part of multisystemic therapy, especially the “contingency management” component, where “youth are rewarded or punished for drug use” or non-use. While this type of behavioral modification system might be effective for younger children, this case illustrates that it will be ineffective where older children or street wise and self-sufficient young adults like Mr. T. are involved.
Mr. Lee recalled a conference which was conducted on September 14, 2010 at which he and Ms. Bayona were present. Mr. Lee recalled that at that meeting, respondent's mother stated that she would have no problem having her son “locked up again” if that was necessary to “save him.” Ms. Bayona also indicated her belief that the three months during which Luis had been detained previously “was not sufficient.” Sometime after the September 14, 2010 meeting, Mr. Lee reported to the Department of Probation concerning respondent's failure to perform community service, his failure to obey his curfew, his disappearing on weekends, his continuing use of marijuana, and his failure to attend school on time if at all.
Although aware of Ms. Bayona's frustration with her son's continued misbehavior and infractions, as well as her belief that Luis should be incarcerated again, Mr. Lee chose not to inform the probation officer or her supervisor of the mother's desire that Luis be removed from the community for his own good. Instead, Mr. Lee decided to discuss the matter with the out-of-state MST consultant, Dr. Randall, who was unlikely to recommend that Mr. T. be terminated from the JJI/MST program. Because Dr. Randall and Mr. Lee both appeared to be of the opinion that “the main concern was safety” of the respondent, they decided to try “something that is probably going to be more effective than to tell the probation officers.” According to Mr. Lee, “we felt the best thing to do to address” Ms. Bayona's statement that Luis should be removed from the community, “would be to create some sort of monitoring plan because Ms. Bayona wanted to tell the Probation Officer ” (italics added), which was apparently a situation that CCNY's JJI staff sought to prevent from happening as it increased the possibility that Luis would be removed from the JJI/MST program.
By late October 2010, Mr. T. and his mother were hardly engaged in the MST services which Mr. Lee attempted to provide. When asked whether Luis would have continued in the MST program beyond October had the Department of Probation not decided to enroll Luis in an inpatient substance abuse treatment program, Mr. Lee thought not. He explained that “the engagement was continuing to get worse. We tried different ways of addressing it and different ways to get Luis to improve some of his behaviors”, but CCNY was unsuccessful. In addition, Ms. Bayona's lack of participation also made the continuation of MST services unlikely. Mr. Lee noted that Ms. Bayona “was ineffective” in supervising Luis, she “was not able to have much influence to have him do things different”, and she regularly missed therapy meetings. While Mr. Lee reached out to other adult family members, such as Luis' godmother and his aunt, these adults were either not interested or were unable to assist Ms. Bayona is monitoring Luis.
Other factors militating against the continuation of MST services were the continuous violations of curfew and Luis' persistent failure to attend school. There was simply no adult who could ensure that Luis actually went to school and that he at least attempted to obey his curfew. Perhaps the major negative factor was Luis' continuous abuse of marijuana. Mr. Lee attempted to address Luis' drug use, which had escalated to smoking two “blunts” per day, through the contingency management process of MST, but that had no significant impact. Mr. Lee explained that in contingency management the MST therapist tries “to figure out [the] factors that contribute to someone's substance abuse, we try to build a self-management plan; we try to build within the family strategies and skills that they can manage and address their anger or looking for substances”. Another aspect of the process is to attempt to teach the juvenile to “refuse drugs” even when they are in the presence of drugs which are available to them, as well as a “reward” system, “where points would be given for clean drug tests, and these points would accumulate and the child would trade in points for specific rewards, for incentives, during the contingency management plan.”
In addition, Mr. Lee referred Mr. T. to outpatient drug abuse treatment as part of the contingency management plan. Mr. Lee specifically selected a drug counselor who understood the MST-contingency management protocol, so that respondent, Mr. Lee and the drug counselor would “all be on the same page”. Mr. Lee indicated that CCNY did not refer Luis T. to inpatient substance abuse treatment, as that would have required the closing of his JJI/MST case with CCNY.
Mr. Lee and his supervisors at CCNY also discussed respondent's case on a regular basis with Jeff Randall, Ph.D., the MST consultant retained by CCNY for its JJI/MST program. Dr. Randall is an Assistant Professor in the Family Services Research Center of the Department of Psychiatry and Behavioral Sciences at the Medical University of South Carolina in Charleston.
An expert in the areas of Multisystemic Therapy and adolescent substance abuse, he sits on the National Advisory Board of the Vera Institute of Justice and is a member of the South Carolina Governor's Youth Council. In addition, Dr. Randall is affiliated with MST Services, Inc. which is the commercial arm of the MST program, and which is responsible for the licensing of the MST program to states and localities and ensuring that MST provider agencies comply with the protocols of the MST program.
Scott Hengler, Ph.D., is a Professor in the Family Services Research Center of the Department of Psychiatry and Behavioral Sciences at the Medical University of South Carolina, and widely credited with devising multisystemic therapy as a treatment for juvenile delinquency.
In 1996, the University of South Carolina created “MST Services” which is an “organization for the dissemination of MST” (History of MST Services, ww w.msttservices.com/index.php/mst-services/our history [last accessed December 15, 2010] ). MST Services grants or sells licenses to state and local governmental units, and provides MST program start-up assistance, clinical training for governmental and social services agency staff in MST, and program quality assurance support services ( id.). Dr. Randall is designated as an “Affiliated Professional” with MST Services.
According to Mr. Lee, he discussed the lack of engagement of Mr. T. and his family in the MST program with Dr. Randall, as well as the continued abuse of marijuana by Luis. These conversations took place in a weekly conference call in which both Mr. Lee and Dr. Randall participated.
In November 2010, after the Department of Probation determined that Mr. T. needed to be enrolled in a residential drug treatment program, Mr. Lee spoke with Dr. Randall about the respondent's continuing and escalating use of drugs. At this point, it was clear that Mr. T. “was not responding to the contingency management protocol” and that the outpatient substance abuse treatment offered as a component of contingency management had failed. Mr. Lee apparently informed Dr. Randall that the Probation Officers intended to place Mr. T. in a residential program, which was inconsistent with the MST treatment model. The decision was thereafter made to terminate Mr. T. from the MST program by CCNY.
According to Mr. Lee, the consultations with Dr. Randall always occur by telephone.
The only direct contact between CCNY's JJI/MST staff and Dr. Randall occurs when he comes to New York to train agency staff at “booster meetings”.
Although CCNY's decision to terminate respondent from the MST program occurred prior to the six month minimum period deemed appropriate to ensure successful completion of the MST program, the actual termination of Mr. T. appears not to have occurred until December 10, 2010. Mr. Lee explained that the delay in terminating Mr. T. was caused by “barriers and delays in having the inpatient treatment program begin sooner.” Mr. Lee continued to monitor Mr. T. and his mother and to provide services to them, including assisting the mother in enrolling Luis into the Camelot substance abuse treatment program.
It took three weeks from the time that CCNY reached the internal decision to terminate the respondent from its JJI/MST program for Ms. Bayona and Luis to finally have their “intake interview” at Camelot during the first week of December 2010. Further delay was caused by the necessity of providing medical clearances and documentation to Camelot, and according to Mr. Lee, respondent's mother “was unable to produce those documents in a timely manner.” According to Mr. Lee, “[t]jhe intake process for the inpatient drug treatment program took many weeks, and the record indicates that CCNY ended its involvement with the T. family without respondent having entered the Camelot residential program.
Despite the near complete failure of Luis T., his mother, and other family members, to cooperate with the MST model of services offered for months by CCNY, Mr. Lee still remained optimistic that Mr. T. could be helped through MST. Despite the repeated failures of Mr. T. to comply with the rules set down by CCNY, and despite the inability or unwillingness of his mother to fully participate in the MST therapy (no doubt occasioned, at least in part, by the fact that she had an infant at home and she was also working), Mr. Lee indicated that “I don't know that there was a time that we thought we couldn't fix these things.” Indeed, Mr. Lee stated that he would be hard pressed to think of any set of circumstances where he would conclude that MST would not work in a given case. This genuine belief, that MST has a solution for all antisocial and criminal behavior, appears to be the reason that CCNY kept informing the probation officers that they were willing to continue to work with Luis and his family, and why CCNY's JJI/MST staff did not willingly support probation's decision to place Luis into residential substance abuse treatment.
Because Multisystemic therapy is a treatment model developed from clinical research, MST Services is insistent that all licensed MST provider agencies must strictly follow the MST model, which does not include the placement of a juvenile in inpatient substance abuse treatment. No matter how severe the juvenile's drug usage is, the MST clinicians are trained to address the problem only through model-adherent approaches, such as “contingency management”. As Mr. Lee testified, “the MST team does not usually recommend inpatient drug treatment.”
Perhaps this unending optimism on the part of CCNY's JJI/MST staff led them to dissuade Ms. Bayona from contacting Officer Griffith even when Ms. Bayona had indicated that she wanted Luis off the streets for his own safety. Unjustified optimism or a reluctance to completely disclose the facts also seem to have affected the contents of the monthly “report cards” submitted to the Department of Probation by Mr. Lee whose weekly notes in the CCNY case record are far more detailed. Unfortunately, despite Mr. Lee's earnest efforts, these attempts to modify the behavior of Mr. T. through MST ultimately proved ineffective and produced the unintended result of Mr. T.'s three arrests for violent criminal behavior.
D
Officer Elizabeth Griffith of the Department of Probation JJI supervision unit, who had been assigned to supervise Luis T., was called as a witness by the Court. Officer Griffith has been a New York City Probation Officer for 24 years. For the past four years, Officer Griffith has worked in the Department's specialized JJI supervision unit which is part of the juvenile operations branch of the Department of Probation. Luis T. was assigned to Officer Griffith after being placed on probation by this Court on June 21, 2010, and she was responsible for his supervision throughout the period of time covered by this decision and until probation was revoked by the Court.
Officer Griffith filed the violation petition and amended petition alleging that Mr. T. had violated the conditions of probation imposed by the Court. The violations alleged in the two petitions included continuous drug use, curfew violations, and the commission of illegal acts, all of which occurred while Mr. T. was on probation. A large number of the violations alleged in the petitions, and those discovered during these proceedings, but not alleged in the violation petitions, occurred while Mr. T. was receiving JJI/MST services by CCNY.
In the view of Officer Griffith, not every violation of the conditions of probation imposed by a Family Court Judge should result in the filing of a violation petition. In that regard, Officer Griffith noted that probation officers are guided by the Department of Probation's written policy for violations of probation by adjudicated juvenile delinquents, a copy of which was admitted into evidence and is part of the record.
In the cases where juvenile delinquents are ordered to enroll in JJI/MST services by the Family Court, Officer Griffith indicated that she believed, or was instructed, that the MST service providers should be afforded latitude to work with probationers who are directed to comply with the JJI. This included those instances where the juvenile has committed violations of the conditions of probation imposed by a judge. Thus, while juveniles might commit violations of the conditions of probation imposed by the Court, if the MST service provider was willing to continue to work with a juvenile, that factor would be given consideration in deciding whether or not the Department of Probation would file a violation petition.
As indicated above, Officer Griffith stated that decisions as to whether to file a violation petition against a juvenile probationer are guided by departmental policies contained in a manual known as the Violation of Probation (VOP) Policy for the Juvenile Operations Division of the Department of Probation ( see, 9 NYCRR § 352.4[a] [hereinafter VOP Policy] ). In addition, it was discovered that the Department of Probation has entered into written Memorandums of Understanding (MOU) with the Administration for Children's Services which contain informal interdepartmental rules which apply to the filing of violation petitions against juvenile delinquents who are enrolled in the JJI/MST services program which is administered by the Commissioner of ACS. The MOUs and other interdepartmental documents relating to the JJI program have also been made a part of this record.
The Court observed that the Department of Probation did not file a violation of probation petition against Mr. T. until March 14, 2011, which was subsequent to his third felony arrest which involved the tragic death of a young man in Queens County. Officer Griffith indicated that she was aware of the conditions of probation which the Court had imposed when it placed Luis T. on probation, and although the Department of Probation was receiving monthly “report cards” on or about the 21st of each month from CCNY which contained reports of numerous violations of the conditions of probation, nothing was done to bring Mr. T. back before this Court until he had been arrested on four separate occasions.
According to Officer Griffith, “we were working on trying to get him in a drug program, because we felt that was the main issue that he was having because he was testing positive for marijuana.” The Court stated that “I don't disagree with that conclusion, but he had already been on probation for six months by the time that decision was reached ... and during that period of time he had been working with the JJI program but nevertheless, from the reports they've presented and the information you had gathered, he had been in constant violation of his probation for that six month period.”
The Court inquired why a violation petition had not been filed after respondent's first arrest for fare beating, or after his second arrest in Bronx County for Robbery in the First Degree and Assault in the First Degree on January 9, 2011, as the Court specifically included a “no further arrests” condition in the conditions of probation. In that regard, the Court observed that he applicable part of the VOP Policy provides that “[i]n cases when No New Arrest' is a specific condition of probation, it will require the PO [probation officer] to file a VOP right away” (VOP Policy at 7). Officer Griffith candidly conceded that the Department's VOP Policy was not followed in the case of Luis T., and she indicated that the VOP Policy was disregarded because Luis T. was enrolled in the JJI program. As she explained, “he was working with them [JJI] as well and I was trying to make sure he was getting the services that the Court wanted him to get.”
While Officer Griffith had intended to file a violation petition against Mr. T. sometime in December of 2010, that petition was never filed because she was unsuccessful in obtaining records from his school and because she had taken a week of vacation in late December. Even if this is true, it is clear from these proceedings that pursuant to the Department of Probation VOP Policy and the MOUs entered into by officials of the Department of Probation and the Administration for Children's Services, the decision as to whether to file a violation petition against a juvenile delinquent enrolled in JJI/MST is not made by the probation officer assigned to the juvenile. Rather, that decision involves consultation between supervisors and agency managers in both city agencies. Thus, while Officer Griffith had brought the information concerning the repeated violations of probation by Mr. T. to the attention of her supervisor prior to January of 2011, she was not given “permission” to file a violation petition until January of 2011.
E
Diana Comvalius, a Supervising Probation Officer of the New York City Department of Probation testified on July 11, 2011. Supervising Probation Officer (“SPO”) Comvalius has been a Probation Officer since 1993, and she was promoted to SPO in 1999. At the time she testified, SPO Comvalius was responsible for supervising Probation Officers in the specialized JJI unit that monitors juvenile delinquents who are directed by the Family Court to enroll in JJI/MST services as a condition of their probation.
SPO Comvalius was the supervisor of Probation Officer Griffith during the period encompassing June 21, 2010 and the dates upon which the violation petition and amended violation petitions were filed with the Family Court. While a SPO does not have direct responsibility for supervising juvenile delinquents placed under probation supervision, the SPO meets with probation officers in order to discuss problems or concerns about juveniles assigned to the oficer. In the case of Mr. T., SPO Comvalius did not meet Luis until the date of the administrative hearing held by the Department of Probation in October 2010, although SPO Comvalius was “familiar with his case because I made a school visit to his school with the probation officer because we were concerned about [whether] he was getting the proper school services.” In addition, as part of her duties, SPO Comvalius has “biweekly” telephone conversations about Mr. T. and other JJI cases with Jennifer Vinces, the JJI program supervisor at CCNY.
SPO Comvalius explained that she and Ms. Vinces would regularly discuss problem cases in which CCNY was providing JJI/MST services to a juvenile delinquent, and that Luis T. was indeed one of these problem cases. She stated that the case of Luis T. “was highlighted for a couple of issues and that's how I became familiar with the T. case.”
The administrative hearing concerning Luis T. was conducted at the Department of Probation by Probation Officer Griffith and SPO Comvalius on October 7, 2010, and the Court asked SPO Comvalius to describe the mechanics of the administrative hearing process. SPO Comvalius explained that in cases where the juvenile delinquent is enrolled in JJI/MST services, the probation officer, the SPO, the juvenile, his family, the JJI therapist and “sometimes the JJI supervisor” are present. At the administrative hearing, “we discuss the concerns, the infractions of the conditions of probation, and we ... talk to the youngster ... to find out how we can correct these infractions.” At the conclusion of the hearing, the probation officer gives the juvenile “a contract” which is a written document that “stipulates” what steps or actions will be undertaken by the juvenile and his family to address the violations of the conditions of probation which led to the administrative hearing being convened. “All parties involved sign the contract. They have about 30 days or so to get their act together and, if not, there's a great possibility that a VOP will be filed.”
According to SPO Comvalius, the major concerns addressed by the participants at Luis T.'s administrative hearing were his lack of school attendance, his continuous testing positive for drugs, and curfew infractions. These violations were reported in the progress reports submitted to the Department of Probation by CCNY in July, August, and September 2010, and presumably they were discussed by SPO Comvalius and Jennifer Vinces of CCNY during their regular telephone conversations about the JJI/MST cases assigned to CCNY.
Ms. Comvalius indicated that an SPO is not in a position to formulate policy for the Department, and she and the probation officers under her supervision follow the dictates of the VOP Policy set forth in the manual produced by the Department of Probation. As a general proposition, SPO Comvalius agreed with the Court's statement that the Department views violation of probation petitions “as a last resort after whatever services or interventions have been tried and failed.” She disagreed with the statement that the Department of Probation condones or permits a juvenile delinquent to commit violations of the conditions of probation supervision while the probation officer attempts to address the problems in a case.
However, SPO Comvalius did note that Mr. T. had violated the conditions of probation set by the Court, but that “in the interim, we were trying to get services for him [during] that period when he was placed on probation ... before the termination.” She explained that “we realized that there were issues with school and treatment and he needed substance abuse treatment, and that's why we were trying to get him substance abuse treatment and his [school] I.D. and situation straightened out ... we tried to provide him with services, but I agree, we should have notified the Court that these things were going on. However, Probation was requesting or liked to continue to work with the family to provide him the assistance he need[ed] to correct those issues” (italics added).
SPO Comvalius indicated that in retrospect it might be that a violation of Probation petition should have been sooner filed against Mr. T., possibly even “before he was terminated from JJI”, and the Court inquired whether Mr. T. was considered “seriously non-compliant” with the conditions of his probation. Ms. Comvalius stated “the point I realized things were very serious was, I think, January [2011] when he sustained the first [felony] arrest, and I impressed upon the Probation Officer to do the VOP”. In addition, once Mr. T. was expelled from the JJI program by CCNY in December, that was automatically grounds to file a violation of probation petition, and SPO Comvalius wanted to have Mr. T. enter a residential drug treatment program at that time.
The Court noted that one of the specific conditions of probation imposed upon Mr. T. on June 21, 2010 was that he “is not to commit any further violations of law, no new arrests” and that the Probation VOP Policy provides that where the Court includes a “no new arrest” condition in an order of probation, the Probation Officer is to file a violation of probation petition should the juvenile be re-arrested while on probation. The Court inquired of SPO Comvalius whether she was aware that the Court had made a “no new arrest” condition part of the order of probation for Luis T. and that the fare beating arrest should have triggered the filing of a violation petition pursuant to the VOP Policy. In addition, the Court's conditions of probation included that Mr. T. was “to abstain from and test negatively for marijuana, alcohol and controlled substances” and that his continual use of marijuana should have also caused the Department to file a violation petition. While SPO Comvalius was aware of the conditions of probation, she could not explain why no violation petition was filed until after Mr. T. was terminated from the JJI program by CCNY.
Insofar as the violation petition was filed after Mr. T. had been terminated from the JJI program, the Court noted that CCNY's termination letter to Officer Griffith was dated December 13, 2010, but that the initial violation petition was not filed with the Family Court until March 14, 2011. During the three month period of time from December 13, 2010 until March 14, 2011 respondent was allegedly no longer enrolled in the JJI/MST program at CCNY, and JJI administrators at ACS claim to have had no responsibility for Mr. T. during that time as JJI/MST had been terminated December 13, 2010, a date which coincidentally preceded Mr. T.'s first felony arrest for Assault in the Second Degree and other crimes in Bronx County on January 9, 2011.
Given that SPO Comvalius had earlier testified that a juvenile's removal or termination from a JJI/MST program by the service provider agency constitutes grounds to file a violation petition, the Court inquired as to why the Department of Probation did not file the initial violation petition until March 14, 2011. According to SPO Comvalius, a “work sheet” needed to be completed in order to have a violation petition filed, and Probation Officer Griffith “started it at some point and it was never completed.” However, given the more than 40 years of combined service of Officer Griffith and SPO Comvalius, the Court asked SPO Comvalius why the internal “work sheet” had not been completed as of the time Mr. T. was terminated from JJI by CCNY. SPO Comvalius replied that “[t]hat's where—where I was neglect (sic) in not following up with her, as far as, you know, in completing it. I realized in January [2011] it wasn't completed, and that's when I told her to complete it.”
Of course, Mr. T. began his series of felony crimes in early January 2011, and the Court does not necessarily conclude that Probation Officer Griffith or SPO Comvalius simply “forgot” to complete the internal paperwork necessary to have a violation petition filed between respondent's official termination from the JJI program on December 13, 2010 and before his first felony arrest in the Bronx on January 9, 2011. To the contrary, the Department of Probation appears to have selected competent and very experienced officers and supervisors to work in the JJI supervision unit, and one is hard pressed to find that very experienced probation officers neglected such a basic task which they have undoubtedly performed hundreds of times during their careers.
SPO Comvalius explained that although a violation petition could have been filed based upon the fact that Luis continually tested positively for marijuana, he failed to attend school, failed to obey curfew, he was arrested in the summer of 2010 for fare beating, and he missed more than one appointment with Probation Officer Griffith, this did not occur. According to SPO Comvalius, the violation petition was not filed prior to respondent's termination by CCNY “because he was still working with JJI. We wanted that treatment for him. We wanted the school situation resolved and we were hoping to get that done”. In other instances, “we violate”, but that was not done here because the Probation Department was relying, or possibly the Department was required to rely upon, the representations of CCNY that Mr. Lee and CCNY staff were attending to these concerns. It should also be noted that Officer Griffith had supervisory responsibility for 25 juvenile probationers who were enrolled in the JJI program, and that SPO Comvalius supervised 5 Probation Officers in the JJI unit with similar caseloads, which by necessity limited the amount of attention that the Department of Probation could give to any one case at a given moment.
SPO Comvalius had been informed by Jennifer Vinces that Luis T. and his mother had been failing to make themselves available for home-based therapy sessions with Eddie Lee. According to SPO Comvalius, she was informed by Ms. Vinces that CCNY was experiencing “engagement issues”, meaning difficulties in getting Mr. T. and his mother to actively participate in the MST services being offered by CCNY. The Department of Probation did not take action to address these engagement issues, leaving that to CCNY. As SPO Comvalius explained, “that's part of what JJI does. They work with the family, the parents, to teach them how to implement consequences or how to respond to certain behavior.” Thus, because Mr. T. was actively enrolled in MST services with CCNY, the Department took no action to address respondent's persistent failure to comply with the conditions of probation, and the failure of Mr. T. and his mother to fully engage in MST with CCNY personnel. These issues were left to the MST services provider to address as part of the therapy, and the violations of probation committed by Mr. T. were not brought to the attention of the Court.
SPO Comvalius indicated that the Department of Probation did not necessarily agree with the course of treatment proposed by CCNY, but apparently the Probation Department lacked any ability to compel the JJI staff at CCNY to modify its treatment plan. For example, in October or November of 2010, the Probation Officers realized that Mr. T. needed “a higher level of care” to address his drug problem. According to SPO Comvalius, probation wanted Mr. T. to enter residential drug treatment, but CCNY's MST personnel were not in agreement with that course of action. SPO Comvalius stated that the CCNY MST team “were doing contingency management' “ but the Department of Probation “knew he needed more. We believed he needed residential [treatment] and that he would no longer be on JJI”, but that plan was not accepted by CCNY, which insisted on integrating outpatient substance abuse treatment as part of its “contingency management” plan under MST until it became clear that the probation department's insistence that Mr. T. enter a residential drug treatment program would control and that Mr. T. would no longer be available to participate in the MST program.
In fact, the Department of Probation did not begin to push for respondent's enrollment in the Camelot residential drug program until November of 2010, and until December 22, 2010 the MST therapist, Mr. Lee attempted to assist and guide Ms. Bayona with the steps necessary to have respondent admitted to the program. After CCNY personnel ceased their involvement with the family on December 22, 2010, it was left to Officer Griffith to keep pressuring Ms. Bayona to do all that was required so that respondent could be admitted to the program. The process of obtaining all of the required paperwork and medical clearances took so long that Mr. T. had been arrested in Bronx County on January 9, 2011 without ever having enrolled in the Camelot program. Apparently, CCNY's termination of its involvement with the T. family did not result in greater involvement by the probation department in the admissions process.
In retrospect, SPO Comvalius believed that a violation petition should have been filed against Luis T. long before it was actually filed. She explained the delay as resulting from the fact that Luis was enrolled in the JJI/MST program at CCNY. She explained, “it was all done in the spirit of trying to work with the family and also to give JJI and our staff an opportunity to provide services and for us to work together [with CCNY] to provide services for this family. But, you know, like I said, moving forward, we just need to stick to our departmental policies and procedures ... we need to file a violation when they get arrested or ... when the violate their conditions. We can still request that the person be paroled to continue to work with JJI or probation ...”.
F
Jeanine Gray, an Associate Commissioner of the New York City Department of Probation, appeared to respond to questions from the Court. Commissioner Gray had the opportunity to listen to the testimony given by the previous witnesses and the Court inquired whether she believed that there was anything that the Department of Probation might have done differently which would have prevented the tragic outcome in this case.
Commissioner Gray conceded very candidly that upon review of th entire case, “there was some opportunities that we missed”, beginning with the failure to notify the Court of respondent's fare beating arrest in August 2010. In addition, the Department of Probation could have taken a more active role in securing proper services and a proper educational setting for Luis, notwithstanding the intention of the CCNY MST staff to focus on respondent's education as one aspect of MST services. This is sensible, as the MST service provider was more focused on ensuring that the respondent attended school, and not focused on whether the respondent required special education or a different non-mainstream school setting. Likewise, while the educational specialist at CCNY apparently left the agency during the period when respondent was enrolled ion JJI/MST services with CCNY, there is no indication that CCNY personnel advised the probation department that its assistance was required to address concerns about respondent's educational setting or program.
The failure to notify the Court of any of respondent's arrests while he was on probation was a failure to comply with the Department's VOP policy for cases where a judge has specifically included “no new arrests” as a condition of probation. Respondent's continued use of marijuana throughout the period of probation also violated a specific condition of his probation. While Commissioner Gray indicated that the assigned Probation Officer took steps to address this issue, she was aware that the issue of positive drug tests by respondent were also not brought to the Court's attention prior to the filing of the initial violation of probation petition.
The Court observed that the Department's VOP Policy refers to the filing of violation petitions as “a last resort”, but Commissioner Gray maintained that while the violation petition against Luis T. “should have been filed sooner”, as a general proposition there is never a reluctance on the part of probation officers to file a violation petition where a juvenile probationer commits a felony or otherwise poses a threat to the safety of the community. Commissioner Gray did note, however, that in the absence of a specific condition imposed by a judge, the decision as to whether to file a violation petition is based upon the facts of an individual case.
In cases where a juvenile violates the rules of probation, but there is no violation of a judicially imposed condition of probation, the probation officer retains discretion under the VOP policy as to whether or not a VOP petition should be filed. As a general rule, unless a violation petition is filed, the Department utilizes a system of graduated sanctions which correspond to the nature of the violation and other factors, such as the age of the juvenile, and the risk that non-compliance poses to the safety of the community. If informal adjustment attempts through graduated sanctions prove unsuccessful, then the Department will proceed to an internal administrative hearing to address and find a solution for the juvenile's non-compliant behavior.
Commissioner Gray indicated that respondent's continued participation in the CCNY JJI/MST program after the October 7, 2010 administrative hearing “was not” a determinative factor in not filing a violation of probation petition. However, the respondent's particular problems of marijuana abuse, lack of school attendance, curfew violations, failure to perform community service, his fare beating arrest, and the failure to respond to the contingency management implemented by Mr. Lee and CCNY, were exactly the types of problems which the JJI/MST program was intended to address and treat. Mr. T. remained enrolled in the JJI/MST program at CCNY in October 2010, and Mr. Lee advised both Officer Griffith and SPO Comvalius that CCNY was willing to keep working with Luis and his mother within their MST program.
G
Denise McNeil–Grant, the Branch Chief for Juvenile Probation at Queens County Family Court, also responded to a few questions at the hearing. Chief McNeil–Grant indicated that probation officers and SPOs are authorized to file violation of probation petitions without her approval, and the rule is no different for cases involving juveniles enrolled in the JJI/MST program. While Chief McNeil–Grant indicated that a juvenile's participation in the JJI/MST program would not necessarily “postpone” the filing of a violation petition, the probation officer and the SPO might withhold the filing of a violation petition until a consultation with the MST service provider agency. If the probation officer and the MST staff at the agency determine that there are other options available through the JJI/MST program to address a juvenile's noncompliant behavior, a violation petition might be withheld to allow the MST service providers to attempt to intervene in a non-coercive manner.
As explained by Chief McNeil–Grant, the Department of Probation and the MST provider agency attempt to work together to supervise and provide services to a juvenile delinquent. She stated that “we do work together and the ultimate goal with both agencies is [to] try to provide the best service for the child, even if the child is not doing what they are supposed to do.” Where a juvenile is non-compliant with the conditions of probation, the rules of the Department of Probation, and the rules of the JJI/MST program, Chief McNeil–Grant explained that “[o]ften times we will try to find out exactly what's going on because there could be several issues that [are] preventing that particular child from complying with the conditions of probation or even complying with JJI.”
On occasion, the Probation Officer, SPO, the Branch Chief, the MST therapist, and “JJI directors” will meet to discuss a juvenile's particular problems in an attempt to find a viable solution. Chief McNeil–Grant explained, “we are trying to give the child an opportunity. We understand that there are certain conditions of probation that we should be adhering to, but we try to work with the child, as well as working with JJI”, even if this results in not filing a violation petition which would otherwise be required to be filed under the rules contained in the VOP Manual.
With respect to Luis T., Chief McNeil–Grant was of the opinion that Officer Griffith and SPO Comvalius identified his most pressing problems as the continued misuse of marijuana and his failure to attend school. She indicated that “they were trying to get this child into drug treatment rather than violate him”, and she also indicated that the Department should have notified the Court about the developments which occurred during the period Luis was under probation supervision. She did not however state that the matter would have been brought to the attention of the Court by way of a violation petition.
This raises the question of whether the Department of Probation would have withheld the filing of a violation petition which was otherwise required under the Department's VOP policy, were the juvenile on standard ( i.e., non-JJI/MST) probation with a record on significant noncompliant behaviors similar to Mr. T.'s record. Luis T. was on probation and the Department of Probation was responsible for his supervision from the date of the order of disposition until the date that he was brought before this Court following his three felony arrests. Given the failure of the Department of Probation to closely monitor and supervise Mr. T. because of the presence of the JJI/MST service providers in the case, the overall and persistent failure of Mr. T. and his mother to successfully participate in the JJI/MST program, and the failure to bring the case back before the Family Court until it was too late for the Family Court to take meaningful action, it is necessary to examine how this case evolved so that future tragedies can be avoided in the future.
VI
A juvenile delinquent is a minor between the ages of 7 and 16 who commits one or more acts which, if committed by an adult, would constitute a misdemeanor or a felony (Fam. Ct. Act § 301.2(1). Juvenile delinquency proceedings are commenced under article 3 of the Family Court Act. The purpose of the juvenile delinquency statute is set forth in Family Court Act § 301.1 which provides:
The purpose of this article is to establish procedures in accordance with due process of law (a) to determine whether a person is a juvenile delinquent and (b) to issue an appropriate order of disposition for any person who is adjudged a juvenile delinquent. In any proceeding under this article, the court shall consider the needs and best interests of the respondent as well as the need for protection of the community.
Prior to the enactment of the Family Court Act in 1962, juvenile delinquency proceedings were brought primarily in the Children's Court. Where proceedings were commenced in that forum, “[t]he concept of crime and punishment disappears. To the child delinquent through the commission of an act criminal in nature, the State extends the same aid, care and training which it had long given to the child who was merely incorrigible, neglected, abandoned, destitute or physically handicapped. All suggestion and taint of criminality was intended to be and has been done away with” (People v. Lewis, 260 N.Y. 171, 176 [1932],cert denied289 U.S. 709 [1933] ).
Because the Children's Court was designed to “serve [a] social purpose” ( id. at 178), there was no need for the procedural due process required in criminal prosecutions. As observed by the Supreme Court in the landmark case of In re Gault (387 U.S. 1 [1967] ), the creation of specialized juvenile courts to deal with juvenile delinquency led to the elimination of procedural due process protections as “[t]he idea of crime and punishment was to be abandoned. The child was to be treated' and rehabilitated' and the procedures, from apprehension, through institutionalization, were to be clinical' rather than punitive” ( id. at 15–16) in nature.
This parens patriae approach to juvenile delinquency “prevailed, with a few exceptions, for more than half a century” (In re Urbasek, 38 Ill2d 535, 539, 232 N.E.2d 716, 718 [Sup Ct, 1968] ), until the Supreme Court decided Kent v. United States (383 U.S. 541) in 1966 followed by the decision in Gault which “inaugurated sweeping constitutional reform of the rights of juveniles in this country” (In re Dennis M., 70 Cal2d 444, 450, 450 P.2d 296, 299 [Sup Ct, 1969] [Mosk, J.] ). What emerged is the present system for the adjudication of juvenile delinquency where most, but not all, of the procedural protections applicable to criminal trials “have equal application to that part of the state juvenile proceeding that is adjudicative in nature” (McKeiver v. Pennsylvania, 403 U.S. 528, 533 [1971] [plurality holds that there is no right to a jury trial at adjudicatory state of delinquency proceeding] ).
The debate on the issue of whether accused juvenile delinquents should be afforded the right to a jury trial continues ( e.g., In re L.M., 286 Kan 460, 469–470 [Sup Ct 2008]; In re Jonathon C.B., –––Ill2d ––––, 2011 IL 107750, 958 N.E.2d 227, 354 IllDec 484 [Sup Ct 2011] ).
Some commentators have even argued that a jury trial is required because judges convict juveniles upon proof that is less than beyond a reasonable doubt ( see, Weaver, Intentional Wrongful Conviction of Children, 85 Chi–Kent L Rev 163, 164 [2010]; Solomon, I Got the Post–McKeiver Blues, 60 Rutgers L Rev 105, 107 [2007] ).
A
In this case as in all juvenile delinquency proceedings, the Court proceeded to determine the order of disposition which should be entered. “Family Court Act § 352.2 authorizes five dispositions of a youth who has been adjudicated a juvenile delinquent: conditional discharge, probation, placement with OCFS, placement in a mental hygiene facility, and, in the case of a juvenile delinquent who has committed a designated felony, restrictive placement pursuant to Family Court Act § 353.5” (Matter of Robert J., 2 NY3d 339, 243).
The statute also authorizes the court to place an adjudicated juvenile delinquent in the custody of the Commissioner of Social Services (Fam. Ct. Act § 353.3[1] ).
In entering an appropriate order of disposition, the Family Court is guided by the statute, which provides that:
In determining an appropriate order the court shall consider the needs and best interests of the respondent as well as the need for protection of the community. If the respondent has committed a designated felony act the court shall determine the appropriate disposition in accord with section 353.5. In all other cases the court shall order the least restrictive available alternative enumerated in subdivision one which is consistent with the needs and best interests of the respondent and the need for protection of the community (Fam. Ct. Act § 352.2[2][a] ).
The juvenile delinquency statute expresses no preference for any particular outcome, and the Family Court is vested with “broad discretion” in entering the appropriate order of disposition ( see,Fam. Ct. Act § 141; Matter of Tristan W., 258 A.D.2d 585, 586;Matter of Stephone M.H., 11 AD3d 464, 465;Matter of Isaiah Mc., 47 AD3d 717, 718;Matter of Javed K., 57 AD3d 899;Matter of Ashanti B., 62 AD3d 790, 791;Matter of Cooper C., 81 AD3d 643;Matter of Shaundale W., 82 AD3d 1254, 1255).
With the exception of those cases where the juvenile has been found to have committed a designated felony act (Fam. Ct. Act § 301.2[8] ), in which instance the Family Court may impose a restrictive placement with a minimum time period for the placement ( e.g., Matter of Jordan E., 305 A.D.2d 778, 779;Matter of Lamar J.F., 8 AD3d 1091, 1092;Matter of Dwayne J.R., Jr., 60 AD3d 1467;Matter of Joseph G., III., 78 AD3d 1700), the court is required to utilize the least restrictive dispositional alternative which is consistent with the respondent's needs and the need for protection of the community (Fam. Ct. Act §§ 301.1; 352.2[2][a]; Matter of Katherine W., 62 N.Y.2d 947, 948;Matter of Amanda RR., 230 A.D.2d 451, 454;Matter of Shea McF., 33 AD3d 801, 802;Matter of Terrance B., 40 AD3d 1083, 1085;Matter of Leonard J., 67 AD3d 911, 912;Matter of Genny J., 78 AD3d 1181, 1182;Matter of Jonathan M., 79 AD3d 885, 886;Matter of Akeem B., 81 AD3d 512;Matter of Aaliyah H., 89 AD3d 557).
In conducting its analysis, the court must consider and balance both the needs and best interests of the respondent as well as the need for the protection of the community (Matter of Todd B., 190 A.D.2d 1035, 1036;Matter of Timothy C., 31 AD3d 1222, 1223–1224;Matter of Pedro A., 34 AD3d 461, 461–462). While not specifically mentioned in the statute, the Court may also consider the seriousness of respondent's offenses, the impact upon the victims, the need to protect the community, as well as the need to deter the respondent from further criminal behavior (Matter of Christopher QQ., 40 AD3d 1183, 1184;Joseph G., III at 1700–1701).
While the statute requires that the “least restrictive alternative” analysis be utilized, that does not require that less restrictive alternatives actually be tried and fail before more restrictive alternatives can be imposed (Matter of Stacy S., 17 AD3d 1146, 1147;Matter of Leah G., 23 AD3d 658;Matter of Phillip D., 27 AD3d 1126, 1127;Matter of Austin Q., 63 AD3d 1224, 1225). Rather, the Court must balance the needs and best interests of the juvenile and the need to protect the community when determining what order of disposition is most appropriate.
Although the Court is granted discretion to impose an order of disposition, that discretion is not limitless. Orders of disposition are appealable as of right (Fam. Ct. Act §§ 365.1[1]; 1112[a] ), and where it is determined that the order of disposition is inappropriate, an appellate court will not hesitate to vacate or modify the Family Court order ( see, Matter of Joel J., 33 AD3d 344, 345–346;Matter of Israel M., 57 AD3d 274, 276;Matter of David F., 69 AD3d 720;Matter of Genny J., 78 AD3d 1181, 1182;Matter of Julian O., 80 AD3d 525;Matter of Tyvan B., 84 AD3d 462;Matter of Jonnevin B., 89 AD3d 464;Matter of Hakeem F., 90 AD3d 403).
B
It was under this statutory framework that the Court proceeded to a dispositional hearing in this case in order to determine what order of disposition met the needs and best interests of Luis T., as well as the need to protect the community.
The dispositional hearing was a complicated affair. Probation Officer Tunnell, who conducted the investigation and prepared the report for the Court, found that Mr. T. “is a high risk for community-based services” and he recommended that Mr. T. be placed away from home based upon his needs, the functioning of his family, and the risk that he posed to the safety of the community. Aliza Yanovsky, Ph.D., the psychologist who conducted the diagnostic assessment of Mr. T., reported that he had “significant developmental delays and impaired cognitive functioning.” She found that respondent suffered from anger issues, which he “medicated ... by the use of marijuana”, that he was not actively involved at school and regularly truant, and that respondent's “judgment impressed as seriously impaired.” According to Dr. Yanovsky, “[t]he respondent's poor judgment, limited insight, and impulsivity are risky to himself and the community”, and she therefore recommended that Mr. T. be placed in an institutional setting with close supervision.
In recommending that Mr. T. be placed, both Probation Officer Tunnell and Dr. Yanovsky expressed serious concerns about the ability of respondent's mother to supervise him in the community. Officer Tunnell reported that Ms. Bayona was essentially unable to control her son, keep him off the streets, out of trouble, and in school. While Ms. Bayona had some sense of Luis' actions and behavior, she had not been able to control him in the past, and there was little likelihood that she could do so in the future. Similarly, Dr. Yanovsky reported that Ms. Bayona was immersed in providing for her “new family” and Luis was essentially permitted to do as he wished. Dr. Yanovsky observed that Ms. Bayona was “overwhelmed and busy with her new family” and that Ms. Bayona “was not aware of the severity of respondent's problems and minimized his marijuana use.” She also appeared to “have marginal idea[s]” of her son's learning and cognitive problems.
C
Based upon the congruent reports of the Department of Probation and the Mental Health Services Clinic, there was a strong likelihood that the Court would decide that respondent's best interests and the need to protect the community required that he be placed with the Office of Children and Family Services. Given that it was highly unlikely that a private social services agency would accept him for placement in its facility, respondent's attorney, undoubtedly fully aware that the Court is required to at least consider lesser restrictive alternatives to placement, proposed that he be evaluated for acceptance by the ACS Juvenile Justice Initiative program.
The use of community-based programs as “alternatives to placement” is a fairly recent development in juvenile delinquency practice in New York. The utilization of community-based social service programs as an alternative to placement for often violent, dysfunctional, or antisocial teenagers who have committed criminal acts, is now considered by policy makers to constitute a safe and effective alternative to institutional placement.
In the distant past, juvenile delinquents were treated as criminals and they were punished as such. Over time, society considered juvenile delinquency to be a social illness or disease to be addressed through treatment, therapy, and guidance, and the criminal justice model was largely abandoned. When the social science approach to juvenile crime proved to be functionally ineffective and unconstitutional in many respects, the Legislature adopted the present quasicriminal model which ensures that accused juvenile delinquents are provided with procedural due process. Finally, when the due process based model became perceived as ineffective in responding to a perceived increase in violent behavior by teenagers, the Legislature removed the defense of infancy for specific violent crimes committed by designated teenagers (Penal Law § 30.00[2] ). Cases against these defendants, known as “juvenile offenders” (Criminal Procedure Law § 1.20[42]; Penal Law § 10.00[18] ), are to be initiated in a criminal court, although there is a statutory framework in place which permits the removal of cases found unsuitable for criminal prosecution to the Family Court ( see, Matter of Vega v. Bell, 47 N.Y.2d 543, 547;Matter of Raymond G., 93 N.Y.2d 531, 534–536;Criminal Procedure Law § 725.00).
The movement away from the use of institutional placements in favor of communitybased programs for placement-bound adjudicated juvenile delinquents, which has yet to garner legislative approval, is supported by local government officials who are concerned about the cost of institutional placement for juvenile delinquents;
responsible governmental officials including the United States Department of Justice and the New York State Commissioner of the Office of Children and Family Services, who have raised valid concerns about the ability of the state Office of Children and Family Services to provide proper care for residents in its custody. The community-based alternative movement also includes those who are opposed, for a variety of reasons, to placing a juvenile outside of his or he community under almost all circumstances, and entities which have a financial interest in a greater utilization of community-based alternative to placement programs.
In New York, half of the cost of providing institutional care for an adjudicated juvenile delinquent with OCFS or at a private social services agency, including post-release aftercare services, is charged to the local social service districts (Executive Law § 229).
D
The current reform movement in New York can be traced to approximately 2003 when Martin F. Horn, then the Commissioner of the New York City Department of Probation, announced “Project Zero” which was “a juvenile justice reform initiative of the NYC Department of Probation” intended to reduce the use of “costly detention and incarceration” of accused and adjudicated juvenile delinquents.
However, as Mr. Horn then observed, the Department of Probation was limited to making recommendations to Family Court Judges who are charged with making the ultimate determination as to whether a given juvenile is detained pending court proceedings and whether a juvenile is ultimately ordered to be placed with OCFS. Former Commissioner Horn's announcement of “Project Zero” was coupled with the now-familiar claims that Family Court Judges were overutilizing detention and placement, both of which have “extremely high costs and very poor outcomes”, meaning that the rate of recidivism (future juvenile delinquent or criminal behavior) amongst youth placed with OCFS is unacceptably high.
A summary of the Department of Probation's “Project Zero” is available on the web at http:// home2.nyc.gov/html/prob/downloads/pdf/project—zero—reform—initiative.pdf (last accessed January 3, 2012). It can also be accessed through the New York City Department of Probation web page (http:// home2.nyc.gov/h tml/prob/html/programs/juvenile—services.shtml [last accessed January 3, 2012] ). Hereinafter sometimes referred to as “ Horn Statement ”. Mr. Horn is currently the Executive Director of The New York State Sentencing Commission which recently issued a report with recommendations for raising the age of criminal responsibility for certain 16– and 17–year–old who commit non-violent offenses.
In order to enact reform, in the absence of authorizing state legislation, the Department of Probation set out to achieve specific goals, which included “[d]emonstrat[ing] to Juvenile Justice System stakeholders ... that the incarceration approach' was failing public safety”, and “creat[ing] a culture that values community-based, in-home solutions to delinquency, and; [c]reat[ing] a set of alternatives-to-incarceration for judges to use in adjudication” ( id.). As of the time of Mr. Horn's statement, the Department of Probation had enacted three major reforms which were directed at the dispositional phase of juvenile delinquency proceedings: (i) the creation of a “Probation Assessment Tool” which was asserted to be “a rational decision-making tool for sentencing”
; (ii) the creation of Esperanza, “a community-based” alternative to placement program “for high-risk probationers who would otherwise be incarcerated” ( Horn Statement at 2)
This Court previously issued an opinion concerning the creation and structure of the Probation Assessment Tool, and the use of that so-called diagnostic device by the Department of Probation which this Court found was inherently biased in favor of female delinquents ( Matter of Geraldine A., 29 Misc.3d 1226[A], 2010 N.Y. Slip Op 52033[U] [November 23, 2010] ).
; and (iii) the creation of the “Enhanced Supervision Probation” program which is intensive probation supervision and monitoring for “youth who are medium or high risk” as determined by the Probation Assessment Tool. According to Mr. Horn, “ESP Probation Officers have low caseloads” and are authorized to expend funds “to provide incentives and service support” such as tutoring or to purchase a computer for a juvenile “without computer and Internet access” ( id.).
The Esperanza program was initially operated by the Vera Institute of Justice pursuant to a contract with the New York City Department of Probation. In 2007, the New York City Comptroller issued an audit report concerning Vera's performance in operating the Esperanza program under the contract ( Audit Report on the Vera Institute of Justice Contract with the Department of Probation to Operate the Esperanza Program, Report Number ME07–133A, Office of the New York City Comptroller, June 26, 2008[public document, bound copy in court file] [hereinafter Comptroller's Report] ). The Comptroller's report notes, in part, that the Department of Probation made payments to Vera based upon the number of juveniles enrolled in Esperanza in each quarter year as well as payments for each quarter in which a target percentage of juveniles enrolled in the program avoided placement with OCFS. The Comptroller's office noted that “Esperanza estimated that it saved the City $5.4 million during Fiscal Year 2007 by reducing the number of juvenile delinquents placed in a State facility. However, its cost-savings reports and its savings-calculation methodology statement raise significant questions concerning the reliability of this savings-estimate” (Comptroller's Report at 14). The Report further noted that Esperanza considered a juvenile case successfully completed “if a client whose case was closed during the fiscal year avoided placement in a State facility between the enrollment date and the end of the fiscal year” ( id.). However, Esperanza “does not check adult court records ... to determine whether [their] clients avoided incarceration during this period for an offense committed as an adult” ( id.). The Esperanza program has been “spun-off” by the Vera Institute of Justice, and it now operates as a self-contained “not-for-profit” corporation which continues to provide services as a alternative to placement” program in several counties.
After the implementation of the Esperanza program which became an entity separate from its creators at the Vera Institute for Justice in 2006, New York City created its own alternative-to-placement program for adjudicated juvenile delinquents, the Juvenile Justice Initiative, which is a part of the Administration for Children's Services. The ACS Commissioner, who as Commissioner of Social Services previously had limited involvement in juvenile justice, was given the power to “plan, develop, conduct and supervise programs ... for the prevention of juvenile delinquency and juvenile crime and for youths arrested, charged, adjudicated or convicted of having committed delinquent or criminal acts, and conduct research and demonstration projects related thereto” (N.Y.C. Charter § 618[f] ). In 2010 ACS assumed the functions of the Department of Juvenile Justice which maintains pre-trial secure and non-secure detention facilities for alleged juvenile delinquents. Thus, over a relatively brief period, the City agency best known for managing New York City's massive child protective system and its overwhelming caseload, was vested with juvenile justice responsibilities which were previously within the domain of the Department of Juvenile Justice and the Department of Probation.
E
In furtherance of the goal of reducing institutional placements of adjudicated juvenile delinquents the City created the Juvenile Justice Initiative, or JJI, as a primary alternative to placement program. At the time JJI was created, the use of alternative to placement programs for adjudicated and “placement bound” juvenile delinquents was still a relatively new phenomenon, limited to a few programs in New York City, such as the Esperanza program. Because the JJI program was situated within ACS, a City agency with fairly limited experience in managing delinquent youth, especially those who have been recommended for institutional placement with OCFS, rather than the Department of Probation which traditionally supervises adjudicated juvenile delinquents who remain in the community, there were bound to be jurisdictional lapses and oversights, such as those in this case.
According to JJI, it “is a $10 million ACS initiative designed to provide intensive familybased services for youth involved in the juvenile justice system either in lieu of placement as a dispositional alternative (as a condition of probation), or as the provision of aftercare for youth returning home from voluntary (sic) placement in the custody of OCFS” ( Juvenile Justice Initiative (JJI). Alternative to Placement Goals and Guidelines Manual: Program Goals, Referral Process, Case Protocols and Procedures, and Stakeholder Roles and Responsibilities, Version 2, rev. June 6, 2011 [hereinafter JJI Manual] ).
The JJI staff at ACS is not large as ACS does not provide services directly to the juvenile delinquents who are enrolled in the JJI program. JJI is under the auspices of the ACS Executive Deputy Commissioner of the Division of Youth and Family Justice, who is also responsible for managing the City's juvenile detention facilities, and JJI appears to be subject to day-to-day supervision by the Executive Director of Youth Justice Programs, who was a key participant in this hearing. Under the Executive Director are the JJI/ATD Program Director, a Director of Juvenile Justice Permanency Planning ( i.e., placements), and a Director of Family Services. A JJI/ATD Borough Director is assigned to the Family Court in each county of New York City, and the Borough Director is assisted by two JJI/ATP Family Service Specialists. The JJI staff in the Family Courts are responsible for screening, assessing, and enrolling adjudicated juvenile delinquents for the JJI program (JJI Manual at 4).
Although New York City already had functioning alternatives to placement programs such as Esperanza, the new JJI program to be managed by ACS was designed to be a different type of therapeutic program.
At its inception, the new JJI program was essentially a structure without a foundation so policy makers, who often refer to themselves as “juvenile justice stakeholders”, decided to adopt the Multisystemic Therapy Model (MST) as the basis of the ACS JJI program.
During the course of the hearing the Executive Director for Youth Justice Programs emphasized that ACS JJI “is not Esperanza ”.
The City then entered into a licensing agreement from MST Services, Inc., the corporate arm of the Family Services Research Center at the Medical University of South Carolina which manages the MST Institute.
The adoption of MST as the foundation of the New York City JJI program was not the first time that MST had been attempted to be implemented in New York State. In 2003 OCFS had attempted to “establish a MST placement program for OCFS youth from New York City” (Letter dated June 23, 2008 from OCFS Commissioner Gladys Carrion to former Governor Paterson transmitting OCFS report entitled Effects of Multisystemic Therapy (MST) on Recidivism Among Juvenile Delinquents in New York State [June 2008] [hereinafter “2008 OCFS MST Report”] ). According to the Commissioner's letter, the 2003 attempt to introduce MST as an alternative to placement “failed due to opposition from judges and others in the legal community who had concerns about whether the program would adequately protect the safety of the community” ( id .).
While this decision concerns how MST services were provided to Mr. T. and his family, rather than an examination of the theory underlying MST, a brief overview of MST is helpful. MST was “created” in the mid-to-late 1970s by Scott W. Henggeler, Ph.D., a psychologist who is a Professor in the Department of Psychiatry and Behavioral Sciences at the Medical University of South Carolina (“MUSC”). Dr. Henggeler is also the Director of the Family Services Research Center at MUSC, and a member of the Board of Directors of MST Services, Inc.
According to some sources, “MST is a treatment alternative with proven results in effectively rehabilitating delinquent youth. It was originally developed in the 1970s as an alternative to ineffective and costly mental health treatment for juveniles. However, since its creation, MST has been used and tested in numerous studies that have analyzed its effectiveness in correcting behavioral issues in juvenile offenders” (Upchurch, Note, Putting Focus Back on Family: Using Multisystemic Therapy and Regionalized Incarceration as an Alternative to the Texas Youth Commission, 15 Tex Wes L Rev 161, 171 [2008] ). “MultiSystemic Therapy (MST) is an actual treatment model rather than a service delivery program. It is an intensive home-based cognitive-behavioral therapy. The program's emphasis is on juveniles with behavior disorders * * * [i]n this model, a clinician carries a limited number of cases with intensive supervision from the national MST site. The clinician works with a family for several months and assists them in developing a self-sustaining network in the community” (Griffin and Jenuwine, Essay, Using Therapeutic Jurisprudence to Bridge the Juvenile Justice and Mental Health Systems, 15 U Cin L Rev 65, 85 [2002] ).
Griffin and Jenuwine also highlight the cost-effectiveness of MST. They observe that “MST can be funded by a single agency that hires a clinical team and contracts with the MST site in South Carolina for training and supervision of clinicians. This model is an alternative to residential treatment and to using multiple providers. Given that many of the minors served by MST would otherwise be in residential care, courts can arguably recoup their costs and, therefore, MST is very cost effective” (Griffin and Jenuwine, supra at 85).
G
Luis T. was a prime candidate for enrollment in the MST program. According to MST Services, Inc., “MST targets chronic, violent, or substance-abusing male and female juvenile offenders at risk of out-of-home placement. The typical' MST youth is 14–16 years old
, lives in a home that is characterized by multiple needs and problems, and has multiple arrests” (Multisystemic Therapy: An Overview. Available at www.mstservices.com/ index.php/respurces/mst-library [last accessed January 5, 2012] ). According to Dr. Henggeler, “MST focuses first on improving psycho-social functioning for youth and their families so that the need for out-of-home child placements is reduced or eliminated” (Henggeler, Treating Serious Anti–Social Behavior in Youth: The MST Approach, U.S. Dept. of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Bulletin [May 1997] [hereinafter OJJDP Bulletin] ).
In New York City the typical MST-eligible youth is more likely to be male than female. MST is not considered as an alternative unless placement has been recommended by the Department of Probation and the Family Court Mental Health Services Clinic. Because the New York City Department of Probation utilizes the Probation Assessment Tool which was developed with the assistance of the Vera Institute, and which this Court has observed, relies upon gender-based assumptions rather than variables applicable to an individual respondent, very few female juvenile delinquents are ultimately recommended for institutional placement by the Department of Probation ( see, Matter of Geraldine A., supra ).
According to Dr. Henggeler, “MST's family preservation model of service delivery is based upon the philosophy that the most effective and ethical route to helping children and youth is through helping their families. MST views families as valuable resources, even when they are characterized by serious and multiple needs. Services are directed toward the psychological social, educational, and material needs that face families in which a child is in imminent danger of out-of-home placement” (OJJDP Bulletin at 2). Dr. Henggeler further states that “[s]ervice duration ranges from 3 to 5 months in MST, with the average duration of treatment being approximately 60 hours of contact over 4 months, with the final 2 to 3 weeks involving less intensive contact to monitor the maintenance of therapeutic gains ( id.). Services are provided by a treatment team “consisting of one doctoral-level supervisor and three to four master-level therapists, with each therapist carrying a caseload of four to six families” ( id. at 3).
The MST therapist assigned to a juvenile and his or her family is charged with the responsibility to “design[ ] individualized interventions in accordance with MST treatment principles that address specific needs of the youth and family” ( id.). MST staff are on call 24 hours a day and 7 days a week and they meet with the juvenile and family members at night and on weekends as needed. Because MST is designed to focus on the juvenile's “ecology”, “MST is typically delivered in home and community settings to increase cooperation and enhance generalization. Sessions are usually held in the family's home at a convenient time ... [and] the specific family members who attend will vary with the nature of the particular problem that is being addressed (e.g., youth are usually not included in sessions that address lax parental discipline, so as not to undermine parental authority)” ( id.).
While the Court asked several witnesses to provide a definition of a successfully completed MST case, the answer is provided by Dr. Henggeler himself, who states that “MST defines success in terms of reduced recidivism rates among participating youth, improved family and peer relationships, decreased behavioral problems, and decreased rates of out-of-home placements” ( id.). According to Dr. Henggeler, research demonstrated that where an MST therapist monitors court-ordered conditions “such as curfew, school attendance, and participation in agency programs that were typically monitored by probation officers youth who received MST had fewer arrests, reported fewer criminal offenses, and spent an average of 10 fewer weeks in detention during a 59–week followup” ( id.).
The 2008 OCFS MST Report cautioned that “although several studies have shown participation in MST to be associated with large, and often significant, reductions in recidivism, these findings are not universal and are largely based upon research studies conducted by individuals closely tied to the MST Institute” (OCFS MST Report at 9).
MST has been presented by its creators and by the witnesses who participated in this hearing as an “evidence based” program designed as a cure-all for the social problems caused by juvenile delinquency. The MST program is presented as a benign and less costly alternative to placing often dysfunctional, violent, and anti-social youth, many of whom suffer from psychological disorders, substance abuse issues, and cognitive deficits, in the care of a state agency.
It bears noting that the introduction of MST as an alternative to placement is but the current formulation advanced by juvenile justice policy makers that attempts to adopt social science and medical analogies in a quest to find an effective treatment for juvenile delinquency ( see, B. Feld, The Transformation of the Juvenile Courts, 75 Minn L Rev 691, 694 [1991] ). The search for a “cure” for juvenile delinquency has gone on for nearly a century.
The 2008 report prepared by OCFS noted that there were concerns surrounding MST's claim of “evidence-based success”. The OCFS researchers observed that “[t]he relative lack of independent research on MST has also been raised as a concern. Much of the available research supporting MST has been conducted by or closely supervised by the individuals responsible for developing the MST model” (2008 OCFS MST Report, at 8). The OCFS researchers found that “while two recent independent evaluations ... support the use of MST, other independent evaluations have been less favorable” ( id.).
At this point, New York has not abandoned the due process based adversarial model for the adjudication of juvenile delinquency, nor has it entirely abandoned the use of institutional placements for adjudicated juvenile delinquents. Given these facts, MST is in a sense a halfway measure which has been inserted by a local government into the existing statutory framework, without the approval of the Legislature. The use of MST for adjudicated juvenile delinquents who would otherwise be “placement-bound” has serious consequences for the probation agency legally responsible for supervising the juvenile, the governmental agency responsible for managing the MST program, the non-governmental social service agency which provides services directly to the juvenile and his or her family, and the juvenile who remains in the community. Where the MST provider agency seeks to maintain one of its participants in the community, notwithstanding the existence of circumstances which would cause other actors in the juvenile justice system to take immediate action, the juvenile and the larger community are unnecessarily exposed to an unacceptable risk of harm.
VII
At the conclusion of the dispositional hearing in this case on June 21, 2010, the Court adjudicated Luis T. to be a juvenile delinquent based upon his need for supervision and treatment (Fam. Ct. Act § 352.1[1] ), and the Court put him on probation for eighteen months in accordance with Family Court Act § 353.2.
In a juvenile delinquency proceeding “[t]he court may order a period of probation if the court, having regard for the nature and circumstances of the crime and the history, character and condition of the respondent, is of the opinion that:(a) placement of the respondent is not or may not be necessary; (b) the respondent is in need of guidance, training or other assistance which can be effectively administered through probation; and (c) such disposition is consistent with the provisions of subdivision two of section 352.2” (Fam. Ct. Act § 353.2[1] ).
“In New York, as in other jurisdictions, a sentence of probation is an option among various sentencing alternatives short of confinement. The probationer, although physically not confined, remains in the legal custody of the court for the probationary period” (People v. Hale, 93 N.Y.2d 454, 461;see also, Matter of Markim Q., 7 NY3d 405, 410). Probation serves essentially the same rehabilitative role in the juvenile justice system as it does in the criminal justice system. In both contexts, a disposition or sentence of probation “is a method of offering an offender an opportunity to rehabilitate himself, without institutional confinement, under the supervision of a probation officer and the continuing power of the court to use a more stringent sanction in the event the opportunity is abused” (People v. Letterlough, 86 N.Y.2d 259, 264 [citation omitted] ).
In order to ensure that probation achieves its fundamental goal of rehabilitation, and to ensure that the probationer conducts himself or herself in a law-abiding manner, both the Penal Law and the Family Court Act authorize the court to impose both general and specific conditions reasonably related to the offender's rehabilitation (Penal Law § 65.10[2]; Criminal Procedure Law § 410.10[1]; Fam. Ct. Act § 353.2[2]; Letterlough at 265; People v. McNair, 87 N.Y.2d 772, 774;Hale at 461; Matter of Matter of Ashley D., 55 AD3d 605, 606;Matter of Eunique B., 73 AD3d 764;cf., Matter of Brandon W., 28 AD3d 783, 784,lv denied7 NY3d 702 [condition that juvenile submit to polygraph examination improper] ). Violations of the court-imposed conditions of probation constitutes grounds to commence violation proceedings ( see,Criminal Procedure Law § 410.70; Fam. Ct. Act §§ 353.2[4]; 360.3; Markim Q. at 408).
When the Court ordered probation supervision for Mr. T. on June 21, 2010, he was placed under the supervision of the New York City Department of Probation for a period of 18 months (Fam. Ct. Act § 353 .2[6] ). In ordering probation, the following conditions were imposed by the Court in its order of disposition in accordance with Family Court Act § 353.2(2):
—cooperate with the Juvenile Justice Initiative program and cooperate in multi-systemic therapy;
—cooperate with the Department of Probation;
—respondent is to abstain from and test negatively for marijuana, alcohol, and controlled substances;
—respondent is to complete 150 hours of community service;
—respondent is not to commit any further violations of the law (no new arrests);
—respondent is to attend school regularly (no suspensions); and
—respondent is to obey lawful commands of parent, including 6:00 PM curfew until respondent completes 75 hours of community service, thereafter as set by parent and probation.
Respondent was provided with a copy of the order of probation containing these conditions, as well as a form by the Department of Probation setting forth the general terms of probation supervision and also incorporating the specific conditions imposed by the Court (Fam. Ct. Act § 353.2[5] ). The general conditions of probation provided to Mr. T. were as follows:
—report to your Probation Officer as directed and permit him or her to visit you at home and elsewhere;
—obey the lawful commands of your parents or other person legally responsible for your care;
—notify the Probation Officer immediately of any change of address of school;
—attend school regularly and obey all lawful school rules and regulations or be regularly employed;
—not act in an unlawful or disorderly manner; and
—not use drugs, the possession of which is illegal; not use drugs requiring a prescription without a prescription being issued by a duly licensed physician; not to use intoxicants, either by mouth or by inhaling.
While the Court expected that the Department of Probation would, in accordance with its legal responsibility, supervise Mr. T. in the community during the period of probation ordered, that did not occur as the Court would have expected due to the fact that Mr. T. was enrolled in MST therapy with the CCNY JJI program. The failure or inability of the Department of Probation to properly supervise Luis T. during the period of probation significantly contributed to his present unfortunate circumstances. However, that failure was of a systemic nature, codified in written policies and interagency memorandums governing the JJI program. Blame should not be laid at the doorstep of the probation officer, SPO, or probation Branch Chief who testified at this hearing, as they were simply carrying out the policy directives of their superiors.
A
The purpose in ordering a period of probation supervision is to rehabilitate the offender while at the same time ensuring that the offender lives a law-abiding life ( Letterlough at 265; McNair at 774–775). “Probation contemplates and even requires a level of official supervision substantial enough to insure that the defendant will lead a law-abiding life, or to assist the probationer toward that goal” ( Hale at 461 [internal citations omitted] ), and “[t]he purpose of the probation department is to protect the safety and property of persons by prevention of juvenile delinquency and adult crime and related family malfunctioning, with maximum effectiveness and at reasonable cost” (9 NYCRR § 347.3[a] ). Thus, this Court's order which placed Mr. T. on probation was fashioned to permit him to remain in the community under the conditions imposed in the order under the supervision of a probation officer (9 NYCRR § 351.1[k] ).
The state probation regulations require that each juvenile placed on probation by a Family Court be classified for purposes of providing “differential supervision” ( see, 9 NYCRR §§ 351.1[f]; 351.4). Here there was testimony that Luis T. was classified as a “high risk” case, a Level I” case for purposes of differential supervision by the Department of Probation. In a high risk or Level I case, the assigned Probation Officer is required to make 4 or more personal contacts with the probationer each month, at least one of which must be a home visit (9 NYCRR § 351.4[a][1][i][a][1] ), as well as 6 or more collateral contacts per quarter which, in juvenile delinquency cases, mean contact with the juvenile's parent or guardian and school officials (9 NYCRR § 351.4[a][1][i][a][2] ).
Where there is “ample justification and with the approval of the immediate supervisor, a probation officer may reduce the number of collateral contacts to no fewer than three per quarter. Justification for an approval of any reduction shall be recorded in the official case record” ( id.).
Personal contact is defined as “face-to-face contact with the probationer by the assigned probation officer or officers, or other authorized personnel operating as a team” (9 NYCRR § 351.1[n][1] ). A Home visit means “a visit to the probationer's home to verify residence, to assess living conditions, monitor probationer compliance with the conditions of probation, and/or address service needs” (9 NYCRR § 351.1 [n][2] ). Collateral contact means communication between a probation officer or department staff and someone other than the probationer “concerning the probationer's behavior or status” (9 NYCRR § 351.1[n] [3] ).
The regulations authorize two substitute personal contacts to replace two of the required four monthly face-to-face contacts between the assigned probation officer and the probationer (9 NYCRR § 351.4[a][1] [i] [a][1] ). Substitute personal contact “means a communication between a probation department and a service provider of residential care that gives sufficient information about the probationer as to stand in the stead of a face-to-face contact” (9 NYCRR § 351.1[n][4] ), and a service provider is defined as “any agency, organization or individual licensed, certified, or regulated by law that provides services to the probationer in accordance with the probationer's needs” (9 NYCRR § 351.1[r] ).
With respect to violations of the conditions of probation imposed by a sentencing court, the state regulations contain procedures which address “graduated sanctions” as well as violations of probation not involving the commission of new offenses.
The graduated sanctions provisions are “a system of incentives and sanctions that provide for the use of incentives/rewards to include but not be limited to easing of restrictions for continued compliance, granting travel requests, decreased reporting requirements, and progressively more severe of restrictive sanctions for continued non-compliance” (9 NYCRR § 352.1[d] ). The objective of the graduated sanctions rule is to “promote[ ] public safety and offender accountability through prompt and decisive action in situations where a probationer is not in compliance with the terms and conditions of probation” (9 NYCRR § 352.2), and the uniform procedures are intended to “control the response to non-compliant behaviors [and] facilitate uniform decision making” ( id.).
Where the probationer is engaging in behavior which does not comply with the conditions of probation imposed by a court or by the Department, other than new arrests, the regulations contain a procedure to follow. Where a probation officer “has reasonable cause to believe that a probationer has not complied with condition(s) of probation, the probation officer shall commence an investigation” (9 NYCRR § 352.5[a][1][i] ), which shall include a determination as to “the facts and seriousness of the alleged non-compliance” (9 NYCRR § 352.5[a][1][ii] ). Where the investigation yields proof of a significant technical violation, the probation officer is required to notify his or her supervisor, and “[w]ith supervisory approval, one of the following actions shall be taken, pursuant to local written probation policy, based upon the nature of the alleged non-compliant behaviors and potential threat of the probationer to the victim(s), community, and/or self:
(i) Administrative Review. When it is determined that the non-compliance does not require court involvement, the probation officer and supervisor/director shall discuss the non-compliant behavior(s) with the probationer. Where the probationer is a juvenile, the parent/guardian shall also be present. During this meeting, the probationer's progress in achieving the goals of the case plan and adhering to the conditions of probation will be addressed. A summary of the meeting shall be entered into the case record.
(ii) Judicial Reprimand and/or Modification of Conditions. As a result of an administrative review, the probation department may request that the court require the probationer to appear for the purpose of modifying the conditions of probation or for a judicial reprimand.
(iii) Violation of Probation. When it is concluded that a violation of probation hearing is appropriate, a Violation of Probation Petition and Report shall be prepared by the probation officer with supervisory approval and forwarded to the court.
B
State regulations authorize a local probation director to establish a written policy and procedure governing non-compliance with the conditions of probation. The local policy “shall be consistent with public safety and effective supervision strategies for determining the appropriate course of action to take, and timeframes within which to take those actions (9 NYCRR § 352.4 [a] ). The sanction policy for non-compliance “shall provide for:
(1) consideration of the probationer's history of compliance with the terms and conditions of the current disposition; gravity of the non-compliant behaviors; dangerous to self and/or others; and other case-specific circumstances. If the non-compliance is that of a new offense conviction, the nature of the seriousness of the acts for which convicted, the possible disposition of the charges, and the presence of victims shall also be considered;
(2) consideration as to which sanctions might be suitable to achieve compliance and/or offender accountability while reducing the need for formal court intervention; and
(3) a series of graduated sanctions (such as intensifying the level of supervision, reprimands by department administrative officials, changes in service providers, and greater restrictions of movement) that can be imposed administratively by the department;
(4) consideration, if a Violation of Probation Petition and Report is being prepared, as to the feasibility and advisability of:
(i) continuing the probation sentence or disposition with or without modification;
(ii) extending the probation term as provided by law; or
(iii) when revocation of the probation sentence is recommended, whether to propose a sentence of imprisonment coupled with probation as authorized by law, where the original sentence contained no condition of imprisonment.
VIII
The New York City Department of Probation, Division of Juvenile Operations, has promulgated a Violation of Probation (“VOP”) Policy, which the witnesses from the Department of Probation testified guided their actions in this case.
In its “purpose” section, the VOP Policy Manual states that the Department's “[v]iolation policy seeks to balance public safety and the best interests of juvenile delinquents while actively working to safely reduce the use of out-of-home placement. The Department is responsible for supervising the probationer's behavior in the community while also insuring the provision of appropriate services by taking a more proactive role in connecting juvenile probationers with services when needed. DPCA Regulations assert that the Probation Officer (PO) has an affirmative responsibility and obligation to use all means available to maintain the probationer in the community, while also ensuring that public safety needs are met (VOP Manual at 1 [emphasis in original] ).
The VOP Manual inexplicably cites 9 NYCRR § 352.1 as authority for the purposes of the violation of probation policy. however, 9 NYCRR § 352.1 is a section of definitions which apply to the administration of probation and graduated sanctions and violations of probation. The following section, 9 NYCRR § 352.2 is captioned “Objective” and it provides that “[t]his rule promotes public safety and offender accountability through prompt and decisive action in situations where a probationer is not in compliance with the terms and conditions of probation. These uniform procedures control the response to non-compliant behaviors, facilitate uniform decision making, and encourage the use of graduated sanctions as appropriate and available.”
The VOP Manual further states that “A VOP should be filed only when the needs of a probationer are beyond the scope of the resources available to the Department of Probation. This should be a last resort after multiple efforts have been made, including multiple graduated sanctions. Additionally, the filing of a Violation of Probation [petition] should not automatically result in a recommendation of Placement” (VOP Manual at 1 [italics in original] ). “The probationer's overall adjustment to Probation supervision and his/her needs must be considered when making this recommendation” ( id.).
With respect to the issue of initial non-compliance with the conditions of probation, the VOP Manual directs that the probation officer be proactive and take steps to decrease the chance of further non-compliant behavior ... [f]or example, if a youth is not showing up to meetings, the PO must call and/or visit the probationer's home and make every effort to get to the root of the problem and re-engage the youth” (VOP Manual at 1–2). Where there is continuing noncompliance with the conditions of probation, and the juvenile “does not respond to the reengagement efforts ... the PO should respond by following several clear steps in an effort to prevent the need for a VOP” ( id.).
The steps specified in cases of continued non-compliant behavior are indicated as: (1) a rereading of the Probation Assessment Tool to ascertain whether the needs specified for the youth in the PAT are being met and whether there are needs that require services; (2) implementation of support services to reverse non-compliant behaviors and prevent future non-compliance. Aside from reaching out to the juvenile's parent, the probation officer is directed to refer the juvenile to support services such as “tutoring, after school programs, mental health counseling, family mediation, anger management”; (3) implementation of a sanctions and rewards system if there is continuing non-compliant behavior after the juvenile has been referred to support services ( id. at 3).
The VOP Manual contains a Graduated Sanctions “grid” for both General and Enhanced Supervision cases. It sets forth a system of responses for compliant and non-compliant behaviors which correlates to three different levels of response by the Probation Officer. In cases where the juvenile is compliant or has improved upon previously non-compliant behavior, the “rewards” include “donated incentive items” to be given to probationers which include, for example, baseball caps, meal coupons, tee shirts, magazines, movie tickets, novels, sporting event tickets, theater tickets and certificates of recognition. In cases of “minor misconduct”, which is defined as failing to report for 1–2 meetings with a Probation Officer, disruptive behavior at home or school, cutting class, and curfew violations (VOP Manual at 16, 17), the Probation Officer's responses in general and enhanced supervision cases include a warning, a written assignment, one day of community service, a visit to the juvenile's school or home, an educational project, assignment to an after-school program, a decreased or earlier curfew, a referral to mediation, or a family group conference ( id. at 16).
In cases of “moderate misconduct”, which is defined as a new arrest, drug/alcohol use, repeated failure to report [for meetings with a probation officer], failure to attend group/ counseling sessions, [and] truancy ” (VOP Manual at 16, 17 [italics added] ), the recommended responses in both general and enhanced supervision cases are community service, mediation, referral for drug or alcohol rehabilitation services, “court watch”, referral to “youth court”, a direction to attend group sessions, increased reporting, a decreased or earlier curfew, a family group conference, one to two days of home confinement, and a referral to anger management, gang awareness, and drug treatment programs ( id.).
Finally, in cases of “serious misconduct” which is defined as “multiple and chronic misconduct issues, repeated arrests, a violent felony arrest, or new findings” of juvenile delinquency, the recommended responses in both general and enhanced probation supervision cases are youth court referral, three to five days or ten to fifteen days of home confinement, increased reporting, a family group conference, an Administrative Hearing, a step up from general probation supervision to enhanced probation supervision, and lastly the filing of a violation of probation petition. Cryptically, a footnote to the graduated sanctions grid states that “[i]f the probationer's disposition is probation with an intensive community program, such as Esperanza or JJI, rewards and sanctions should only be considered in consultation with program staff” (VOP Manual at 16).
The VOP Manual directs that probation officers discuss non-compliant behavior by a juvenile with the Supervising Probation Officer (SPO) in order to “outline strategies to respond to the non-compliance” ( id. at 4). Through an assessment of the needs of the juvenile, the probation officer and SPO should determine whether there are any additional services that the Department of Probation can provide to the juvenile, and then “create a plan of action for the youth” ( id.). There may be an informal “administrative review” to address ongoing noncompliant behaviors. This review involves the probation officer and the SPO, along with the juvenile and it involves an assessment of whether there should be a change in the services being offered to the juvenile or modification of the sanctions and rewards system in a given probation case.
The VOP Manual provides that “[i]f after ten business days, there is still no change in compliance from the probationer after an Administrative Review, the PO in consultation with the SPO should arrange to hold an Administrative Hearing” ( id.). According to the Manual, “[a]n Administrative Hearing should only be called following consultation with the SPO and after all appropriate service referrals and a system of sanctions and rewards have not yielded improved behavior. The Administrative Hearing involves the PO, SPO, youth, and their parent or other guardian.” (VOP Manual at 4–5).
The Manual further states that:
• At the Administrative Hearing, the PO should outline the probationer's noncompliance, but should also include any areas of behavior that showed improvement in order to build upon these accomplishments.
• The PO should provide clear directives to address the problematic behavior, and the steps the probationer needs to take to prevent a Violation from being filed.
• Following the presentation of this information, the youth and parent or guardian should receive a contract detailing modifications or additions to the supervision plan.
• The PO needs to ensure the probationer and parent/guardian understands that signing the contract indicates that they are making a commitment to comply with the plan.
• The contract time frame should not exceed 30 days.
• It should be made very clear to the youth and their parent that continued non-compliance will likely result in a VOP (VOP Manual at 5 [italics omitted] ).
However, the VOP Manual stresses its mandate that the filing of a violation of probation petition is an absolute last resort through its provision of a less severe mechanism which is an application to unfavorably terminate probation. According to the manual, “[w]hen a probationer is consistently non-compliant and all of the above steps have been taken, the PO should consider whether or not an unfavorable termination of probation is appropriate” (VOP Manual at 6). While this type of application is infrequently encountered in Family Court, the Manual indicates that “[i]f the youth is non-compliant but does not pose a threat to the community and the Department has exhausted all available services, unfavorable termination is an option that should be explored before violation; in such a situation our services may no longer be of assistance, yet further punitive measures may be deemed unnecessary or unproductive, especially when considering the age of the probationer” ( id.).
AThe VOP Manual identifies “common non-compliance issues” encountered in juvenile probation cases and standardized actions and responses to be followed by probation officers. The first common situation is where the juvenile is AWOL from his or her home. The probation officer is required to attempt to locate the juvenile. If the juvenile cannot be located, or he or she is an immediate threat to self or to the community, the probation officer must instruct the parent to file a missing persons report with the Police Department, and “if the probationer is still AWOL after 24 hours, the PO must confer with the SPO to decide whether to file a VOP” ( id.);
The second common occurrence is where the juvenile has been arrested again. In that instance, the Manual provides that “the PO's actions will depend largely on the outcome of the case. first and foremost, the PO must obtain information regarding the new arrest from a verifiable source including direct contact with the NYPD. A violation should not necessarily be filed immediately based solely on the new arrest before there is a finding” ( id. at 7 [emphasis in original] ). Indeed, the VOP Manual reflects a posture of general inactivity by the Department after learning that a juvenile delinquent has been rearrested. The Manual directs that “the PO should review the probationer's general compliance prior to the new arrest and depending on the circumstances (i.e. time of arrest and location) and charges, a violation might be warranted” ( id.).
The Court was astonished to learn that the VOP Manual further provides that “[m]ultiple arrests in a close time frame, an arrest for a firearm, or an arrest for a violent felony may require a more immediate assessment and modification of the probationer's status or potentially a violation ( id. [italics added] ). However, where the Family Court has included “no new arrests” as a specific condition of probation, as the Court did in the case of Luis T., the VOP Manual provides that the probation officer is required to file a violation petition immediately ( id.).
Inexplicably, where “no new arrests” is not specifically included as a condition of probation by the Family Court, the VOP Manual authorizes the Department to withhold the existence of a further juvenile delinquency adjudication or a criminal conviction from the attention of the judge who placed the juvenile under probation supervision. This is so even if the new arrest and/or conviction involves a firearm or is for a violent felony offense. According to the Manual, “[i]f the new finding or conviction is the only instance of non-compliance, the SPO should discuss the case with the Branch Chief to determine if permission should be requested not to file a violation. Permission not to file is given by the Assistant Commissioner after consultation with the Branch Chief” ( id. at 8).
Where authorization not to file a violation petition is granted, the probation officer or SPO “will then inform the prosecuting ACC of the original offense citing the reasons the Department decided not to file a violation on the new offense” ( id.). The purpose in informing the Presentment Agency, which would have prosecuted the subsequent case if it involves juvenile delinquency, that a juvenile probationer has acquired another adjudication of juvenile delinquency or a criminal conviction seems pointless. The Presentment Agency cannot override the Department of Probation determination, especially where that decision is made by an Assistant Commissioner.
The third common type of non-compliance involves truancy, which was certainly the case with Luis T. The VOP Manual directs that the probation officer contact the Department of Education where there is evidence that a juvenile is not attending school. The Manual notes that truancy “if left unaddressed, will likely worsen over time” (VOP Manual at 9). Shockingly, instead of focusing on the juvenile's willful failure to attend school as required by the Education Law, and most likely a specific condition of probation imposed by a Family Court Judge, the Manual provides that “the PO should revisit the educational needs of the youth, and assess whether or not these needs are being met by the current school' ( id.).
While there is certainly cause to investigate the circumstances where a juvenile is not attending school, the Manual suggests that “truancy interventions” such as “guidance meetings and school transfers or enrollment in alternative educational settings, such as vocational schools or GED programs” be considered, even where the juvenile may have been suspended from school by the Department of Education for violation of school rules ( id.). The filing a violation of probation petition for chronic truancy is not considered appropriate by the Manual, even where the judge has ordered that the juvenile attend school regularly with no suspensions as a condition of probation. The Manual provides no guidance as to a specific point where a juvenile's failure to attend school is considered so severe that the matter should be brought to a judge's attention by way of a violation petition. This is not surprising, as the VOP Manual expresses the policy position that truancy is an insufficient grounds upon which to commence a violation proceeding.
The VOP Manual seems to suggest that school attendance by juvenile delinquents placed under probation supervision is optional, even where a Family Court Judge has ordered as specific conditions of probation that the juvenile attend school, not cut classes, and not be suspended. The VOP Manual provides that “ [t]ruancy should not be the sole reason for a violation. After all educational options have been explored and implemented and multiple efforts made, if the youth is chronically truant (i.e. attending less than 20%) and is not engaged in any other form of productive behavior (i.e. working during school hours) then the PO should confer with the SPO. A violation should only be considered when truancy is an issue among other examples of noncompliance” (VOP Manual at 10).
Had the Department of Probation given a higher priority to the complete failure of Mr. T. to attend school his case could have been brought before the Family Court sooner. Indeed, this Court specifically ordered that Mr. T. was to attend school regularly with no suspensions as a condition of his probation. Moreover, given that the failure of Luis T. to attend school was but one of several types of non-compliant behavior he engaged in, his chronic truancy should have formed part of a violation of probation petition long before the initial violation petition was filed on March 14, 2011.
Failure to report to meetings with the probation officer are also considered to be a common type of non-compliance. According to the VOP Manual, the failure to keep scheduled appointments with probation officers “should be seen as non-compliant” (VOP Manual at 10), and missed appointments require inquiry and follow-up by the probation officer. While violation petitions are required to be filed for a third consecutive failure to report to an appointment with a probation officer ( id. at 11), the filing of a violation petition is not mandatory where the juvenile's failure to report is “intermittent” ( id. at 10).
“Parent Complaints” which are defined as parental frustration and the expression “of the desire for the youth to be removed from the home” ( id. at 11) are also classified as a common non-compliance issue. In such instances, the VOP Manual directs that the probation officer “should explore any needs that the parent might have that are causing or adding to the conflict with the youth, and if necessary and appropriate, identify alternative living arrangements” ( id.)
The Manual warns against offering the option of the filing of a violation petition to a parent who is frustrated and expresses a desire for his or her child to be removed from the home and likely placed in an institutional setting. This is a policy based upon the Department's apparent belief that “Probation should not be a conduit for the removal of youth who are otherwise doing well by attending school regularly, meeting with the PO, etc.” ( id.). The Manual is silent with respect to juveniles, like Luis T., whose parent expresses frustration and a desire to have the child removed from the home, and where the juvenile is also non-compliant with several of the conditions of probation.
B
With respect to the filing of petitions alleging a violation of probation, the VOP Manual provides that “[t]he filing of a VOP is a joint decision made by the PO and SPO and should be done in the case of serious non-compliance or an AWOL which indicates that the community and the probationer are at increased risk” (VOP Manual at 12). The Manual cautions that a VOP petition should not be filed until “all interventions have been exhausted” ( id.), but special provisions apply where the court has imposed specific conditions of probation in accordance with Family Court Act § 353.2(2). In those instances, the VOP Manual provides that a violation petition “must be filed due to non-compliance with a special condition of probation imposed by the judge” ( id. at 13). The Manual notes that “[c]ommon special conditions of probation are specific orders; for example, no new arrests or any delinquent acts, drug testing specifications, required living situations, etc.” ( id. [italics added] ).
In this case the Court clearly imposed several “special” conditions of probation, all of which appear to have been of no significance once Luis T. enrolled in the CCNY MST program. The repeated violations of probation were duly noted in the contemporaneous case notes maintained by Edward Lee. A review of Mr. Lee's notes and the monthly “report” cards submitted to the Department of Probation by CCNY reflect that CCNY under-reported the frequency and nature of the violations of the conditions of probation committed by Mr. T. while he was receiving MST services. While the Department of Probation might have taken more deliberate action consistent with its VOP Policy had it been fully informed of respondent's non-compliant behaviors, the CCNY MST therapist, MST supervisor, and apparently the MST consultant merely treated the multiple violations of probation as behavioral issues to address through further expansion of the MST services being offered.
Indeed, it was not until the Department of Probation decided to compel Mr. T. to enroll in the Camelot residential drug treatment program that CCNY grasped that Mr. T. had essentially failed to benefit from MST services. The only successes which CCNY could identify for the entire six-month period in which Luis T. received MST services through CCNY was a single clean drug screening at the beginning of MST, and his eventual completion of the Job Net program.
For its part, the Department of Probation conceded that it was absolutely aware of the so-called “special” conditions of probation which the Court placed upon Mr. T. when it placed him under supervision. The Department's own written VOP Policy required that a violation of probation petition be filed based upon respondent's violations of the court-imposed conditions. The record contains indisputable evidence that Luis T. had committed multiple violations of the court-imposed conditions, and had a violation petition been filed in accordance with the VOP Manual, this Court would have had several options, including removal of Luis T. from the community, long before his three separate arrests for violent felonies in three different counties of New York City ( see,Fam. Ct. Act § 360.3[2][b]; Matter of Jazmin A., 15 NY3d 439, 444).
However, it appears that because of the de facto insertion of the MST provider agency between the juvenile and his or her assigned probation officer, and the assumption of the duty of providing day-to-day supervision of the juvenile by the MST therapist and MST agency personnel in place of the probation officer, the Department of Probation was prevented from taking action much earlier in the T. case.
C
On June 6, 2011 the JJI program of the Administration for Children's Services issued the second version of the JJI Alternative to Placement Goals and Guidelines Manual (hereinafter JJI Manual). Underlying the JJI Manual's program goals, referral process, case protocols and procedures, as well as the definition of the roles and responsibilities of the entitles involved in JJI are several Memoranda of Understanding entered into between senior ACS staff and other City agencies. In addition, there is a Memorandum of Understanding entered into by ACS with the Legal Aid Society, which pursuant to its contract with the Office of Court Administration, represents the overwhelming majority of juvenile delinquents in New York City Family Court.
The Memorandum of Understanding (“MOU”) between ACS/JJI and the Legal Aid Society provides, in pertinent part, that “[t]he Legal Aid Society of New York [City] supports the goals and objectives of the New York City ACS Juvenile Justice initiative (JJI) to reduce the number of young people with delinquency cases who are placed in care with the Office of Family and Children's Services through the provision of community-based services” (JJI Manual, Appendix H, at 50). The MOU, which was executed by the Deputy Commissioner of ACS and the Attorney–in–Charge of the Juvenile Rights Practice of the Legal Aid Society, describes the process through which juvenile delinquents are screened for acceptance into the JJI program.
A document designated as Appendix K to the JJI Manual sets forth the partnership between ACS and the Department of Probation in relation to the JJI program ( id. at 62). The relevant portions of “Appendix K” read as follows:
I. Overarching Probation–JJI Structure
a. All probation officers initially assigned to JJI cases will be experienced probation officers that volunteer for the assignment. These probation officers will be provided with training from Probation and from JJI on the JJI Evidence–Based service models and on how to manage effectively this specialized caseload.
b. The standard caseload for youth in Probation general supervision is approximately 50 to one. In contrast, the probation officers dedicated to JJI will carry a maximum of 25 cases at any given point in time so that these officers can spend more focused time and energy partnering with the JJI contract agencies to ensure the successful community support and supervision of these youth (italics added).
c. The probation officers that are assigned to JJI cases are required to make the following contacts a month with each youth under their supervision: two office visits and one field work visit. These contacts will be conducted together with the [MST] therapist whenever feasible and appropriate ...
d. JJI probation officers are also required to make two collateral contacts on each JJI case each month. These collateral contacts willbe met by: (i) the required standard communication procedures between the [MST] therapist and probation officer assigned to the case; (ii) a brief, monthly treatment progress report that each [MST] therapist will e-mail to the assigned probation officer at least five days before the end of the month (as calculated from the date of referral) ...
II. Roles and Responsibilities
a. As the party with the lead clinical role, it will be the responsibility of the [MST] therapists to assess, monitor, and seek to improve the youth's drug behavior, abidance of curfew, and school attendance.
b. At the same time, the JJI probation officers have the lead role in monitoring [the] youth's terms of probation in an objective fashion and holding youth accountable for these terms as set by Family Court. Probation officers assigned to JJI cases will be responsible for assessing the level of risk posed by each youth in JJI—through communication with the [MST] therapist as well as through their own independent investigations.
III. Communication Policies and Procedures
a. Standard communication
(i) Within one month of the youth being placed on probation and entering JJI, the [MST] therapist, probation officer, and the Supervising Probation Officer are encourage to meet to discuss the case and the shared expectations between JJI and Probation ... [and] how the therapist and probation officer will work together on the case.
(ii) [MST] therapists and probation officers are required to communicate on a weekly basis to discuss the progress and challenges of their shared cases, and to notify each other when important changes in the status of the case occur. This communication can occur through a phone call, in person meeting, or a substantive e-mail exchange. It is the responsibility of both parties to ensure that this regular communication takes place.
(iii) [MST] clinical supervisors and the Supervising Probation Officer in their borough are required to meet in person once a month to discuss the JJI–Probation relationship in their borough as well as any challenges identified at the ground level.
(iv) All [MST] supervisors and program directors, key JJI staff, and probation staff on the ground and administrative levels working in partnership with JJI are required to meet in person on a quarterly basis to share and discuss best-practices, lessons learned, and any common challenges on the JJI–Probation partnership.
(v) ACS and Probation leadership will meet together in person on a monthly or quarterly basis to review and discuss the JJI–Probation partnership.
b. Program termination
(i) When any member of the JJI treatment team is considering terminating/violating/discharging the case, the lead party must discuss and review this decision with the other key treatment stakeholders before a decision is finalized.
(ii) If a decision is made by the [MST] therapist to terminate the case, a termination letter, as well as a deposition, will be sent to Probation.
In this case, no deposition ( i.e., affidavit) from the CCNY JJI staff is appended to the violation of probation petition or the amended violation petition filed with the court.
The JJI/Department of Probation protocol also mandates that the MST therapist and the probation officer keep each other advised and “notify each other whenever a JJI probationer is arrested or receives a summons” (JJI Manual at 64). The notification provided must include “[a] brief description of the facts of the arrest and from whom the information was obtained. The Probation Officer must tell the JJI therapist the charge(s) and will provide the penal law code number associated with the highest charge is available ( id.).
Additionally, in cases where the Family Court Judge has directed that periodic status reports be submitted concerning a juvenile delinquent, the JJI/Probation protocol provides that only “reconciled” reports be submitted to a judge ( id.). To that end, the protocol provides that “[t]he JJI clinical supervisor and the SPO must submit progress/court reports to each other no less than two business days prior to the court date. Following the sending of the report, each agency must discuss the contents of the report with the other agency. Any measurables that will be indicated in the report (e.g., days attended/absent from school, numbers of positive drug tests, etc.) must be reviewed during this call” ( id. at 65).
Interestingly, the JJI Manual provides that “[w]hen DOP has a different recommendation than the JJI provider agency, or when there is a disagreement related to the content of a report, the SPO must discuss this issue with the clinical supervisor of the provider agency. If there is no resolution, the matter needs to be taken up the chain of command to the DOP Director and the provider agency Program Director. If at this level it is not resolved, it must be taken up the chain of command to the DOP Associate Commissioner and ACS Program Director for resolution. Resolution must occur prior to court ” ( id. [italics added] ). Thus, ACS and the Department of Probation ensure that Family Court Judges receive only “sanitized” progress reports concerning youth who are on probation and enrolled in the JJI program.
D
The JJI–Probation protocol also addresses non-compliant behavior by a juvenile delinquent on probation and provides for a system of joint response by the probation officer and the MST therapist. According to the JJI Manual, this part of the protocol “must be followed whenever any of the following has occurred: (1) the Probation Officer learns that a JJI Probationer has engaged in conduct which warrants a Probation Department-driven graduated sanction; (2) the Probation Officer or JJI provider agency therapist learns that a JJI Probationer has engaged in misconduct which is likely to result in a violation of probation; (3) the Probation Officer has made the decision to, and has received approval for, the filing of a violation of probation petition; (4) the Probation Officer has filed a violation of probation petition against a JJI Probationer; and (5) the Court has ordered that a violation be filed” ( id. at 66).
The Family Court cannot to compel a Department of Probation to file a violation of probation petition (Matter of Joshua M., 59 AD3d 1073,lv denied12 NY3d 712).
The JJI–Probation protocol directs that the probation officers assigned to JJI cases and the JJI contract agency “co-manag[e] the supervision of young people on joint JJI and Probation caseloads” ( id. at 66). In addition, “[w]hen resistant behavior or outright misconduct takes place, staff is expected to communicate immediately and more frequently than once weekly to formulate a plan to handle the situation in a way that specifies clearly defined roles and responsibilities” ( id.). It should be noted, however, that the JJI acceptance letter presented to the Court in connection with the dispositional hearing makes no mention of the “co-management” of respondent's probation by the Department of Probation and CCNY. Moreover, while ACS and the Department of Probation may have entered into an agreement as to how to respond to violations of the court-imposed conditions of probation, nothing in the Court's order granted authority to these agencies to ignore respondent's multiple violations, and the failure of the Department of Probation to file a violation of probation petition violated the Department's own written VOP policy, and placed the community at grave risk of harm from Mr. T.
The ACS–Probation protocol also interferes with the supervision of the juvenile by the assigned probation officer and probation supervisors. The protocol expressly provides that “[p]ursuant to programmatic mandates [of MST Services, Inc.], no referrals to outside programs or Probation programs or groups may be made by DOP staff without the consent of the JJI provider agency therapist ” ( id. [italics added] ). Thus, the Department of Probation has not only delegated its responsibility for day-to-day supervision over the juvenile on probation, it has also by written directive, given the MST therapist, in this case, Edward Lee, veto power over the decision of a probation officer to refer a juvenile to additional services or programs. Obviously, these provisions in the JJI–Probation protocol were never disclosed to the Court prior to the order placing respondent on probation in this or in any prior case in which the Court ordered participation in JJI/MST as a condition of, and not as a substitute for, probation department supervision.
According to the JJI–Probation protocol, while “the Department of Probation has ultimate authority and responsibility over” the filing of violation of probation petitions ( id.), if the MST service provider agency disagrees with the probation officer's determination to file a violation of probation petition, the MST agency staff can seek to override the probation officer's decision because the protocol provides that “when there is a disagreement between a JJI provider and DOP regarding the filing of a VOP, the matter will be decided by the Department of Probation's Associate Commissioner” ( id.).
In furtherance of the overall mandate to avoid the filing of violation of probation petitions for juvenile delinquents who are ordered to enroll in JJI/MST, which could lead to a possible revocation or probation and to the institutional placement of a juvenile delinquent by the court, the protocol requires that the MST agency staff and Department of Probation have a “case conference” within five business days of learning that a juvenile enrolled in JJI/MST has engaged in “serious misconduct”, or he or she has been involved in an “unusual incident” or has displayed a “significant lack of cooperation” ( id. at 66–67).
However, where the juvenile is involved in “a high risk rearrest”
the JJI/Probation protocol requires that an administrative review be conducted by the probation officer, SPO, MST therapist, and MST clinical supervisor. Rather than filing a violation of probation petition where the juvenile gets rearrested for serious criminal conduct which poses a threat to the juvenile as well as to the safety of the community, the protocol inexplicably directs that a JJI/MST case proceed to an administrative review which is defined as “a more formal case conference” conducted in order to discuss the juvenile's “problematic behavior”, the “strengths of the youth and the family”, “ongoing challenges”, and “an open discussion ... focusing on the positive behavior of [the] probationer as well as areas where improvements are needed to avoid a violation of probation” ( id. at 69–70).
Defined as an attempted or completed homicide or manslaughter, possession of a gun or use of a gun to menace another, an attempted or completed stabbing, possession of a weapon, involvement in an assault, an attempted or completed robbery, possession or use of explosive substances or devices, throwing of disfiguring materials, such as bleach or lye at victim, sexual abuse, arson, violation of an order of protection, intimidation of a witness, the victim was hospitalized as a result of the incident, or there is a no new arrest clause in the dispositional order (JJI Manual at 70).
Thus, if a juvenile enrolled in the JJI/MST program is rearrested for the commission or attempted commission of serious and possibly violent criminal behavior, the case proceeds to an “open discussion”, provided that the juvenile is released by a criminal court or bail is posted, as was the case with Mr. T.' first two felony arrests in 2011.
At the conclusion of this so-called administrative review, a contract may be drawn up setting forth “specific tasks that are to be completed by the Probationer, the family, the Probation Officer, and the JJI therapist, within 30 days” ( id. at 70). Notwithstanding that the juvenile delinquent has likely violated a specific condition of his or her probation by being rearrested for a potentially serious crime, and notwithstanding the VOP Manual policy which requires the filing of a violation of probation petition where the judge orders “no new arrests” as a condition of probation, because the juvenile is participating in the JJI/MST program, the JJI/Probation protocol perversely indicates that “[a] violation of probation petition should only be talked about at this stage in hypothetical terms” ( id. [italics added] ).E
The relationship between CCNY and the Department of Probation in which CCNY largely supplanted the Department of Probation in the supervision of Luis T. is evident from reviewing the contemporaneous case notes made by Edward Lee, the MST therapist, as well as the monthly written reports which were submitted to the Department of Probation by CCNY. The probation case record entries made by Probation Officer Griffiths provides further insight into how the MST provider agency impeded the Department of Probation's supervision of the respondent, a “high risk” case, a situation which was made possible by the ACS rules relating to the JJI/MST program, and the interagency understanding reached between the Department of Probation and ACS.
The voluminous progress notes made by Mr. Lee and other staff at CCNY relating to the participation of Luis T. and his mother, Jacqueline Bayona, in MST services were entered into the record of this hearing. The record entry of June 21, 2010 states that respondent was placed on probation by this Court “to comply with JJI” (CCNY Record, Intake Report, page 2). A further entry from that day states that the “JJI services provider will be The Child Center of New York” and that the contact persons at CCNY are Jennifer Glover and Jennifer Vinces ( id.). The intake report identifies “drug misuse”, “truancy”, and educational problems as presenting issues to be address through MST, and a further record entry by ACS JJI staff states that “Luis and his family have been granted probation to work with the JJI. The Child Center of New York will assume responsibilities for providing services to the family ...” ( id. at 3).
The records of CCNY and the Department of Probation indicate the following during each of the months Mr. T. was on probation and enrolled in the JJI/MST program:
June 2010.
JJI. The case record indicates that Edward Lee first met with respondent, his mother, his 21–yearold sister Cecily Bayona, and the mother's paramour Javiel Gonzales, at the case address on June 23, 2010, after respondent had been release from detention at the conclusion of the dispositional hearing. According to the note, Mr. Lee conducted an introductory meeting at which he “gave a brief discussion of the JJI/MST program.” Luis T. was given a drug test and he tested positive for marijuana. An orientation meeting was then scheduled for the following week (CCNY Record at 1). The weekly summary for the first week of respondent's involvement in JJI/MST states that “mother and MST are concerned about Luis' curfew infractions as he is occasionally pushing his curfew limits. Luis has tested positive for THC. Monitoring issues are a concern”
The weekly report indicates that MST sessions were conducted on June 29, 2010 and June 30, 2010, and respondent's positive test for marijuana and other issues were discussed. The MST therapist discussed “monitoring in the home” and “the different supports that the family could use, such as relatives”. At the June 30, 2010 session, Mr. Lee discussed a plan for the continuous supervision of Luis by an adult and “[a]ll family members were pleased with this idea” (CCNY Record at 15). Mr. Lee also discussed the “contingency management” plan to address respondent's drug use and a plan to address Ms. Bayona's concerns about respondent's curfew violations.
The goals set for Luis T. after the first week of MST services were: (i) the elimination of criminal behavior as evidenced by no new arrest for stealing or trespassing; (ii) demonstration of school success as evidence by no unexcused absences, completion of school assignments, passing grades in all classes; (iii) a decrease in aggressive or violent behavior outside of the home, no verbal aggression, property destruction in or out of the home; and (iv) refraining from the use of drugs, as evidenced by three consecutive clean urine screens ( id. at 16–17 [italics added] ). Other goals identified by Mr. Lee included the creation of a plan to monitor Luis T. between the hours of 8AM through 8PM. Ms. Bayona is employed, and she identified her sister and aunt as potential resources to keep track of the respondent. Mr. Lee also indicated that respondent was to attend the Job Net program in order to secure summer employment.
On June 29, 2010 Mr. Lee sent an e-mail to Probation Officer Griffiths introducing himself as the MST therapist assigned to Luis T. and his family. Mr. Lee's e-mail noted that Mr. T. had tested positive for marijuana the previous week and that Mr. Lee “will be doing the CM part of treatment with [him] and the family” and that he would “be creating a monitoring plan with the family to decrease any further chances of him to use” (Lee, e-mail, June 29, 2010, in court file).
July 2010:
Week 1: During the first week of July 2010, Mr. Lee visited respondent's home on July 6, 2010, July 7, 2010, and July 8, 2010. The weekly summary of July 9, 2010 states that both Ms. Bayona and Mr. Lee continued to have concerns about respondent's violations of his curfew, and that “Luis has recently tested positive for THC but recently tested negative” ( id. at 20). Mr. Lee was still attempting to implement a plan to monitor Luis around the clock. Respondent was not present when Mr. Lee visited the home on July 6, 2010 as Ms. Bayona had forgotten the exact time of the visit, and she had allowed respondent “to go to the park” with his cousin without any adult supervision ( id.). At the July 7, 2010 meeting, respondent tested negative for controlled substances and marijuana, the sole negative test reported in the case record. Mr. Lee indicated that the family would soon commence with contingency management based upon information provided which indicated that Mr. T. had been smoking at least one marijuana “blunt” daily for the past three years, and he was missing school and cutting classes regularly for at least a year. At the time of the July 9, 2010 weekly summary, Mr. Lee graded Ms. Bayona's engagement in the MST program as “7” out of a possible 10. According to Mr. Lee, “a monitoring plan was created with the family where during the times when mother is not home with Luis (8AM–8PM, MWF), Luis will be with his sister Cecily, or with his aunt. Mother will call sister or aunt to check in” ( id. at 23).
Respondent met with Probation Officer Griffith at her office for the first time on July 7, 2010. At the meeting, respondent advised Officer Griffith that he tested positive for marijuana. He told the probation officer that he is trying to stop smoking but that it is very difficult. Mr. T. also informed Officer Griffith that he was not attending summer school and he was trying to obtain a summer job through JJI. Officer Griffith referred Mr. T. to community service and she scheduled respondent's next meeting for July 21, 2010 (Probation Chronological Notes at 18).
Week 2: Mr. Lee arrived at respondent's residence at 7:30 P.M. on July 13, 2010 for a scheduled MST session, but neither respondent nor his mother were home. Ms. Bayona later told Mr. Lee that they had forgotten about the meeting and it was rescheduled for the following day. On July 14, 2010, Mr. Lee met with respondent, Ms. Bayona and Mr. Gonzales at their residence. Ms. Bayona informed Mr. Lee that “she was very concerned about Luis' curfew and stated he was breaking his curfew and hanging out with kids who are in trouble” ( id. at 25). Mr. Lee then proposed a curfew system which included “specific consequences for curfew infractions” and “a monitoring plan for when Luis is home and mother is at work” ( id.). The plan was for Luis to go to stay at his grandmother's home until his mother arrived home. According to Mr. Lee's notes, he tested respondent for drugs use and the result “was positive for THC” ( id.).
Another meeting was conducted at respondent's residence on July 15, 2010 and Mr. T., Ms. Bayona and Mr. Gonzales were present. Luis was not drug tested as he had tested positive for marijuana the previous day. According to Mr. Lee, “[t]he family stated that they were looking forward to trying something new with hope that Luis would show improvement in his behaviors” ( id.).
Mr. Lee's weekly summary for the period of July 8 through July 15, 2010 indicated the continued smoking of marijuana by Mr. T., three curfew violations during the week, and rated Ms. Bayona's engagement in MST ( i.e. “viability of caretaker”) to be 7 out of a possible 10. Mr. Lee's weekly summary noted that there was little monitoring of Mr. T. while his mother was working, and that there were “no effective consequences” attaching to failures to obey rules of MST, “only lecturing” ( id. at 28). Additionally, respondent and his associates all use marijuana, and Ms. Bayona “does not like, nor know” may of her son's friends ( id.).
With respect to the availability of other adults being asked to supervise Luis when Ms. Bayona was working, Mr. Lee noted that the maternal aunt was not amenable because she and Ms. Bayona were “involved in argument”, and Luis's older sister was also not amenable because she and Ms. Bayona “involved in argument” which resulted in Cecily temporarily going to live with the maternal aunt. Mr. Lee further observed that Ms. Bayona was not imposing consequences for rule violations, and that neither she nor Mr. Gonzales could keep track of respondent's whereabouts, so they just relied on respondent's representations ( id. at 28). Mr. Lee wrote that the respondent has “too much free time on his hands” and that he would just go out whenever his friends called him. Although not specified, it appeared that respondent's excursions usually involved smoking marijuana.
Mr. Lee's solutions for the issues presented were to “review rewards and consequences menu for the” contingency management, to have the family keep a log of Luis's adherence to curfew, and to have the family review the monitoring plan and utilize respondent's godmother to monitor his whereabouts ( id. at 28–29).
Week 3. During the week of July 20, 2010 through July 27, 2010, Mr. Lee met with Ms. Bayona at her home at 4:00 P.M. on July 20, 2010. According to Mr. Lee's notes, “[m]other stated that she had forgotten again about the meeting but was fine with having it. She stated that Luis was at Job Net at the moment and was not home. Mother stated that she was very concerned about Luis' curfew and that she did not see him making any positive changes ” ( id. at 31 [italics added] ). According to Mr. Lee's notes, he discussed “building a behavior plan that would allow mother to regain some of the control from Luis. Mother stated that she was concerned but that she was willing to try” ( id.).
Mr. Lee met with respondent, Ms. Bayona and Mr. Gonzales at the family residence again at 7:30 P.M. on July 21, 2010. According to Mr. Lee's notes, they discussed curfew infractions “and began working on building the behavior plan and rewards and consequences chart”. On July 22, 2010, Mr. Lee met with respondent and Ms. Bayona at their home at 7:30 P.M. Luis informed Mr. Lee “that he was robbed earlier in the day” and his watch and phone had been taken. Mr. Lee inquired about the circumstances, and he then “went through a day by day list of who needs to do what, and what needs to be done” ( id. at 31). Ms. Bayona told Mr. Lee that she would call in a police report the following day.
Mr. Lee's notes of the report of the “robbery” reflect that Mr. T. told Lee that he was with a friend near the friend's home in Brooklyn at about 4:00 P.M. The friend went into his house and Luis waited outside. At that point, “a car stopped on the road and a male stepped out of the car, showed a gun, and told [Luis] to give him all of his money. Luis stated that he did not have any money but that he had a watch and a phone and he handed it to the man. The man took it and told Luis to leave. Luis walked away and the man got back into his car and drove away” ( id. at 30). Mr. Lee does not appear to have inquired further about the circumstances, nor did he inquire about the reason respondent found himself in Brooklyn without adult supervision in the late afternoon on the date of the incident.
Mr. Lee wrote in his notes that the “monitoring plan” to be followed was that respondent was to be with his mother “unless [he] is going somewhere with an aunt, godmother, or stepfather”. When Ms. Bayona was at work, respondent “will go to his godmother's home” and that “Luis will not be allowed to leave the house unless he is with godmother.” When Ms. Bayona gets off from work, she will pick her son up at the godmother's home and Luis will then stay home with his mother ( id.).
Mr. Lee's summary for the week indicated that Mr. T. “missed one training session with Job Net” ( id. at 34), that there was a fair amount of “negativity in the home”, and that Ms. Bayona and Mr. Gonzales were very upset over Luis' repeated curfew violations. With respect to the plan to utilize Luis' maternal aunt as a monitoring resource, Mr. Lee observed that this lasted “for only one day”, apparently due to the argument between Ms. Bayona and her sister.
According to the case record kept by Officer Griffith, she made a visit to respondent's residence on July 20, 2010 but no one answered the door. Officer Griffith left a letter for the family to let them know that she had come by to visit with them.
CCNY Report to Probation. On July 21, 2010 Mr. Lee submitted the first monthly JJI report to the Department of Probation concerning Mr. T. for the period of June 21, 2010 through July 21, 2010. According to the report, “Luis and his family have fully participated with [CCNY's] MST/JJI program and have kept all scheduled appointments” (italics added), “Luis has been abiding by the court ordered curfew as reported by his mother, although mother has reported that Luis has been late on occasion by 15–30 minutes”, and that “Luis has received his community service location and will begin attending every Saturday.” Mr. Lee also reported that “Luis and his family have shown engagement in treatment as evidenced by their consistent attendance to sessions. Luis, [his] mother, and mother's boyfriend have been active in discussions during the meetings. Luis' sister has also taken part in sessions.”
Mr. Lee's report also indicated that Mr. T. had positive drug screening for marijuana on June 23, 2010 and July 14, 2010, and that there were times between the hours of 8:00 A.M. and 8:00 P.M. when Mr. T. was unsupervised by an adult. According to Mr. Lee, the family had identified adultsrespondent's maternal aunt and godmotherwho could supervise him when no other adult was available. The other part of the solution identified by Mr. Lee was to use contingency management “to identify triggers of treatment, develop self-management, and a point-level system to address the substance use” and to train Ms. Bayona how to administer urine tests to her son at home. Mr. Lee finally noted that the respondent had been signed up for the Job Net program as he was not attending summer school in 2010. Whether Mr. Lee's July 21, 2010 report to the probation officer accurately reflect the circumstances as recorded in his weekly notes can be ascertained by comparison of the notes and the report.
Officer Griffith met with Mr. T. at her office on July 21, 2010. The probation officer received the July 21, 2010 monthly report from CCNY prior to meeting with Mr. T. and she was aware of respondent's marijuana use and curfew violations. Mr. T. told his probation officer that he had received the letter that she had left at the home the day before, and that he was at job training at Job Net when she had come by. Notably, Officer Griffith recorded that respondent told her that he had no new arrests “ and he has not been smoking ” marijuana (Probation Chronological Notes at 18), which contradicted the CCNY report of July 21, 2010. Officer Griffith, who was aware that Mr. Lee was going to implement contingency management to address respondent's drug use, scheduled respondent's next probation meeting for August 4, 2010.
Week 4. According to the CCNY case record, Mr. Lee visited respondent's home on July 27, 2010 (4:00 P.M.), July 28, 2010 (7:30 P.M.), and July 29, 2010 (7:30 P.M.) this week. Mr. Lee's weekly summary dated July 30, 2010 reflects that respondent “was involved in an incident where he was robbed by another man. He was not injured.” According to the summary, Ms. Bayona informed Mr. Lee that she is concerned about her son as “he does not have good friends and that this creates a risk to Luis since the neighborhood is not safe.” Mr. Lee noted that “MST and the family have been working on a 24–7 monitoring plan to keep an eye on Luis.”
On July 26, 2010, Mr. Lee sent an e-mail to Jennifer Glover the JJI Program Director at CCNY concerning the incident where Mr. T. was the victim of a gun point robbery in Brooklyn at 4:00 P.M. on July 22, 2010, a time where he was obviously not under the care of the CCNY 24/7 adult monitoring plan the Mr. Lee had referred to in his case notes. Mr. Lee informed Ms. Glover that “[o]n the days that mother is not working (Tues, Thurs, Weekend), Luis will be with his mother unless going somewhere with an aunt, godmother, or step-father. On days where mother is working, Luis will go to his godmother's home. Mother will keep contact with godmother while she is at work. Luis will not be allowed to leave the house unless he is with godmother ... [m]other will then pick Luis up from godmother's home and bring him home. Luis will stay home with his mother.”
Mr. Lee's direct supervisor, Jennifer Vinces notified SPO Diana Comvalius of the July 22, 2010 robbery of the respondent by e-mail dated July 27, 2010. Probation Officer Griffith was copied on the e-mail sent by Ms. Vinces. The e-mail contained the details of the monitoring plan created by Mr. Lee designed to keep adult supervision over Mr. T. at all times. Apparently, the probation officers involved in the case relied upon the representations made by the JJI/MST personnel at CCNY.
Mr. Lee's weekly summary further states that at the July 27, 2010 MST counseling session, Ms. Bayona reported that “ Luis continues to break his curfew and that he does not listen to her ” (CCNY Record at 36 [italics added] ). Mr. Lee told Ms. Bayona that the plan was not working because “Luis did not have any consequences for his behaviors” ( id.). When Mr. Lee discussed imposing consequences for non-compliant behavior, Ms. Bayona indicated that “she was afraid of how Luis would react to it” ( id.). According to Mr. Lee's notes, he “discussed taking some of his things such as shoes or clothes instead of the phone to prevent Luis from going out since his main draw is the peers on the streets” ( id.).
Mr. T., his mother, and Mr. Gonzales met with Mr. Lee on July 28, 2010. At that MST session, Ms. Bayona noted some improvement in her son's adherence to curfew since the prior day and Mr. Lee insisted on imposing consequences for violations of curfew and respondent's mother and step-father “agreed to take his shoes and clothes as a consequence for his behaviors.” On the next day, July 2010, Mr. Lee reviewed the monitoring plan for Luis for the upcoming weekend. According to Mr. Lee's notes, “the family stated that they would be together all weekend and if Luis does not follow the plan they will hold onto his phone as well as his shoes” ( id. at 37). Mr. Lee's weekly summary stated that respondent's grandmother and maternal aunt were “social supports” available to implement the MST monitoring plan. However, there is no indication that respondent's grandmother was actively involved, and the previous notes reflected that Luis' aunt had not been speaking to his mother as a result of an argument they had.
While Mr. Lee's notes for this week do not specifically reference positive dug screens, his weekly summary states that “Luis was out with his friends and they went to a party. Luis was glad to be out and was having a good time. His friend had some marijuana and asked if Luis wanted some. Luis thought that it would be fun to do ... Luis smoked it with his friend and stated that he had a good time” ( id. at 39). Ms. Bayona told Mr. Lee that she “was unable to keep Luis at home as she told him that he could not go out, but he went out anyway [ ]” ( id.).
August 2010.
Week 1. The CCNY case record reflects that Mr. Lee made visits to the home of the respondent on August 2, 2010 (4:00 P.M.), August 3, 2010 (7:30 P.M.), August 4, 2010 (2:30 P.M.), and August 5, 2010 (7:30 P.M.). Apparently, only Ms. Bayona was present for the August 2, 2010 meeting. Mr. T., Ms Bayona, and Mr. Gonzales were present on August 3, 2010, only Ms. Bayona was present on August 4, 2010, and Mr. T., Cecily Bayona, Ms. Bayona, and Mr. Gonzales were present on August 5, 2010. Mr. Lee's weekly summary of August 6, 2010 indicates that both he and Ms. Bayona “are concerned about Luis' curfew violations as he is frequently out past his curfew ” (CCNY Record at 43 [italics added] ). Mr. Lee further noted that Mr. T. “ was arrested on 8/4/10 for failing to pay his train fare ” and that he appeared in Queens County Criminal Court and released with an ACD ( id. [italics added] ).
At the August 2, 2010 session, Mr. Lee again reviewed his 24/7 monitoring plan for Luis which included involvement by respondent's godmother. However, there is no indication that at that point in time Mr. Lee ever met with or spoke with respondent's godmother, maternal aunt, sister, or grandmother, all of whom had been identified as “social supports” at one time or another by Ms. Bayona, in order to ascertain their willingness to serve as a monitor for the teenage respondent.
At the August 3, 2010 session, Mr. Lee and Ms. Vinces were present and they again discussed the monitoring plan for Luis which Mr. Lee had devised. Mr. Lee's notes indicate that [t]he family stated that they were not comfortable with using consequences because they felt that it would not work effectively” ( id. at 43). At the August 4, 2010 session, Ms. Bayona informed Mr. Lee that respondent had been arrested and that he was at Central Booking. Mr. Lee discussed “finding different ways to talk with Luis and how to break the cycle of events that occurs” ( id. at 44).
On August 5, 2010, Mr. Lee met with Mr. T., Ms. Bayona, and Mr. Gonzales. Mr. T. told Mr. Lee that he entered the subway without paying because “he had used some of his train fare on food instead.” Mr. Lee “and the family reviewed the monitoring plan and worked to have the mother try to be stronger in stopping Luis from going out even if he does not want to listen to her. She stated that she has a hard time with this at times” ( id.). Although respondent had a lengthy history of spending time in the street and away from home, Mr. Lee “reminded mother that she can apply consequences such as removing his phone or even his shoes so that he cannot go out” ( id.).
A two hour meeting was conducted at the CCNY office on August 6, 2010. Mr. T., Ms. Bayona, Mr. Gonzales, Mr. Lee, Ms. Vinces, and Ms. Glover were present at this meeting.
The meeting addressed respondent's curfew violations, his arrest for fare beating, and his failure to stay home when directed by his mother. The terms of respondent's probation were reportedly reviewed and at the conclusion of the meeting, “[a] plan and contract was created that had Luis agree to comply with his terms of probation, as well as with his mother and other family member's roles in the contract” ( id.). At the end of the meeting, Mr. Lee accompanied the respondent, his mother and Mr. Gonzales to the Job Net office “to gather more information around when Luis will need to return. They asked him to return the following week” ( id.).
Mr. Lee had initially advised his supervisor, Jennifer Vinces, of respondent's fare beating arrest by e-mail on August 4, 2010. According to the e-mail, respondent had been arrested at the Sutphin Boulevard subway station about a half hour after he had left a meeting with Probation Officer Griffith at the Family Court agency building. Ms. Vinces forwarded Mr. Lee's e-mail to CCNY JJI director Jennifer Glover, to SPO Comvalius, and to Dr. Jeff Randall in South Carolina. On August 5, 2010, Mr. Lee sent a follow-up e-mail to Probation Officer Griffith advising that respondent had been granted an ACD and released from custody. The next day, Mr. Lee sent an e-mail to Officer Griffith inquiring whether respondent's arrest was reported on the state's “E–Justice” computer system. Officer Griffith advised Mr. Lee that the arrest was reported.
Mr. Lee's weekly report stated that respondent “has tested positive for THC”, that there were still concerns about respondent's violations of his curfew, that he had been robbed in Brooklyn in late July, and arrested for fare beating in early August, that respondent “stayed out overnight over the weekend. He stated that he stayed at his aunt's house” ( id. at 47),
and that he missed the August 2, 2010 MST session. Mr. Lee still reported the viability of the participation of the respondent and his mother in MST as “7” out of 10, and respondent's godmother and maternal grandmother were still listed as “social supports” available to supervise Luis. Again, there is no indication that Mr. Lee independently assessed the willingness or suitability of these adults, or respondent's sister, Cecily, or his maternal aunt to supervise him when Ms. Bayona was not available. These alternative adult supervisors, who were an integral part of the supervision plan developed by Mr. Lee, and reported to the department of probation, essentially amounted to little more than “phantom supervisors” throughout the period during which CCNY provided MST therapy to Luis T.
The notes of Probation Officer Griffith indicate that on this occasion respondent and his cousin arrived home at approximately 3:00 A.M. but respondent could not get into his apartment since Ms. Bayona was asleep. “He then went to his aunt's house (a few blocks away) since he was also with his cousin and stayed there overnight. Aunt was unaware until later in the morning since they both quietly snuck in” (Probation Chronological Notes, entry dated August 2, 2010, at 17/18 [in court file] ).
Officer Griffith's notes of August 4, 2010 reflect her supervision meeting with Mr. T. on August 4, 2010. The notes reflect that respondent discussed the gun point robbery in Brooklyn, and that respondent “admitted that he was not obeying his curfew and was counseled by JJI.” Officer Griffiths told Mr. T. “to stay off the streets [and] obey his curfew and stop smoking marijuana” and that if he failed to do so “he will be subject to more stricter sanctions” (Probation Chronological Notes at 16/18).
Week 2. During the following week, Mr. Lee visited respondent's home on August 10, 2010 (4:00 P.M.) and August 12, 2010 (6:30 P.M.). Mr. T., Cecily Bayona, and Ms. Bayona were present for the August 10, 2010 session, and Cecily Bayona, Ms. Bayona, and Mr. T. were present for the MST session on August 12, 2010.
According to the CCNY case record, on August 11, 2010, Mr. Lee received a telephone call from Ms. Bayona at 6:30 P.M. during which she reported that earlier that evening “Luis had gone to the store around 6–6:30 PM near his home. A man whom they claim they do not know entered the store and began assaulting Luis. The store owner (who knows Luis and his mother) grabbed Luis and held him behind the counter. The man fled. The store owner called mother to inform her. Mother called [Mr. Lee] and after she hung up, called the police and ambulance. [Mr. Lee] called back at around 7:30 P.M. and mother informed him that Luis was being taken to Jamaica Hospital in an ambulance with his adult sister because he had cuts and bruises and was complaining of headaches” (CCNY Record at 48–49). Later that evening, Mr. Lee received a telephone call from Ms. Bayona advising him that respondent had been seen at the hospital and had been released home.
According to Mr. Lee's weekly summary, at the August 10, 2010 MST session Ms. Bayona indicated that while “there had been some improvements in Luis's behaviors as he had been home early, [she] was concerned that Luis had still used marijuana” ( id. at 50). Mr. Lee again reiterated that “Luis was not supposed to be outside on his own”, but Mr. Lee seems to have made no connection between the respondent's lack of supervision, his abuse of marijuana, and the seemingly bizarre attack by a stranger at the local grocery store. Ms. Bayona also indicated that she still experienced difficulty in getting her son to remain home, and Mr. Lee observed that “Luis usually wants to go out when he feels that he needs space or he has cravings for marijuana” ( id.). At the August 12, 2010 session it was reported that “Luis had tried to go out and instead of following the same sequence of events, mother contacted [Mr. Lee] and they reviewed the behavior plan. The family followed this behavior plan and Luis did not go out, and instead went to the store later with his sister supervising him” ( id.).
Mr. Lee apparently considered the ability to keep respondent from going out against his mother's direction to be a monumental success.
It is unclear whether this was August 11, 2010, the day when Mr. T. had been assaulted by a reportedly unknown assailant at the local store.
Mr. Lee's summary also states that respondent actually did go out to the store once that week against his mother's directions, and that appears to be the day that respondent had been assaulted at the store. Additionally, Mr. T. admitted to smoking marijuana on 8/1/10” ( id. at 53), and that the instance where Ms. Bayona called Mr. Lee to keep respondent from going out was deemed to be a “goal advance[ ]”. Mr. Lee also noted several problems which persisted in the family such as the failure to impose consequences for non-compliant behaviors, the inability of the adults in the family to influence the respondent's behavior, and the fact that the family was “feeling overwhelmed and hopeless” ( id. at 54). With respect to the respondent, Mr. Lee wrote that he still acted impulsively and that he failed to appreciate the consequences of his behavior.
Week 3. During this week Mr. Lee visited respondent's residence on August 17, 2010 (4:00 P.M.), August 18, 2010 (7:30 P.M.), and August 19, 2010 (7:30 P.M.). Ms. Bayona and Cecily Bayona attended the August 17, 2010 session as respondent was apparently at the Job Net program. Ms. Bayona, Cecily Bayona, and Mr. T. were present for the MST sessions on August 18 and 19, 2010. Mr. Lee's weekly summary indicates that the family expressed concerns about the safety of their neighborhood in general. Ms. Bayona indicated that she planned to move in January 2011, but that she was concerned about her son's safety until they moved.
At the August 17, 2010 session, Ms. Bayona reported “some improvements” in adhering to curfew by respondent, but she noted that “he continues to go out without supervision” (CCNY Record at 56). She also stated that respondent was occasionally one to two hours late getting home, and that “she feels that he is still going out and still using marijuana” ( id.). According to Mr. Lee's notes, he “discussed with the mother the sequence of events that lead to the marijuana use [and] gave the mother some psycho education around marijuana and substance use and explained the addiction factor and this link to Luis's constant need to go outside” ( id.). While Ms. Bayona “understood and stated that she would continue trying ... she was getting more and more frustrated and tired of everything ” ( id.).
At the August 18, 2010 MST session, respondent admitted to smoking marijuana “a few days ago' “ and Mr. Lee encouraged respondent to write about his cravings for marijuana and desire to go out to use marijuana in a log in a written journal he had been directed to keep. At that session, Ms. Bayona informed Mr. Lee that she and Mr. Gonzales were having difficulties with their own relationship. The August 19, 2010 MST session began without Mr. T. who was apparently outside somewhere. Ms. Bayona informed Mr. Lee that she and Mr. Gonzales, who had the child Kaden in common, had decided to separate.
During this part of the session, Ms. Bayona attempted to contact respondent by cell phone but there was no answer. Ms. Bayona also called respondent's aunt and cousin but they did not know respondent's whereabouts. Eventually Ms. Bayona got hold of her son and he returned home at 9:00 P.M. Respondent indicated that he did not think that there would be an MST session because of the problems between his mother and Mr. Gonzales. Although Mr. T. had apparently been out in the streets without any adult supervision, Mr. Lee merely advised him that he needed to “keep contact with his mother and to be very clear with what he is doing” ( id. at 57). Given that Mr. T. had violated his curfew by returning home at 9:00 P.M., Mr. Lee reminded him that he needed to obey the curfew. Lastly, respondent told Mr. Lee that he had not been writing in his journal “because he didn't feel like it” ( id.).
Mr. Lee's weekly report again reported Ms. Bayona's level of involvement as “7 out of 10”, although she had expressed exasperation with controlling her son and notwithstanding the serious problems in her relationship with Mr. Gonzales, the father of her youngest child. For reasons which are not readily apparent, respondent's maternal grandmother and maternal aunt were listed as “social supports” along with respondent's godmother. It is still unclear what role, if any, these three adults played in supervising Mr. T. when his mother was unavailable. Mr. Lee observed that respondent continues to go out as he pleases and usually gets involved with friends on the street and winds up smoking marijuana. Ms. Bayona reported that she “feels fed up and hopeless” ( id. at 59–60).
Mr. Lee notified Officer Griffith of the August 11, 2010 assault upon Mr. T. at the store by e-mail dated August 13, 2010. Ms Vinces notified Jennifer Glover, Dr. Jeff Randall, SPO Donna Comvalius, and Probation Officer Smith of the assault by e-mail dated August 11, 2010. Mr. Lee sent an update to Officer Griffith by e-mail dated August 13, 2010. On August 16, 2010, Mr. Lee sent an e-mail to Officer Griffith stating, in pertinent part, that “[w]e're starting to see some improvements in his behaviors ” and inquiring whether respondent could perform some of his community service obligation during the week to keep him busy as he was not working or attending summer school. Notably, Mr. Lee's August 16, 2010 e-mail to Officer Griffith fails to specify exactly what “improvements in behavior” had been observed.
August 21, 2010 Report to Probation. Mr. Lee's report to the Department of Probation stated that “Luis and his family have fully participated ” with CCNY's JJI/MST program “ and have kept all scheduled appointments ” (italics added). Mr. Lee also reported that respondent had commenced his community service at King Park in Jamaica on Saturdays, although this is not indicated in Mr. Lee's notes in the CCNY record. Mr. Lee indicated that respondent's godmother had been identified as a resource to assist in supervising him, and that Luis and his family have continued to show engagement with the JJI program through consistent attendance to all sessions as well as active involvement in the development of behavior plans.” The report notes the incident in which Mr. T. was robbed at gun point in Brooklyn, and the incident where he was assaulted in a grocery store by “a stranger” in Jamaica during the month, as well as his arrest for fare beating. None of these three highly unusual events which occurred in close temporal proximity to each other, seemed to set off any alarms at CCNY or the probation department, and no applications requesting judicial intervention were brought before this Court
Mr. Lee's report states that an emergency meeting with CCNY staff, including supervisors, was conducted with respondent and his mother and that it was concluded that “[t]he main factors that appear to be contributing to these incidents are the supervision of Luis, as well as low control from mother to influence Luis's behaviors, and negative peer influences. Luis has also been returning home late for curfew on a daily basis.” Mr. Lee reported that CCNY JJI/MST staff had developed a “plan” to address these issues, including the fact that respondent had tested positively for marijuana on August 17, 2010. According to the report, the plan called for increased monitoring of respondent's whereabouts, greater supervision, creation of a weekly schedule for the respondent, enrollment in pro-social activities such as boxing, and the Job Net employment program. Mr. Lee reported that “[s]ince the emergency meeting, mother has reported that there has been an improvement in curfew abidance from Luis as well as an increased level of motivation to continue trying the different techniques (sic).” Insofar as respondent's drug usage was concerned, CCNY reported that they would continue their “contingency management” and drug testing to address respondent's addiction.
The entry in the probation record by Officer Griffith dated August 30, 2010 indicates that she received the August 21, 2010 monthly report from CCNY. While Officer Griffith acknowledged the incidents and problems in the report, no action was taken by the Department based, apparently on the representations made by CCNY, that they had the situation under control and a plan to deal with the problems at hand, as well as CCNY's report that “conditions were improving.”
Week 4. During the last full week of August, Mr. Lee visited respondent's home on August 24, 2010 (4:00 P.M.), August 25, 2010 (7:30 P.M.), and August 26, 2010 (7:30 P.M.). Ms. Bayona and Cecily Bayona were present on August 24, 2010, Cecily Bayona and Mr. T. were present on August 25, 2010, and Ms. Bayona and Mr. T. were present on August 26, 2010. Mr. Lee noted in his weekly summary that he “and the family continue to work on the monitoring plan of Luis to be sure that there is always a trusted adult to watch him. The main concern that the family has is that Luis is out past his curfew and no one knows where he is.” Mr. Lee was also attempting to work with Ms. Bayona to find additional methods of controlling the respondent in the home and to have “family supports to help her watch him” when he is outside of the home (CCNY Report at 61–62). The report again lists respondent's grandmother, aunt, and godmother as adults who would participate in supervision, however, there is still no indication whatsoever that these three adults were actually engaged or were willing to be engaged in supervising the respondent. None of these adults participated in any of the MST sessions, nor do they appear to have had any contact with Mr. Lee. There was apparently a need to list names on the report, so Mr. Lee simply put down whatever names were provided by Ms. Bayona ( id. at 65).
To be accurate, Mr. Lee's case record does reflect that Ms. Bayona was generally resistant to the idea of involving other adults, even relatives, in assisting her in supervising her son. Whether this was the result of interpersonal problems existing between the mother and her relatives, embarrassment, or a realization that her 16–year–old son would not accept being supervised by his grandmother, aunt, step-father, sister, or godmother, is not known. However, because the MST plan for Luis T. relied heavily on constant supervision, the failure to create a system of supervision left respondent free to continue to do whatever he wanted. While the plan devised by CCNY sought to hold the respondent “accountable” for his whereabouts and actions, the reality was that Luis was accountable to no one except himself.
According to Mr. Lee, the respondent was not present at the August 24, 2010 MST session because, according to Ms. Bayona, he was again at the Job Net program. It does not appear that this claim was investigated by Mr. Lee. Ms. Bayona reported that “she was still upset with the fact that Luis was still misbehaving” ( id. at 62). According to Mr. Lee, respondent's mother reported that during the week “they felt that Luis had stolen some items from a friend's house. Although Luis denies it, mother stated that she was certain that it was him” ( id.). Ms. Bayona reported “improvements in curfew”, and Mr. Lee indicated that “he would be contacting the family friends to hold a joint session to find supports” ( id.). Also, Ms. Bayona reported that she and Mr. Gonzales had resolved their personal issues and that he had returned to the home.
At the August 25, 2010 MST session Mr. Lee met with respondent and his sister. Mr. Lee discussed respondent's marijuana use with Mr. T., and discussed respondent's keeping of a written journal and a log of his cravings for marijuana. On August 26, 2010, Mr. Lee met with the respondent and his mother at the home. Mr. Lee discovered that respondent had made only one entry in his “cravings log” and one entry in his personal journal. According to Mr. Lee's notes, he “noticed that the family did not appear to be engaged and asked them about it. Mother stated that she was fed up and no longer wanted to talk about the same things. Luis also stated that he was annoyed and frustrated with all of the meetings and rules ” ( id. at 62 [italics added] ).
Mr. Lee wrote that one goal was for Mr. T. to “eliminate criminal behavior as evidence by no new arrest for stealing, for trespassing, as reported by probation, parent, therapist, and police reports” ( id. at 63). Mr. Lee reported that the level of participation for respondent's family dropped from a 7 to a 6 out of a possible 10 ( id. at 65), and that “[g]oals were not achieved as no sessions were held with Luis and family together. One session was with only mother and daughter (Luis was at training). One session was with mother and daughter as Luis missed session [a]nd one session was just with Luis and his sister as mother and [Mr. Gonzales] were late since mother had a job interview that pushed back her schedule” ( id.).
Even though Mr. Lee's weekly summary and his previous summaries and notes were full of identified problems concerning the respondent and his family, a supervisory comment entered at this point in the CCNY record merely directs Mr. Lee to contact the Job Net program “to get updates on how his behavior was in the program as this can provide more evidence as to what works for Luis in terms of structure and learning.”
The supervisor also inquired as to the plan for respondent to return to school the following week, and as to progress on the plan to enroll respondent into pro-social activities such as boxing ( id.). While the supervisor correctly observed that the more structure they have for respondent's time the better, the supervisor either failed to comprehend or ignored the frustration with the JJI/MST program which had been expressed by both Mr. T. and his mother.
The JJI staff at CCNY should have consulted Dr. Yanovsky's psychological evaluation of Mr. T. Dr. Yanovsky made specific findings concerning respondent's cognitive abilities and deficits and his ability to learn.
September 2010.
Week 1. During the week which began on August 31, 2010, Mr. Lee visited respondent's home on August 31, 2010 (4:00 P.M.), September 1, 2010 (7:30 P.M.), and September 2, 2010 (7:30 P.M.). Mr. T., Ms. Bayona, and Cecily Bayona were present for the August 31, 2010 session, the same individuals as well as Mr. Gonzales were present for the September 1, 2010 session and the September 2, 2010 session.
Mr. Lee's weekly summary dated September 3, 2010 states that “[t]here continues to be a safety concern ... since Luis continues to test positive for marijuana. The [therapist] continues to work with Luis on the Contingency Management plan [which] helps him identify his triggers, get a better understanding of his cravings, and helps the family learn ways to address these factors” (CCNY Record at 68). Mr. Lee also indicated that he was continuing to work with the family to increase monitoring of the respondent, including working with family supports, adults residing out of the home, to assist in the monitoring of Mr. T. Respondent's curfew violations appear to be a continuing problem, and Mr. Lee reported that he continued to work with Mr. T. on adhering to curfew, as well as assisting his mother in learning “different ways to keep him home” ( id.).
At the August 31, 2010 MST session Ms. Bayona and respondent told Mr. Lee “that they felt stuck and they felt that we kept discussing the same things. Mother stated that she was feeling discouraged because Luis's behaviors were not changing enough and that sessions were moving too slow” ( id.). Respondent and his mother were able to discuss each other's behavior and how it affected the other which was positive in terms if the MST therapy.
At the September 1, 2010 session Ms. Bayona and the respondent again discussed their actions and “the relationship strain that it causes in the home” ( id.). Mr. Lee discussed this in detail with respondent, who appeared to understand that if he were more responsible, that would help the situation with his mother. Mr. T. informed Mr. Lee that he had successfully completed his training at the Job Net program, and he showed his journal in which he had apparently made some entries. According to Mr. Lee, he “let the family know that he believes that he had not done a good enough job of assessing the family needs and had different ideas for the following week to address the engagement issues with the family. The family stated that they felt like treatment was not progressing as they had hoped and [Mr. Lee] stated that he would continue to assess this with the family ...” ( id.). Mr. Lee's weekly summary noted that Mr. T. “continues to admit marijuana use” ( id . at 71), and that he observed increased communication between respondent and Ms. Bayona.
The weekly report continued to identify respondent's grandmother, maternal aunt, and godmother as available adult supervision resources. According to Mr. Lee's report, he contacted the godmother, Jenny Rosado, to invite her to an MST session. Ms. Rosado said that she would check her schedule and get back to Mr. Lee, but she never did so. Mr. Lee's weekly report rated the level of engagement for the family for this week at “6” out of a possible 10. Moreover, Mr. Lee wrote that he planned to have a joint meeting with Probation Officer Griffith “to address Luis's substance use” and that he and the family would review respondent's “school attendance plan” ( id. at 72). A supervisor's note entered in the record following the weekly summary states that “[a]t this point the Department of Probation and our team is concerned over Luis' high level of use of marijuana. Please complete a FIT (sic) of why the CM [Contingency Management] is ineffective for this youth and family.
Luis presents to need a higher level of care for his substance abuse although he can still benefit from the CM. There is evidence that Luis responds well to structure and a program may be a better fit for him and assist with deteriorating engagement” ( id. at 72).
FIT stands for “Family Integrated Transitions” and it is an adaptation of the MST treatment model “that is specifically designed to address problems such as mental illness, substance abuse, and youth/family engagement” (OCFS MST Report at xi). “FIT uses Motivational Enhancement Therapy (MET) to increase motivation to change and receptivity to treatment” ( id.).
Entries at this point in the CCNY Record state observations such as “mother does not feel heard; mother is not seeing changes she would like to see; mother feels blamed; mother is overwhelmed; Luis does not like all the rules; decrease in engagement; and mother has not reached out to supports” (CCNY Record at 72–73).
Week 2. A joint meeting conducted by Probation Officer Griffith and Mr. Lee took place at the Probation Department office on September 7, 2010. Mr. Lee, Officer Griffith, Mr. T., Ms. Bayona, and Cecily Bayona attended the session. According to the probation department chronological notes, Officer Griffith was well aware of the circumstances of the case and she “addressed the respondent not obeying his 6PM curfew, still testing positive for marijuana after being with JJI for 3 months, being arrested for not paying his train fare, and P.O. concerns for his safety [after] being rob[bed] once and assaulted once (Probation Chronological Notes at 14/18).
According to Officer Griffith's notes, she asked Mr. T. why he continued to smoke marijuana, and respondent told her that he was still “associating with negative friends and being unable to refrain from marijuana” ( id.). Mr. T. also informed Officer Griffith that “he has a 19 year old girlfriend whom he has been staying at home late in the night and not obeying his mother's commands or curfew.” Ms. Bayona told Officer Griffith that respondent “came home this morning 9/7/10 at 3:00 A.M. Mother reported that she told the respondent to be home early last night, but he did not come in, she was unable to sleep. She sent him a text message through AIM telling him to come home.” Ms. Bayona also stated that her son “was not obeying his curfew”, and although there had been some recent improvement in that regard, “he has started not to obey it again” ( id.).
Mr. Lee “stated that respondent has been up and down with respect to curfew, but he still test positive for marijuana” ( id.). Officer Griffith's notes conclude that probation would conduct an administrative hearing on September 21, 2010 “if there is no improvement or advance if any more infractions.” Officer Griffith also wrote that Mr. T. should attend school without cutting classes or being suspended, and that he should report to community service as directed. Officer Griffith had a follow up meeting with Mr. T. on September 8, 2010. At that meeting respondent told Officer Griffith that he had attended school today, and she told him that his assigned school. Thomas Edison High School is a very good school. She also provided Mr. T. with a referral to Daytop for substance abuse treatment “due to him attending JJI and still testing positive for marijuana for three months.” Apparently nothing within the knowledge of the probation department was significant enough to have a violation of probation petition filed, although there were clearly multiple reoccurring violations of the conditions of probation.
During the second week of September Mr. Lee visited respondent's home on September 8, 2010 (7:30 P.M.) and September 9, 2010 (7:30 P.M.). Mr. T., Ms. Bayona, Cecily Bayona, and Mr. Gonzales were present for the meeting on September 8th, and Mr. T. and Cecily were present for the session on September 9th. At the September 8, 2010 session, Mr. Lee discussed school attendance and performance for the new school year and he discussed truancy and behavioral issues in the school setting as well. Mr. Lee reiterated that Probation Officer Griffith would be locating an outpatient drug treatment program for respondent and it was stressed that the probation officer might take action if respondent continued to violate the conditions of probation.
Ms. Bayona did not attend the September 9, 2010 MST session. Mr. Lee discussed curfew and school attendance with respondent and his sister, and “Luis stated that curfew abidance and marijuana use would be the most difficult for him” (CCNY Record at 75). Mr. Lee also reminded Mr. T. that he needed to work on his community service and that if he did so, he would be entitled to a later curfew. According to Mr. Lee's notes, he and respondent talked about waking up in the morning to prepare for school and community service and worked on creating structure through using his [cell] phone calendar planner as well as using phone reminders as alarms. [Mr. Lee] and Luis set this up during session. [Mr. Lee] asked Luis to ask mother to call him when she returned home. She did not which is a concern about the engagement that mother has with treatment” ( id.).
The unanswered question is how Mr. Lee could possibly have allowed himself to believe that respondent would get up in time for school, attend school and his classes, do his homework, report to community service, and follow directions. This is especially troubling given that Mr. T. stated at the September 9, 2010 session that there was little chance he would stop smoking marijuana and little chance that he would obey his curfew. Surely, there was little in the history of the case to suggest that respondent could suddenly change his behavior in any meaningful way.
Mr. Lee's weekly summary listed the same adults as family supports, and he rated the family's current level of engagement in MST at “5” out of a possible 10. Mr. Lee noted that Ms. Bayona was late for the September 8, 2010 session and that she did not attend the session on September 9, 2010. Mr. Lee stated that the plan for the school was to have Ms. Bayona and Mr. Gonzales accompany respondent to school on the first day of the school year, and that he would work on a plan with the family to ensure that respondent got to school each morning.
Mr. Lee noted that at the September 7, 2010 session at the probation office, “[t]he PO threatened a violation of probation and stated she was not pleased with many things especially his substance use ” ( id. at 78). Mr. Lee wrote that during the week, “the family spent time working on engagement through allowing mother to express her thoughts and ideas as well as Luis's ... [m]other has opened up more and was more talkative, but still appears to be wary” ( id.).
Mr. Lee's notes reflect that he planned to “hold caregiver session to build on engagement with mother and [Mr. Gonzales] ... [a report] will be completed on what their issues are with Luis's behaviors”. Mr. Lee also planned to “obtain better understanding of family relationship with godmother, and will contact godmother and aunt over the phone with mother to invite them to a session ... [f]amily will complete school attendance plan” ( id. at 78–79).
On September 9, 2010 Mr. Lee and Officer Griffith exchanged e-mails about the plan to have respondent enroll in Daytop for drug treatment. Mr. Lee indicated that his experience in working with Daytop on a prior JJI/MST case was unsatisfactory, and that Ms. Bayona and Mr. Gonzales “do not like the the program” and wanted Luis to go to another program. Officer Griffith was reasonable and she replied that respondent could attend a different program (JFC), but reiterated that respondent “has to attend a drug program.”
An entry in the CCNY record left by an unidentified staff member states that Mr. Lee called the colleague on or about Sunday, September 11, 2010, and the staff member then spoke with Ms. Bayona by telephone. Ms. Bayona “stated that Saturday afternoon at around 3 to 4 PM as she left the house to go shopping, Luis was left at the home. He left the house after she had left and did not return home. According to Ms. Bayona she had attempted [AIMing] him and it looked like he was offline, but around 4 am he responded to her AIM and reported that he was at his aunt's house which mother recognized was a lie. He then only responded to her at 9am where he stated he was at community service but has not returned home since. The last physical contact was at his grandmother's house Saturday afternoon ... [m]other stated that grandmother saw Luis arrive at her house high and wanting to eat ... [a]t this time mother is trying to get exact timeline from her nephew and others as to be able to track Luis down ... she is trying to track down if he went to Bronx with the older brother” ( id. at 79).Week 3. A “planning conference” was conducted at respondent's home on September 14, 2010, however, Mr. T. failed to attend as he was allegedly playing basketball at school (CCNY Record at 82). Ms. Bayona, Cecily Bayona, Mr. Lee, and ACS Family Team Conference Specialist, Cheryl Scantlebury, attended the meeting. According to Mr. Lee's notes, Ms. Bayona reported that respondent's school had called her that day as well as the day before to report that respondent was not in attendance. Ms. Bayona later discovered school work for the previous day in her son's bookbag, and she assumed that he simply arrived late for school on September 13th. Additionally, “Ms. Bayona also stated that she was unsure what time the child's classes started and finished” ( id.), so Mr. Lee recommended that he and Ms. Bayona schedule a meeting with respondent's guidance counselor.
Luis's violation of curfew the prior weekend was discussed, and according to Mr. Lee he believed that respondent was marking his last weekend prior to the commencement of school by staying out all night without keeping in contact with his mother ( id.). Apparently, under the MST system, disappearing for an entire weekend, failing to maintain contact with a parent, and most likely engaging in drug usage, did not constitute a significant event.
Mr. Lee also noted that Officer Griffith had not informed CCNY what action the probation department intended to take with respect to respondent's staying out all night, and that he and respondent “also discussed fulfilling his community service [but] Ms. Bayona informed him that Luis did not report this weekend” ( id.).
Ms. Bayona told Mr. Lee that her son “had too much free time and required more activity; he is hanging around bad influences (like his older brother Eddie) ... she also believes Luis is smoking marijuana” ( id. at 82–83). Mr. Lee indicated that he was searching for a drug treatment program for the respondent, and he “also encouraged Ms. Bayona to continue to withdraw privileges” for non-compliant behavior. “ Ms. Bayona also stated, if necessary, she is willing for Luis to be locked up again if it will save him. She felt the 3 months that he was locked up before was not sufficient ” ( id. at 83 [italics added] ).
While the probation officer had most likely informed Mr. Lee that respondent had not been appearing for his community service, this is a curious entry given that the CCNY record does not indicate that Mr. Lee has previously discussed community service with the respondent. Community service was being arranged for and monitored by Officer Griffith not the MST staff at CCNY.
At the conclusion of the meeting/MST session on September 13, 2010, the ACS Family Team Conference Specialist and Mr. Lee had a conversation about the case. According to Mr. Lee's notes, Ms. Scantlebury “ discussed the implications of writing a letter to the judge reporting Luis' lack of community service, smoking marijuana, curfew breaking, weekend disappearances, and school latenesses ” (CCNY Record at 83). This comment is consistent with the probation department's policy for handling parental complaints in probation cases and is also consistent with the interagency agreements which seek to limit the flow of negative information to a judge who might institute unwanted enforcement in a JJI/MST case, where a premature termination of a juvenile from the JJI program might prevent that case from being deemed to have been successfully concluded.
During the 3rd week of September, Mr. Lee conducted an MST session at the residence of the respondent on September 15, 2010 (7:30 P.M.). Mr. T., his mother, Cecily Bayona, and Mr. Gonzales were present for the MST session held on September 15, 2010. Ms. Bayona and Mr. Gonzales arrived late, so Mr. Lee spoke with Mr. T. about the previous weekend where he stayed out all night in violation of his curfew and against the wishes of his mother. Mr. Lee's notes reflect that respondent “would not give a straight answer [and] he kept saying that he forgot what he did over the [previous] weekend” (CCNY Record at 86 [italics added] ). Mr. Lee also noted that respondent “told 4–5 different stories to the therapist of what happened [but] none of the stories made sense” ( id.).
It appears that the JJI/MST staff at CCNY believed that they had no obligation to ensure that the respondent was complying with the Court's conditions of probation. According to Mr. Lee's notes, he “let Luis know that he had already spoken with mother about the weekend, and he let Luis know that he felt Luis did not trust the therapist and reminded Luis that he was not there to get Luis in more trouble, but to try to help him ” ( id. [italics added] ). Mr. Lee then “decided that he could not gather adequate information about the weekend without mother being present since Luis kept lying about it ” ( id.). After Ms. Bayona and Mr. Gonzales returned home, Mr. Lee discussed what he had already discussed with Luis. Mr. Lee administered a urinalysis test and “[t]he drug test was positive for marijuana” ( id.). It does not appear that Mr. Lee ever received a truthful account of what happened the prior weekend from the respondent, and the matter was not pursued. Although Mr. Lee understood that Mr. T. was lying to him, he took pains to reassure him that he was there to help him, not to get him into further trouble.
Mr. Lee's weekly summary stated that he “has been working with Luis and his family to try to get a better hold on the curfew abidance and Luis's substance use since they seem to be linked.[Mr. Lee] has been working with mother to rebuild engagement into treatment in order to develop a behavior plan that she can follow since plans in the past did not work well and since she was really not bought into them (sic)” ( id. at 84–85). Mr. Lee observed that Ms. Bayona's “engagement in treatment is low” at this time ( id. at 85), and he rated her viability as a “5” out of a possible 10. Mr. Lee focused on respondent's drug abuse as respondent “has a history of substance use and is likely to continue to use outside of the home ” ( id. [italics added] ). Mr. Lee noted that respondent's drug abuse would continue to be addressed through contingency management and through the outpatient drug treatment program which Officer Griffith was in the process of locating.
A comment typed by Mr. Lee's supervisor seemingly overlooks the events of the weekrespondent violated curfew and ignored his mother when he stayed out all night from 4:00 P.M. on September 11, 2010 until 9:00 P.M. on September 12, 2010. During that time, it was not ascertained whether respondent was spending time with a girlfriend, neighborhood friends, or his older half-brother in the Bronx. The supervisor did not discuss the fact that Mr. T. showed up at his grandmother's home “high”, and that he once again tested positive for marijuana or that Mr. Lee concluded that Mr. T. was lying to him about the weekend disappearance. Instead, the supervisor focused on the fact that Ms. Bayona was not utilizing “social supports” outside of the immediate family, although there is no indication that the grandmother, maternal aunt, or godmother were ever going to become active participants in supervising respondent when the mother was working or otherwise not available. The supervisor wrote that Mr. Lee should work on getting Ms. Bayona to “buy-in” to idea of using “social supports”, and she thought that “[p]erhaps a contract can be drafted so that the family can see that there can be a step-down in treatment and what the goals would look like” ( id. at 89–90).
Apparently, the thought of requesting that respondent be discharged from the JJI/MST program did not cross the mind of any of the staff at CCNY. Similarly, it appears that no one considered requesting judicial action to attempt to compel Mr. T. to comply with the JJI/MST program, as had been ordered at disposition. Instead, the JJI/MST staff continued to search for new avenues to engage in negotiations with Mr. T. who continued to do as he pleased, even after three months of attempts to engage him in therapy. With respect to Ms. Bayona, CCNY was focused on getting her to “buy into” MST which if successful would quiet her complaints about her son and his lack of progress in MST.
Week 4. During this week Mr. Lee visited respondent's residence on September 21, 2010 (4:00 P.M.), September 22, 2010 (7:30 P.M.), and September 23, 2010 (7:30 P.M.). Ms. Bayona was the only family member present at the MST session conducted on September 21, 2010. Mr. Lee's notes do not make any reference to the whereabouts of Mr. T. or other members of the family that day. According to the CCNY record, Mr. Lee informed Ms. Bayona that a social work intern working with CCNY would be assisting Mr. Lee in providing services to respondent, with the intern's emphasis being on continuing substance abuse. Most of the discussion then concerned Ms. Bayona's availability to attend MST sessions.
On September 22, 2010 Mr. Lee and the social work intern met with respondent and his older sister Cecily. Ms. Bayona did not appear for the MST session, and she called the home 30 minutes into the session to report that she “was stuck at the grocery store” and would not make it home in time to participate in the MST. The respondent met the social work intern and her role in working with him was explained. Respondent told Mr. Lee that he had been attending school regularly with no problems, although he reported that he was occasionally late getting to school in the morning. Mr. T. told Mr. Lee that he had forgotten to write anything in his journal over the past week, and that he had also “forgotten to go to community service over the [past] weekend.” In order to address the missed community service, Mr. Lee assisted respondent in setting his alarm for an earlier time and had respondent agree to go to bed earlier on Friday night so that he would wake up on time for community service on Saturday.
Mr. Lee met with Mr. T. and Ms. Bayona on September 23, 2010. Mr. Lee and Ms. Bayona agreed to conduct future MST sessions at 4:30 P.M. because Ms. Bayona was finding it difficult to have sessions at 7:30 P.M. on her days off from work as she is busy with personal errands on those days. Mr. Lee discussed the plans for respondent's substance abuse treatment and the role that the social work intern would play in that. According to Mr. Lee's notes, both he and Ms. Bayona were “pleased to see that Luis is returning home earlier and making better decisions while out in the community, but they are still very concerned about his substance use as he continues to test positive for substances” (CCNY Record at 94). The plan to address respondent's drug abuse was to have him meet with the social work intern once per week, as well as for respondent to attend the substance abuse rehabilitation program that Officer Griffith was locating for him.
According to Mr. Lee, he was continuing to work with the family “to build on structure in Luis's weekly schedule as well as building a consequence plan for Luis in order to influence his behaviors” ( id. at 98). Mr. Lee and the family were also seeking to identify “pro-social” activities in which respondent might participate. Mr. Lee's weekly report rated Ms. Bayona's engagement in the MST program as a “5” out of a possible 10, and the same adults were listed as “social supports” to assist Ms. Bayona in supervising the respondent. It was noted that with respect to these “social supports”, Ms. Bayona told Mr. Lee “that the family supports would not work since she did not want to burden them [grandmother, aunt, and godmother] with too many roles, and also she did not feel that she needed to speak to people about her problems” ( id.).
By this point in time, it must have been apparent to Mr. Lee that the around the clock monitoring of respondent was not possible, both because the identified “social supports' were either not available or willing, and especially because Luis would never allow himself to be monitored constantly. This change of circumstances does not appear to have been reported to the probation department and it was never reported to the Court.
Ms. Bayona suggested some consequences for non-compliant behavior such as “removing his new clothes, withholding money[ ], and not cooking snacks for him”, and she also told Mr. Lee that she would devise additional consequences and she would contact the Job Net program to establish communication with them about her son. The end note placed in the record by Mr. Lee's supervisor indicated that the supervisor found “ “[g]reat advances on potential consequences to be used by [mother] with Luis” ( id. at 99). The supervisor expressed concern about the lack of involvement by the “social supports”, although it was noted that Ms. Bayona was receptive to idea of outside assistance such as that offered by the social work intern, school staff, pro-social activity” ( id.). However, nothing in the agency's record reflects that staff at respondent's school was intimately involved with the family, and respondent does not seem to have been involved in “pro-social” activities.
September 21, 2010 Report to Probation. CCNY submitted its monthly report to Probation Officer Griffith on September 21, 2010. According to CCNY, respondent “fully participated with TCCNY's MST/JJI program and has kept all scheduled appointments.” Mr. Lee's notes however indicated that Mr. T. was not present for MST sessions on August 24, 2010 and September 21, 2010. CCNY also reported that “Luis has begun his community service at Rufus King Park on Saturdays”, yet Mr. Lee's notes indicated that Mr. T. was not regularly appearing to perform his community service and that Mr. Lee specifically addressed respondent's need to get up on time on Saturdays for community service.
The monthly report stated that Ms. Bayona had a network of “social supports” available to assist her in supervising respondent. However, the CCNY case record contains no evidence that any adult, such as “a close family friend”, respondent's grandmother, maternal aunt, or godmother were actually involved in the MST or that they were able and willing to assist in such supervision. While the record reflects that respondent casually interacted with his aunt and grandmother, it does not appear that they sought to control or supervise him in any way. The record also indicates that Ms. Bayona had previously informed Mr. Lee that she was reluctant to seek help even from those she was close with.
While the September 21, 2010 report again states that Mr. T. had successfully completed the Job Net program, that was several months earlier, and the CCNY case record does not indicate that Mr. T. did anything with the Job Net training, such as obtain parttime employment to occupy his spare time. CCNY reported “improvements” in respondent's behaviors, while at the same time CCNY reported continued violations of curfew, including significant violations involving staying out all night and failing to communicate with Ms. Bayona. CCNY also reported a continuing problem involving respondent's abuse of marijuana. There is no indication that Mr. T. had a clean screening in the month between August 21, 2010 and September 21, 2010, and his marijuana abuse continued unabated.
CCNY reported that Ms. Bayona “has had a difficult time supervising Luis as she is unable to influence his behaviors.” While CCNY reported a significant lack of structure in Mr. T.'s daily routine, CCNY reported that Mr. Lee “has been working with the family to create more structure in the home and in Luis's daily routine.” None of these efforts are specifically identified in the report, and this is after three months of working with Mr. T. and his family, with particular emphasis having been placed on creating structure and supervision for Luis.
The case record contains several entries which reflect that Ms. Bayona was unable to control her son. She was unable to keep him under supervision or to obey his curfew or to stop smoking marijuana. She also demonstrated that she could not effectively impose “consequences” for respondent's non-compliant behavior, an essential component of the MST treatment system. Nevertheless, CCNY reported that they “were working with Luis's mother to increase her skills to supervise Luis's behaviors ... and [have] identified some supports that the mother will be able to use to help her with her monitoring of Luis when she is unable [to].” CCNY reported that Mr. Lee had contacted the support persons to involve them in MST and to invite them to a joint meeting. The record however demonstrates that after three months, Mr. Lee had no success in engaging respondent's grandmother, maternal aunt, or his godmother.
Despite the positive outlook which the report inexplicably refers to as “improvements”, the monthly report pointed out that Ms. Bayona had become frustrated with the MST process and with her inability to influence and change her son's misbehavior. CCNY reported that respondent lied to his mother and Mr. Lee about his weekend disappearance on September 11, 2010 and he continued to test positively for marijuana usage which led Officer Griffith to begin to locate an out-patient substance abuse program for respondent. The September 21, 2010 report barely mentions respondent's school attendance or academic performance, merely noting that the school recorded him as arriving late on several occasions.
Apparently, CCNY had no workable plan to address respondent's school problems, which is not surprising as the JJI/MST staff were unable to even get him to observe a curfew or to stop abusing marijuana. The only positive accomplishment was the completion of the Job Net program, but Mr. T. had not obtained employment since he finished the program. Mr. T. continued to violate his curfew fairly constantly and he also failed to undertake efforts to complete his community service, because he stayed up too late on Friday nights and was unable to get up on time on Saturday morning.
Officer Griffith's notes indicate that she visited respondent's school on September 21, 2010 and was told by school officials that Luis T. “was absent 4 days since school started”
(Probation Chronological Notes at 13/18).
Officer Griffith's notes indicate that on October 1, 2010 she contacted the official at the New York City Department of Parks who was responsible for supervising respondent's community service. Officer Griffith was advised that “[r]espondent completed 15 hours as of 9/18/10 [and] he was last there 8/8/10” (Probation Chronological Notes at 13/18). Officer Griffith conveyed this information to Mr. Lee by e-mail dated October 1, 2010.
The plan reported to probation by CCNY was the same as before: work with Ms. Bayona to create structure in a home where there had never been much structure and to develop a plan of consequences for respondent's ongoing non-compliant behavior which showed no sign of abating. CCNY also touted a plan of encouraging Ms. Bayona to utilize “social supports” who were supports in name only, and to locate activities to occupy Mr. T. such as Job Net and the boxing club.” Additionally, CCNY reported that the social work intern would continue to work with Mr. T. on his substance abuse issues, although previous efforts in that regard proved completely futile.
Week 5. During the week beginning on September 28, 2010, Mr. Lee conducted MST sessions at respondent's home on September 28, 2010 (4:00 P.M.) and September 30, 2010 (3:30 P.M.). Ms. Bayona was the sole participant at the September 28th session, and Ms. Bayona and Mr. T. were present for the session conducted on September 30, 2010.
On September 27, 2010, the day prior to the MST session at respondent's home, Mr. Lee sent an e-mail to his supervisor, Jennifer Vinces, reporting that he had received a telephone call from Ms. Bayona. According to the e-mail, Ms. Bayona informed Mr. Lee that her son had been out all weekend without her permission “from Friday night to early Sunday morning (around 6AM).” After respondent was home Ms. Bayona administered a drug test which she reported was “positive for THC and BZO” (marijuana and benzodiazepine).
While Ms. Bayona and respondent were in touch through instant messaging over the weekend, he would not give his mother any details concerning his whereabouts over the weekend. Mr. Lee advised Ms. Vinces that both Ms. Bayona and Mr. T. were looking forward to meeting with him the following day, and Ms. Bayona “ also asked that the administrative hearing happen ASAP as she cannot wait another week before something is done ' “ (italics added). Unfortunately, Ms. Bayona's plea for outside help to control Luis fell on ears which only heard the words of the JJI/MST protocol and the protocol did not include having the probation department initiate violation proceedings.
Mr. T. was most likely abusing Xanax, a prescription tranquilizer which is a benzodiazepine.
In an e-mail dated September 28, 2010 which Ms. Vinces sent to SPO Comvalius and CCNY expert consultant, Dr. Jeff Randall, which was copied to Jennifer Glover, the CCNY JJI Director, Officer Griffith, and Mr. Lee, Ms. Vinces reported that she and Mr. Lee had a “conference call” and that “the plan that has been developed is to further assess” respondent's disappearance and drug use over the weekend “along with building on the engagement with Ms. Bayona as this will interfere with applying different interventions if she is not on board.” Ms. Vinces noted that the social work intern “will target more aggressively the Contingency Management with Luis”, and that the JJI staff was to work on locating pro-social activity for the respondent. In addition, as Ms. Bayona “has displayed strength in being able to investigate situations and find out information so that now we need to assist in using this information to poison' negative peer associations and locations where Luis is going ” (italics added). Ms. Vinces wrote that there would also be “further consultation” with Dr. Randall and that there would be additional plans made.
Although Mr. T. had told Mr. Lee that he wished to speak to him, respondent did not attend the September 28, 2010 MST session. Mr. Lee spoke with Ms. Bayona and she told him that her son was not home all weekend and that he tested positive for marijuana and tranquilizers after he finally came home. While respondent had kept in touch with Ms. Bayona over the weekend, he would not discuss where he was, who he was with, or what he was doing. All Ms. Bayona knew was that her son had a positive urinalysis for drugs. During the weekend, Ms. Bayona had contacted some of her son's cousins to locate him and she was told that “he was at a party, and that he was with one of his friends who they knew popped pills.” Mr. Lee informed Ms. Bayona that CCNY “had some plans” which included “that Luis attend the drug treatment program, and also speak with the social work intern who will work directly with the substance use since both [Mr. Lee] and mother agreed was the main issue” (CCNY Record at 103). Mr. Lee told Ms. Bayona that the agency's plan was “to reduce Luis's time with negative peers, increase time with pro-social activities, and apply consequences in the home” ( id.). These so-called interventions had been previously attempted over the past several months with no success. Mr. Lee ran into the respondent as he was heading to his car after the session, and Mr. T. told Mr. Lee that “he was doing fine.”
Ms. Glover sent an e-mail to Dr. Randall on September 28th asking “[i]s there any other area that we should attempt to target or provide another strategy as I am very concerned over this kid's safety due to his heavy use of marijuana as Luis during treatment has been held at gun point, rearrested, jumped, and now he is using Benzos?”. It appears that Jennifer Vinces had a telephone conference with Dr. Randall as she wrote to Mr. Lee on September 30th that “I conferenced with Jeff last night and thought that our current plans were fine. He had nothing else to add.”
Mr. Lee conducted another MST session with respondent and Ms. Bayona on September 30, 2010. The events of the weekend were discussed, including respondent's failure to come home and his use of marijuana and benzodiazepine. Mr. T. told Mr. Lee that “he knows he made a mistake and understood that there were consequences for his behaviors. He was afraid that he would be sent away and stated that he would do better” (CCNY Record at 103). The record also reflects that Mr. Lee showed Ms. Bayona how to check her son's school attendance online.
In his weekly summary, Mr. Lee wrote that while Mr. T.'s compliance with his curfew during the weekdays had improved, “his weekend curfew infractions are a safety concern since he is not being monitored, and [his] substance use has been worsening” ( id. at 106). The note made by Mr. Lee's supervisor indicated that since Ms. Bayona was adept at gathering information from her son about his curfew violations and drug use, the agency should assist Ms. Bayona “in poisoning safe houses” (sic), apparently as a way to get him to stop going out of the home to smoke marijuana. The supervisor also stressed that respondent should be enrolled in “pro-social activities”, and that contingency management be “followed rigorously”. It appears that probation's plan to enroll respondent in an outpatient drug treatment program that was not affiliated with CCNY was not a topic for discussion by the agency JJI staff. Regardless of the number and severity of violations, the remedy proposed by CCNY JJI staff and apparently the MST specialist, was to simply give more MST therapy to the respondent and his family. The thought that JJI/MST was not working, and would never work, with Mr. T. does not appear to have crossed anyone's mind.
October 2010.
Week 1. During the week including October 5, 2010, Mr. Lee conducted MST sessions at respondent's home on October 5, 2010 (4:00 PM), October 6, 2010 (7:30 P.M.), and October 7, 2010 (9:30A.M.). Ms. Bayona and Mr. T. participated in the October 5, 2010 session, only Mr. T. was present for the MST session on October 6, 2010, and the session conducted on October 7, 2010 was the Administrative Hearing conducted at the offices of the Department of Probation.
According to Mr. Lee's notes, both he and Ms. Bayona “continue to be concerned about Luis's substance use and curfew infractions which pose a safety risk since he is out very late as well as using marijuana frequently” (CCNY Record at 117). Mr. Lee also noted that the family had an intake appointment at the Jamaica Family Center for substance abuse treatment for the respondent scheduled for October 14, 2010, and that Mr. T. “will also be receiving weekly drug treatment from the social work intern who will be completing the Contingency Management plan which will build on rewards and incentives for clean drug tests, as well as understanding cravings and triggers to use” ( id.).
The record also reflects that Mr. Lee and Ms. Bayona “have also been building on increasing the monitoring in the home through the use of monitoring plans, creating structured weekly schedules for Luis and also building on helping mother apply consequences to Luis for negative behaviors.” Mr. Lee wrote that the Administrative Hearing was conducted on October 7, 2010 at the Department of Probation and that “[a] contract was signed stating that Luis would comply with these behaviors” ( id.).
At the session conducted on October 5, 2010, Mr. Lee was advised that Mr. T. violated curfew on both nights of the past weekend, and Mr. Lee then proceeded to discuss plans with Ms. Bayonaplans to improve communication, curfew adherence, behavioral improvements, as well as his intention to “address this through the use of behavior plans as well as a weekly structure for Luis to follow. Mother understood and stated that she would give it a shot” ( id. at 117). Ms. Bayona worked late and was not present for the MST session on October 6, 2010. Mr. T. met with Mr. Lee and the social work intern. Mr. T. told Mr. Lee “that he felt stressed” and they discussed communication in the home. Mr. Lee reminded Mr. T. of the Administrative Hearing the next day “and stressed to him the importance of this meeting, and that he was close to a violation ” ( id. at 118).
Mr. Lee, Officer Griffith, SPO Comvalius, Mr. T. and Ms. Bayona attended the Administrative Hearing on October 7, 2010. According to Mr. Lee's notes, the probation officers “discussed Luis's behaviors and were concerned about his substance use, curfew infractions, school cuts, and lack of hours for community service. Probation and the family discussed the reasons around the behaviors (sic) and Luis had no excuse ” ( id. [italics added] ). At the end of the proceeding, “[a] contract was signed stating that Luis would comply with his terms of probation, or a violation of probation would be filed” ( id.). Additionally, an intake appointment was scheduled for Mr, T. at the Jamaica Family Center for drug treatment, and Mr. Lee and “the family” ( i.e., Ms. Bayona) “then created a weekend monitoring plan which had Luis under the supervision of an adult at all times during the weekend” when his curfew violations escalated and his substance abuse tended to increase.
In his weekly summary, Mr. Lee rated Ms. Bayona's involvement as a “5” out of a possible 10 because Ms. Bayona again missed an MST session, this time due to allegedly working late. There is no indication that Mr. Gonzales or Cecily Bayona interacted with Mr. Lee at all during the week. Mr. Lee once again listed respondent's maternal aunt, his grandmother, and his godmother as social supports, but now 3 1/2 months after CCNY began working with the respondent, there was still no concrete indication that any of these adults were available or willing to participate in supervising Luis. To the contrary, the case record strongly suggests that these adults had no intention of becoming significantly involved in monitoring Luis. While Mr. Lee's notes state that “a weekend monitoring plan was created” ( id. at 121), the details of that plan are not set forth at this point of the CCNY record.
The absence of any specifics concerning the “weekend monitoring plan” did not escape observation of Mr. Lee's supervisor, who wrote “[w]hat [does] the weekend monitoring plan look like?” ( id. at 121). The supervisor also expressed concerns about the many MST sessions which had been missed by Ms. Bayona.
Officer Griffith made an entry in her official record concerning the Administrative Hearing conducted on October 7th. Prior to the hearing, Officer Griffith had spoken with the intake staff at the Jamaica Family Center, and at the meeting Officer Griffith gave Mr. T. a referral letter and she directed that Ms. Bayona was to call the intake contact person at the program. Additionally, respondent “admitted to not attending his community service and using marijuana due to his association with his peers” (Probation Chronological Notes at 13/18).
Officer Griffith's notes of the Administrative Hearing reflect that Ms. Bayona “is very upset about the [r]espondent not obeying her rules, his curfew, and not doing any chores in the home. Next meeting is scheduled for 10/21/10” (Probation Chronological Notes at 13/18).
On October 6, 2010 Mr. Lee sent an e-mail to Officer Griffith advising her that the respondent was picked up by school truancy officers and brought to school on October 5, 2010.
He was not arrested or suspended.
Officer Griffith's Administrative Hearing Report of October 7, 2010 states that the respondent “has been testing positive for marijuana for the past 4 months while on JJI program. JJI Contingency Management plan was instituted, but the respondent still continue[s] to smoke marijuana. The respondent has been violating his curfew on a consistent basis and did not return home on 10/6/10 until approximately 11:00 PM. he has a 6:00 P.M. court order curfew. The respondent has failed to attend his community service, and has completed only 15 hours. The respondent has been truanting from school and school records received on 10/7/10 indicated that he was absent 13 days from September 8 until 10/6/10 ” (italics added).
Week 2. It appears that MST sessions at respondent's home were scheduled for October 12, 2010, October 13, 2010 (7:30 P.M.), and October 15, 2010. According to the readable portion of the CCNY record relating to this week, Mr. T. failed to attend the October 12, 2010 session, Ms. Bayona did not appear for the MST session on October 13, 2010, and Mr. T. and Ms. Bayona were both present for the session on October 15, 2010. On October 12, 2010 a covering MST therapist arrived at the home to meet the respondent to accompany him on a visit to a boxing program. The record indicates that Mr. T. “did not contact the Therapist upon his return home. Last update was at 9:30 P.M. on this date from the youth's mother and he had yet to return home” (CCNY Record at 127).
The notes of October 13, 2010 are somewhat confusing. What is clear is that Mr. T. and Ms. Bayona failed to appear for the intake appointment at the Jamaica Family Center drug treatment program, and it was rescheduled for October 21, 2010. Mr. Lee expressed concern in detail about respondent's school involvement. Mr. Lee noted that Mr. T. was late to school almost every day that he did attend, he has few or no peer associations at school and he “struggles to complete assignments”. It was also unclear how much knowledge Ms. Bayona had about her son's situation at school, and whether she was in active communication with school officials. Mr. Lee also noted that the Department of Probation had scheduled another meeting, which was a two-week follow-up to the Administrative Hearing for October 21, 2010. During the two-week period, Mr. T. failed to enroll in the outpatient substance abuse treatment program, and he did not attend school regularly.
At the October 15th MST session Ms. Bayona “stated that Luis had not been following any of the terms of his probation and continues to break the house rules” (CCNY Record at 123 [italics added] ). Mr. Lee went over the contract signed at the conclusion of the October 7, 2010 Administrative Hearing and “reminded the family that this was the final chance and if nothing changed, that Luis would be violating his terms of probation and will be seeing the judge” ( id. at 123–124). Mr. Lee “advised mother to try to stay on top of Luis more and to reduce his freedom that she gives him. Mother stated that she would try but did not think that would work out ” ( id. at 124). Mr. Lee discussed respondent's plans for the upcoming weekend and he “reminded the family that this was a very crucial weekend since it was only a few days until Luis would have to face his probation officer again” ( id.). At the end of the week's notes, Mr. Lee's supervisor wrote “[w]e may have reached a point of diminished returns as this low engagement pattern has continued for two months without much advance. The administrative hearing ... also on 10/21 is the same day as the [Jamaica Family Center] intake, so it is unknown if the caregiver has taken some steps to further implicate Luis (sic).
Without the use of supports this case will continue in this direction” ( id. at 128).
Perhaps this signifies a concern that Ms. Bayona had communicated negative information directly to Officer Griffith without the knowledge of Mr. Lee and other CCNY personnel.
Week 3. During the third week of October 2010 Mr. Lee conducted MST sessions at respondent's home on October 19, 2010 (4:00 P.M.), October 20, 2010 (7:30 P.M.), and October 21, 2010 (10:00 A.M.). Only Ms. Bayona was present for the session conducted on October 19, 2010, and Mr. T. was present on October 20, 2010. The “session” conducted on October 21, 2010 was actually a two week review after the Administrative Hearing convened by the Department of Probation in its offices.
Mr. Lee's notes indicate that he was concentrating on the persistent problems facing Mr. T. and his mother: respondent's marijuana abuse and drug usage; respondent's continued violation of his curfew; and school truancy. Contingency Management was to be continued with the assistance of the social work intern and the enrollment of Mr. T. in the drug rehabilitation program at the Jamaica Family Center. Mr. Lee also noted that there were issues involving Ms. Bayona's engagement in MST as she had missed or been late to some MST sessions.
According to the record of the October 19, 2010 session at which Mr. Lee met with Ms. Bayona (respondent's whereabouts are not noted), there had been “some improvements” in respondent's adherence to curfew and his school attendance (CCNY Record at 131). Mr. Lee and Ms. Bayona discussed other activities in which respondent could be enrolled in order to provide diversions and supervision for him. Ms. Bayona “also stated that she would be using her sister or her friend as a family support but still felt uncomfortable giving them a specific role” ( id. at 132), and they discussed the upcoming meeting with Officer Griffith at the probation department later that week. According to the notes, Ms. Bayona “expressed her frustrations and anxiety around the meeting. [Mr. Lee] reminded mother that it was not time to give up yet and that they still had some things that can be done. Mother agreed” ( id. [italics added] ).
Ms. Bayona missed the MST session on October 20, 2010, and Mr. Lee and the social work intern met with respondent at a diner next to the home as the respondent, then more than 15 years old, apparently did not have keys to his own home. The meeting with Officer Griffith for the following day was discussed and Mr. T. was “anxious” but sure that he had “done some better” in the two weeks since the Administrative Hearing ( id. at 132). Mr. Lee proceeded to discuss the respondent's relationship with his mother and respondent's “frequent lying to his mother and how he needed to learn to be more honest in order to build on their relationship as well as helping him through his probation period ... [t]he social work intern also spoke [about] curfew infractions and how this contributes to his substance abuse” ( id.).
The session conducted on October 21, 2010 was held at the probation department. Mr. T., Ms. Bayona, Mr. Lee, and Officer Griffith were present. According to Mr. Lee's notes, Officer Griffith “reviewed Luis's behaviors and stated that she would be giving him two more weeks to show more improvements. Luis and his mother understood and were glad to have the chance.
Mother did admit that Luis was still breaking some rules, but there had been some improvements” ( id.). Officer Griffith told respondent and Ms. Bayona that respondent “would have until 11/4/10” ( id.). After the meeting with the probation officer, Mr. Lee accompanied Mr. T. and Ms. Bayona to the Jamaica Family Center for respondent's intake appointment with Mr. Roth. Respondent was then signed up for individual and group substance abuse treatment which were scheduled for Wednesday and Thursday of each week.
It is possible that Ms. Bayona did not completely understand the respective roles of Mr. Lee and Officer Griffith as both appeared to be concerned about supervising her son's probation.
Whether Ms. Bayona would have reacted differently, provided negative information, or would have told Officer Griffith that she wanted Luis taken out of her home, had Mr. Lee not been present is an interesting, but unanswered question. Perhaps, the parent of a juvenile placed on probation and ordered to participate in JJI/MST should be provided with opportunities to meet with the child's probation officer outside of the presence of the MST therapist.
The supervisor's comment at the end of the weekly record states that “[t]here seems to be some advances for this family and the extension of the contract will provide us some room to work to stabilize this case.
The note observes that low monitoring of the respondent by adults has led to curfew infractions, drug use, and truancy ( id. at 135). The note also states that the substance abuse program to which Mr. T. had been referred to at the direction of probation needed to be linked to the Contingency Management being offered by CCNY.
Meaning that the probation department was still withholding the filing of a violation of probation petition and that Mr. T. could continue on in the JJI/MST program with CCNY.
Officer Griffith made entries into respondent's probation department record based upon the review she conducted on October 21, 2010. According to probation's notes, Mr. T. “was absent 3 days after our last meeting on 10/7/10. Mother claimed that the respondent was getting to school late and she was told by the respondent's counselor, Ms. Jackson, that is the reason for the absences. The respondent has been attending his classes because the teacher[s] have been signing the conduct sheets” (Probation Chronological Notes at 12/18).
Officer Griffith also wrote that “[t]he respondent admitted to still smoking marijuana and he tested positive this month again [for] marijuana according to Mr. Lee” ( id.). The notes reflect that Mr. T. stated that he smoked marijuana with his friends in a park, and that he smokes 2 blunts a week but he denies buying or selling marijuana. According to Mr. T., his friends buy marijuana for him. Ms. Bayona told Officer Griffith that “the curfew has improved but the respondent is getting home two hours late” ( id.). Officer Griffith directed that Mr. T. “is not to hang out in the park near his home smoking marijuana ... he is to get to school by 7:30 A.M., he is to attend community service [and] comply with his 6:00 P.M. curfew and attend [JFC] drug program” ( id.).
October 21, 2010 Report to Probation. For the first time, Mr. Lee's monthly report did not state that Mr. T. “fully participated” in the CCNY MST program. Instead, Mr. Lee wrote that Mr. T. “has moderately participated with TCCNY's MST/JJI program and has kept all scheduled appointments.' Mr. Lee further reported that Ms. Bayona “has increased her attendance to sessions, but misses one session per week.”
The report stated that in addition to the weekly MST sessions, the respondent met with the social work intern once a week to address his substance abuse as part of Contingency Management, and that Mr. Lee “has been working on building the engagement into treatment with the family. The MST therapist has had a difficult time consistently moving forward in treatment as Luis's mother has not been consistently attending all sessions. In a somewhat sudden change of tone which appears to be consistent with the frustration expressed by Officer Griffith and the probation department, the report seemingly becomes realistically objective and it seems to acknowledge that the MST program had been unable to accomplish the goals it had set at the beginning of its involvement with the family .The report states that the respondent's major issues of curfew violations, marijuana abuse, and truancy are primarily caused by “poor emotional regulation and stress management for Luis”.
In addition, “[h]is feelings of high stress and inability to address his emotions draws him to be out on the streets and easily susceptible to the influence of his deviant peers. Another factor contributing to his non-compliance appears to be the family's inability to effectively address and influence Luis's behaviors in the home. Luis's mother has not been able to effectively apply consequences for his behaviors ... the caregiver has also been unwilling to allow us to work with other social support that could potentially contribute to the enhanced supervision needed for Luis. The MST therapist is working with the family to address these two main factors as the family is frustrated but willing to continue to put in the effort to keep Luis from violating the terms of his probation.” Apparently, neither Mr. Lee, his supervisors at CCNY, nor Dr. Randall actually had a realistic plan to address respondent's needs and problems. The overwhelming dysfunction of Mr. T. and his family made it impossible for MST to succeed, no matter what strategy was tried by the therapists.
Respondent's psychological impairment and his cognitive limitations were diagnosed by Dr. Yanovsky long before the CCNY MST service providers reached this point, some four months into treatment. As Dr. Yanovsky found, Mr. T. suffers from Mood Disorder (particularly susceptible to stress and anger), Conduct Disorder, ADHD, and Borderline Intellectual Function ing. The psychologist also noted that Mr. T. was damaged from untreated issues relating to the violent death of his father years ago, the negative influence of friends, and marijuana abuse. Moreover, Dr. Yanovsky's testing of Mr. T. indicated that his full scale IQ was 62 (mildly delayed range), and that his word recognition was at a “3–1 grade level”. Dr. Yanovsky predicted that “[w]ith this cognitive functioning it is unlikely that the respondent can learn”. Although respondent's limitations were undoubtedly apparent to Mr. Lee and other CCNY staff, there is no indication that the CCNY JJI staff took respondent's psychological issues and his low level of cognitive functioning into account in providing him with MST.
The October 21, 2010 report also indicated that the social work intern was working with Mr. T. on the issue of drug usage through contingency management, as well as the outcome of the Administrative Hearing review conducted by the probation department on October 7, 2010, and respondent's intake appointment for substance abuse treatment at Jamaica Family Center.
According to CCNY, the plan for the next month is to “continue to build on the engagement of the mother into the treatment plan; help the family create and follow the weekly structure where they will set out times where they can share positive moments together; set up a meeting with the school to build the link between the school personnel and mother; help link the family with a pro-social boxing program; monitor Luis' attendance to the drug treatment program” and for Mr. Lee to work on the issue of respondent's substance abuse with the social work intern.
According to the report, respondent tested positively for marijuana in a test administered on October 13, 2010 and he “has been absent 13 times and late twice since school started” and Ms. Bayona has reported that respondent still violates his 6:00 P.M. curfew, including staying out all night on October 2, 2010 without permission.
The October 21, 2010 report fails to mention that Mr. T. disappeared for the entire weekend of September 25–26, 2010 and that he is believed to have abused marijuana and Xanax during that weekend.
Week 4. During the week of October 26, 2010, Mr. Lee conducted MST sessions at respondent's home on October 26, 2010 (4:30 P.M.) and October 29, 2010. A therapy session was scheduled for October 27, 2010, but no one was at home at the scheduled time, and a meeting was conducted at Thomas Edison High School on October 28, 2010. Ms. Bayona was the only family member present for the MST session on October 26th, as respondent was not at home and his whereabouts could not be ascertained by his mother. Both respondent and Ms. Bayona were present for the MST session on October 29, 2010.
According to Mr. Lee's notes, he was informed by Ms. Bayona that the respondent “continues to break his curfew, and although the mother has reported that it has improved, he is still out many hours past his 6PM curfew. While he is out, Luis is smoking marijuana” (CCNY Record at 139). In addition, it was noted that respondent continued to have issues involving school truancy as his school reported “that Luis has not been attending school consistently, which is a concern since no one is sure of his where he is during school hours ” ( id.). Mr. Lee also observed that while Mr. T. is enrolled in substance abuse treatment at the Jamaica Family Center, it was reported by his counselor, Joseph Roth, that he “has missed meetings [and][t]he family has also missed 1 session and had to reschedule one session during this week” ( id.).
Mr. Lee's notes also state that he was working with the family to “rebuild the engagement” in MST as the family has “been losing hope, which has led to less follow-through in their actions” ( id.), and he also wrote that he would consult with his supervisor and with respondent's probation officer “to plan around the next steps for the family since there has been consistent non-compliance from Luis” ( id.).
Ms. Bayona attempted to contact her son by cell phone when he was not present at the October 26, 2010 MST session, but she was unable to contact him. His whereabouts at 4:30 P.M. on that day appear not to have been known by Ms. Bayona. Mr. Lee and Ms. Bayona discussed gaps in the supervision of respondent and the mother indicated that she would attempt to fill in the gaps by enrolling respondent in activities at the Boys and Girls Club. Mr. Lee also spoke with Ms. Bayona about ensuring that a plan was in place to monitor respondent's whereabouts during the upcoming weekend which included Halloween, and they discussed the upcoming meeting at respondent's school that week.
No one was present at the case address on October 27, 2010 when the social work intern arrived to meet with Ms. Bayona and Mr. T. The intern was unable to reach Ms. Bayona by telephone as well. Mr. Lee went to Thomas Edison High School for the planned meeting with school officials on October 28, 2010, but Ms. Bayona did not appear for the meeting. Mr. Lee contacted Ms. Bayona who stated that she was on the way to the hospital with Cecily, who was ill. Mr. Lee and respondent's guidance counselor then proceeded to review respondent's school situation. According to Mr. Lee, the guidance counselor stated that Mr. T. “was truant from school”(CCNY Record at 140), and that the Individual Education Plan (IEP) for respondent called for him to have a para-professional assigned to him but that this would be of little utility if respondent did not attend school.
On October 29, 2010 Mr. Lee met with Mr. T. and Ms. Bayona. Mr. Lee informed them of the information he obtained from the guidance counselor and he noted that Ms. Bayona “was upset with Luis's truancy and poor report card” ( id.). Mr. Lee told respondent that he would need to have “conduct cards” filled out by his teachers and that he needed to meet with his guidance counselor the following Monday. Mr. Lee then proceeded to discuss the supervision plan for the Halloween weekend and the plan for respondent to visit the Boys and Girls Club to find activities and programs in which he could enroll. Mr. Lee encouraged Ms. Bayona to establish regular contact with school officials in order to monitor respondent's attendance and his progress, and she was also encouraged to locate “pro-social” activities for respondent to occupy his time. Mr. Lee also requested that Ms. Bayona obtain the address for the “safe house” where respondent goes to use drugs with the plan that he and Ms. Bayona would contact the police with that information.
The comments of the supervisor at this point in the record clearly indicate that CCNY was aware of a “lack of engagement” on the part of the respondent and his mother. Mr. Lee was directed to stress the importance of attending MST sessions to Ms. Bayona as missed meetings were not acceptable. In addition, the supervisor noted that the meeting with the guidance counselor should have occurred sooner “especially when we are aware that there are truancy issues” ( id. at 144). With respect to respondent's substance abuse, the supervisor seemed concerned that “[t]here has been no mention of the Contingency Management for some time”, although the supervisor was aware that Mr. T. was enrolled in substance abuse treatment at the Jamaica Family Center, and at the direction of the probation department, CCNY was no longer effectively in control of treating respondent's substance abuse. Although the CCNY JJI/MST program had utterly and completely failed to solve respondent's destructive and continuous use of marijuana, the CCNY supervisor indicated that there should be a meeting scheduled with the treatment program “so that the drug treatment can be a collaboration”. However, there is nothing in the record that reflects that the Department of Probation had invited CCNY to “collaborate” in the out-patient substance abuse to be provided to respondent by the Jamaica Family Center. CCNY had failed in “treating” respondent through the JJI/MST “contingency management” protocol, and there would have been no reason for the probation department to involve CCNY in the non-MST” treatment program.
The utilization of a drug treatment program outside of the confines of the JJI/MST service provider does not comply with the JJI contingency management protocol set by MST Services. Perhaps if CCNY could report that they were “collaborating” with the Jamaica Family Center, there might be some way to suggest that the referral to Jamaica Family Center was part of CCNY's contingency management plan for Mr. T.
Officer Griffith's entries in the probation department record at the end of October 2010 state that Officer Griffith and SPO Comvalius visited with respondent's guidance counselor at school. According to the notes, the guidance counselor informed the officers that “respondent has not been coming to school and she first met” with him on October 18, 2010. The counselor stated that Mr. T. was supposed to be enrolled in a special education setting, but his file did not have an IEP so it was unclear what services were supposed to be in place.
Officer Griffith contacted Ms. Bayona on October 28, 2010 to advise her that she needed to make an appointment to meet with her son's guidance counselor “and address the IEP which school does not have [and] address his truancy problems.” The note further indicates that the respondent had not been turning in “conduct sheets” which would confirm his attendance and behavior in his individual classes, as the guidance counselor indicated that she did not have any conduct sheets for respondent.
Officer Griffith's notes also indicate that on October 28, 2010 she received a telephone call from Joseph Roth, respondent's drug counselor at Jamaica Family Center. According to the notes, Mr. Roth told Officer Griffith that Mr. T. “missed his appointment on 10/27/10 for group session and on 10/28/10 for individual counseling .” On November 1, 2010, Officer Griffith called Ms. Bayona to find out why respondent had missed two appointments at the substance abuse treatment program. It appears that Ms. Bayona told Griffith that her son had “lost his Metrocard” and had no way to travel to the drug program. Ms. Bayona also told Officer Griffith that she had her son's IEP and that she would give it to Mr. Lee. Finally, school records provided to the probation department indicated that Mr. T. “was absent 11 days and present 2 days in October 2010.”
November 2010.
Week 1. During the week which included November 1, 2010, Mr. Lee conducted MST sessions at respondent's home on November 1, 2010, November 2, 2010 (4:30 P.M.), November 3, 2010 (7:30 P.M.), and November 4, 2010 (4:30 P.M.). Mr. T. and Ms. Bayona were present for the MST sessions conducted on November 1 and November 3, 2010. Ms. Bayona was present for the sessions conducted on November 2 and November 4, 2010.
On November 1, 2010 Officer Griffith sent an e-mail to Mr. Lee informing him that Mr. T. missed his group session on October 27, 2010 and his individual counseling session on October 28, 2010 at the Jamaica Family Center. In addition, Officer Griffith indicated that Mr. T. failed to come to her office at the probation department the previous week for his scheduled supervision meeting.
In addition, Ms. Vinces sent an e-mail to Mr. Lee late in the day on November 1, 2010 stating that she had a conversation with SPO Comvalius. According to Ms. Vinces, SPO Comvalius stated that respondent's “administrative contract time frame is overdue and [they] were thinking of moving towards the VOP [violation of probation]”. It appears that Ms. Vinces and SPO Comvalius agreed to consider the possibility of a residential substance abuse program for Mr. T., and “DOP will hold off a VOP and explore residential” treatment for the moment.
The Department of Probation did not need the permission of CCNY in order to file a violation of probation petition with the court. It may be that this telephone call was merely a courtesy call to update CCNY as to the probation department's plans as Mr. T. was still enrolled in the MST program at CCNY at this time.
Mr. Lee's weekly notes state that Ms. Bayona expressed concern about respondent's continued curfew violations, his failure to attend school, and his substance abuse. Mr. Lee noted that “Luis and his mother are feeling less hopeful about his standing with probation which also leads to Luis having a harder time trying to follow the rules. The MST therapist has been in contact with the probation officer who believes that Luis will need to attend an inpatient drug treatment program. The therapist has spoken with mother about this possible option and mother has stated that she would like anything that would help Luis as she is concerned that he will not change if something doesn't change in treatment ” (CCNY Record at 147 [italics added] ).
Mr. Lee's notes state that he was in contact with his supervisor “to gather support on learning different strategies to build on the engagement with the family” and that the sessions that week “were to discuss the family's feeling about the current situation since the family was expressing some hopelessness and to discuss different options that are available for the family despite the noncompliance on Luis's part” ( id. at 147).
At the session on November 2, 2010 Ms. Bayona informed Mr. Lee that respondent continued to violate house rules and that she “was receiving phone calls from the school reporting that Luis was not in school.” ( id. at 148). Respondent's maternal aunt joined in the session and the aunt indicated that respondent was frequently at her home and that she and Ms. Bayona would let each other know respondent's whereabouts.
The November 3, 2010 session involved respondent, Mr. Lee and the social work intern. Ms. Bayona was “running late” and she did not make it to the beginning of the meeting which began in a diner next to the family's residence, as it appears that Mr. T. still did not have a key to the family's apartment.
At the time of the session it was well-established that CCNY's plan for contingency management to address respondent's substance abuse had not worked and he was enrolled in a separate outpatient drug treatment program at the insistence of the probation department. Mr. Lee was already aware that respondent had failed to attend two counseling session at Jamaica Family Center and that the Department of Probation had begun to investigate a residential drug treatment program for the respondent. Indeed, earlier that day Mr. Lee had sent an e-mail to Officer Griffith reporting that his supervisor at CCNY had learned that a 28–day inpatient program was not appropriate for the respondent and that “[l]onger term care such as Camelot may be a better fit with Luis since his use is very substantial, and JJI will be nearing its end of treatment (few months).” A copy of Mr. Lee's e-mail to Officer Griffith was forwarded to Ms. Vinces by Mr. Lee.
Mr. Lee's notes of the November 3, 2010 session reflect that the social work intern proceeded to speak with the respondent “about his substance use and they discussed his thoughts and feelings about his use, as well as what he thought and felt when he was not using” ( id. at 148). Mr. T. indicated that he smoked marijuana “to make himself feel better as he was always stressed.” Ms. Bayona arrived later on and the MST session moved into the family residence. Ms. Bayona “expressed her frustrations with Luis since the school called her again, and Luis got lost on his way to the drug treatment program ” ( id.).
At the conclusion of the session respondent stated that he would appear at the Jamaica Family Center the following day and a further MST session was scheduled for November 4th.
According to Officer Griffith's notes, on November 1, 2010 Ms. Bayona stated that her son told her that he had failed to attend the two sessions at the drug treatment program “because he had lost his Metrocard and had no transportation to get there” (Probation Chronological Notes at 11/18).
Ms. Bayona met with Mr. Lee on November 4, 2010. Mr. T. was at the Jamaica Family Center at the time of the MST session, as confirmed by Mr. Lee. They discussed the various options at this point and Mr. Lee indicated that he would let Ms. Bayona know of any decisions made by the probation department. Mr. Lee's summary indicates that he met with respondent's guidance counselor who confirmed that an IEP was available for respondent and that “Luis would have a para[professional] with him, but the main concern is that he is never in school ” ( id. at 151). In addition, Mr. Lee wrote that “both mother and Luis are feeling hopeless about the situation with probation. Probation wishes to put in a violation, but is willing to continue discussions with MST ” ( id.).
Officer Griffith sent a follow-up e-mail to Mr. Lee on November 5, 2010 indicating that probation wanted to move forward with enrolling respondent in the Camelot residential drug treatment program on Staten Island. Officer Griffith requested that Mr. Lee let Ms. Bayona know of the importance of this referral and that the alternative “is a VOP.”
Week 2. During this week Mr. Lee conducted MST sessions as respondent's residence on November 9, 2010 (4:30 P.M.), November 10, 2010 (7:30 P.M.), and November 11, 2011 (4:30 P.M.). Ms. Bayona was the sole participant in the November 9, 2010 session, both Ms. Bayona and Mr. T. attended the November 10, 2011 session, and Ms. Bayona was the only family member present for the November 11, 2011 session.Mr. Lee's notes indicate that a meeting with probation had been scheduled for November 16, 2010 and that the probation officer “will likely be recommending inpatient drug treatment” (CCNY Record at 153). Mr. Lee noted that “Luis has been enrolled in outpatient treatment but has not been attending consistently. He attended one meeting this week and failed to attend another” ( id.). Mr. Lee wrote that Mr. T. and Ms. Bayona “ are feeling hopeless about Luis's situation with probation ” and that Ms. Bayona was concerned that her son would run away if a violation petition were to be filed by the probation department.
The belief of Ms. Bayona and Mr. T. that he “had a situation with probation” is understandable. Probation Officer Griffith had expressed disapproval of respondent's behavior and suggested stronger action when the family had met with her in the context of the Administrative Hearing process. On the other hand, the MST providers from CCNY appeared to be non-judgmental and non-coercive and they always offered more services, no matter how much trouble respondent had gotten himself into while enrolled in their program.
Nothing in the CCNY record indicates that the JJI/MST providers themselves fully grasped the reality of the situation or that they did anything to clarify the gravity of the situation for Ms. Bayona and Luis. Perhaps the MST providers shared the view of the respondent and his mother, or perhaps they believed that MST was infallible and destined to succeed in every case, and if probation were not rushing things by insisting on an inpatient drug treatment program and threatening to file a violation petition, they would eventually resolve all of respondent's issues.
When Mr. T. did not appear for the session conducted on November 9, 2010, Ms. Bayona attempted to contact her son by phone, “but he did not respond” (CCNY Record at 154). Mr. Lee and Ms. Bayona discussed the plans for respondent and Mr. Lee indicated that “the probation officer would like for Luis to be in inpatient treatment” ( id.), and that the matter would be discussed at the meeting with the probation officer later that month. Ms. Bayona told Mr. Lee that she was “stressed and down” about her son's situation and that she was concerned that he would “try to run away if a VOP was put in, and he knew that he would be placed in jail” ( id.). Mr. Lee then told Ms. Bayona that “a VOP is likely to be avoided, but that inpatient treatment would be the way to avoid a VOP” ( id.). Mr. Lee also advised to keep in communication with her sister and respondent's school to keep tabs on his whereabouts.
At the session conducted on November 10, 2010 with both Mr. T. and Ms. Bayona the respondent told Mr. Lee that “he was nervous about his standing with probation” and Mr. Lee told Mr. T. “to keep trying and not to give up” ( id.). Only Ms. Bayona was present for the session conducted on November 11, 2010. Mr. Lee noted that respondent was not present as he “was supposed to be at his outpatient drug treatment program”. Respondent's exact whereabouts do not appear to have been verified. Mr. Lee suggested that respondent and his mother write letters to each other to express how they were feeling ( id. at 155), and Mr. Lee then reviewed the monitoring plan for respondent for the coming weekend.
Mr. Lee's weekly summary noted that contingency management was not addressed that week because “probation is likely to put in referral for inpatient substance abuse treatment” which would result in a discharge from the MST program. In any event, the probation department had taken control of the issue of respondent's substance abuse and CCNY was no longer responsible for addressing it. Mr. Lee recorded Ms. Bayona's level of engagement in the MST program that week to be a “4” out of 10, and the same three adults were reported as social supports, which is remarkable as there is no indication that Mr. Lee had ever met or spoken with respondent's grandmother or godmother, and he had only one brief contact with respondent's aunt who only agreed to communicate with her sister concerning respondent's presence at her home. The follow-up commentary by the supervisor was also remarkable. The supervisor wrote that she approved of Mr. Lee's “new direction” with the family, although Mr. Lee only met with Mr. T. one time that week. The supervisor also inquired as to how respondent and Ms. Bayona were responding to the potential referral for inpatient substance abuse treatment ( id. at 158).
Week 3. During the third week of November 2010 Mr. Lee conducted an MST session at respondent's home on November 18, 2010 and only Ms. Bayona was present for that session. The session conducted on November 16, 2010 was an Administrative Hearing Review conducted at the probation department office. An MST session was also scheduled at the respondent's residence for November 17, 2010 but no family member was home when Mr. Lee arrived and no one showed up during the 15 minutes he waited for them.
The November 16, 2010 Administrative Hearing Review was conducted at the probation department offices. Respondent, Ms. Bayona, Mr. Lee, and Probation Officer Griffith were present at the meeting. Officer Griffith's notes reflect that she raised the issue of respondent's continuing failure to attend school as she had been informed that respondent “was absent 7 days in November and present 2 days” (Probation Chronological Notes at 10/18). Mr. T. “claimed that he does not have an I.D. card to swipe so that is the reason he is being marked absent. The days he gets to school early he is marked present” ( id.). Mr. T. admitted that he continues to “hang out' with his friends but he claimed that he had been attending his outpatient drug treatment program. Officer Griffith noted that respondent still continues to test positive for marijuana according to CCNY. Officer Griffith told Mr. T. that he was being referred to Camelot residential for drug treatment, and “he stated that he will attend” ( id.). According to the probation officer's notes, respondent “was told that if he did not go and attend the drug program he will be violated ” ( id.).
Mr. Lee's notes concerning the November 16, 2010 review at the probation department state that Officer Griffith “explained to the family that Luis had been violating his terms of probation, and instead of putting in a Violation of Probation, she would recommend that Luis be placed in an inpatient drug treatment program ” (CCNY Record at 161). According to Mr. Lee, the respondent “understood but was not pleased with the idea that he would be away from home for an extended period of time. Ms. Bayona also preferred that Luis be home, but [she] understood that Luis's substance use was a major concern, and agreed to the program hoping that it would be helpful” ( id.). Officer Griffith telephoned the Camelot program, and then Ms,. Bayona called at the direction of the program and she left a message for the program's intake director, Joe Alexander. Later that day, Mr. Lee checked in with the family and Ms. Bayona told Mr. Lee that “Luis was upset and stated that he did not want to be away from home for 6 months” ( id.).
Mr. Lee came to respondent's home for an MST session on November 17, 2010, but no one was there and no one showed up during the 15 minutes that Mr. Lee waited at the home. On November 18, 2010, Mr. Lee returned to respondent's home and he met with Ms. Bayona and Cecily Bayona. Mr. T. was not present and Ms. Bayona explained that “Luis mentioned that he no longer wanted to meet with the therapist since he did not see the point” ( id ), as he was going away to the substance abuse treatment program for the next six months. Consistent with the belief, apparently held by CCNY staff, Ms. Bayona and Mr. T., that the Department of Probation was responsible for respondent's situation, Mr. Lee noted that “[h]e and the mother discussed ways that she can continue to speak with Luis to try to build his hope and also build on the relationship that they have since all the probation situations have been getting in the way of that ” ( id. at 161). Ms. Bayona reported that she had again called the Camelot program and had left another message for Mr. Alexander, but that she had not heard from him yet.
Remainder of November 2010.
Mr. Lee visited respondent's home on November 23, 2010. Both Mr. T. and Ms. Bayona were present for the session. Ms. Bayona reported that she had made contact with Mr. Alexander of the Camelot program and she was advised to call him back on November 29, 2010 to ascertain whether he is available to do the intake for respondent the next day. Mr. Lee noted that “[t]he delay in setting up the intake is concerning the mother and the MST therapist since Luis is out longer without receiving the inpatient treatment. The MST therapist has continued to meet with the family to build on the family's functioning in the home as well as working to build supervision and monitoring plans. The MST therapist is also working to build Luis's level of hope so that he does not feel like completely giving up” ( id. at 167).
In addition, Ms. Bayona told Mr. Lee that she is frustrated “with Luis's new attitude in the recent week. She stated that she and Luis would be involved in more arguments due to both of their frustrations with the inpatient drug treatment intake” ( id. at 168). Respondent told Mr. Lee that “he felt that everything was pointless until he went to the inpatient program. He stated that he did not see a point trying to comply with any of his terms of probation until that date” ( id.). At the end of the session, Mr. Lee indicated that he would be meeting with the family up until respondent's admission to the residential program, and that he was still available to speak with them at any time.
The supervisor's note in the record subsequent to Mr. Lee's entry states that “[w]e need to work on closing this case as we will terminate potentially by the end of this week. Does the probation officer know about this delay and how we will be terminating?” ( id. at 171).
During the following weeks, Mr. Lee visited respondent's home on November 23, 2010 and November 30, 2010. Ms. Bayona and Mr. T. were present at the meeting on November 23, 2010, and only Ms. Bayona was present for the meeting held on November 30, 2010. At the November 23, 2010 meeting, Ms. Bayona informed Mr. Lee that she had tried to set up the intake appointment at Camelot for her son, but that it has not worked out. Mr. Lee and Ms. Bayona then placed a phone call to Mr. Alexander at Camelot. Mr. Alexander was not available and they were told to call back in 15 minutes. They called back and Mr. Alexander was still not available and they left a message for him.
Ms. Bayona reported that respondent was coming home at a “decent hour” ( id. at 175), but he was not attending school. Ms. Bayona reported that the probation officer had been to the home to check in on respondent, and Mr. Lee stressed the importance of setting up the intake for respondent and having him enter the program. Respondent did not participate in the session and he only spoke with Mr. Lee briefly, indicating that he had nothing to talk about. Later that day, Mr. Lee spoke with Ms. Bayona who informed him that she had spoken with Mr. Alexander to schedule respondent's intake appointment and that it had been set up for December 6, 2010 and that she would take off from work to take respondent to Camelot ( id. at 175).
Probation Officer Griffith's notes confirm that she made a home visit to respondent's residence on November 30, 2010. Griffith gave Ms. Bayona a written notice stating that the respondent failed to appear for his supervision meetings at the probation department on November 22 and November 29, 2010. Ms. Bayona indicated that she was aware that her son did not attend the meetings because he had told her. Ms. Bayona told Griffith that she was receiving daily telephone calls from respondent's school because he was not attending, and other than obeying curfew, he was not obeying any of the other conditions of probation. She also informed Officer Griffith that respondent had not been attending outpatient drug treatment at the Jamaica Family Center. In response to all of this negative information, Officer Griffith simply gave Ms. Bayona “a letter for the respondent to report to probation on 12/1/10” (Probation Chronological Notes at 10/18).
December 2010.
On December 3, 2010 Officer Griffith received an e-mail from Mr. Lee confirming that respondent's intake appointment at the Camelot program was scheduled for Friday, December 10, 2010. On December 6, 2010, Officer Griffith received an e-mail from Mr. Lee stating that the intake process at Camelot was underway and “Ms. Bayona said that Mr. Alexander said that he needed something from P.O. before they proceed. The family is feeling anxious that they [Camelot] will run out of room. Ms. Bayona will be faxing Camelot Luis's physical today” (Probation Chronological Notes at 9/18).
On December 6, 2010 Officer Griffith noted that she “contacted Camelot and spoke with Mr. James Crummer who interviewed the respondent and his mother. He stated that they do not want anything from P.O. Mother is to send physical and blood work to Mr. Alexander for the respondent to be admitted in the program” ( id.). Officer Griffith conveyed the contents of her conversation to Mr. Lee by e-mail that afternoon. Mr. Lee replied that Ms. Bayona stated that she would fax her son's physical to Camelot that day and that he would follow up and let Officer Griffiths know. On December 7, 2010, Mr. Lee left a message on the family's phone reminding them of the documents that needed to be faxed to the Camelot program (CCNY Record at 181). On December 9, 2010, Mr. Lee spoke with Ms. Bayona by telephone and “[h]e reminded her of what needed to be faxed to Camelot and she stated that she would do this over the weekend” ( id.).
On December 10, 2010 Officer Griffith visited respondent's high school and met with his guidance counselor. According to the guidance counselor, “respondent still continues to be truant”, and the school's “[a]ttendance record revealed that respondent has been absent 5 days in December and present once.” Griffith reviewed respondent's recent report card which indicated that he was “excessively absent and failing all of his classes with a 41.43% [average]. He was absent 45 days and late 3 days” for the period covered by the report card (Probation Chronological Notes at 9/18).
CCNY mailed a “termination letter” to Officer Griffith dated December 13, 2010 which reads in pertinent part, that “[a]fter consultation with the T. family, the MST therapeutic team, the MST consultant, [ACS] and the Department of Probation, the Child Center of New York JJI program has made the decision to terminate Luis T. from out program effective December 10, 2010. He was terminated because he requires residential substance abuse treatment which the MST program cannot provide.” The letter was typed over the signature of Jennifer Glover, the JJI Program Director for CCNY, and sent (apparently by e-mail) to respondent's attorney, the Assistant Corporation Counsel, SPO Comvalius, Ms. Whelan the ACS/JJI court liaison for Queens County, Michelle Carrera, an ACS/JJI staff member, Jennifer Vinces, Mr. Lee, and Dr. Jeff Randall. For reasons which are not entirely clear, Ms. Glover copied the December 13, 2010 letter to “Jennifer Glover, TCCNY Program Director”.
The letter from Ms. Glover was transmitted by e-mail sent December 13, 2010 at 7:56 P.M. which stated that the e-mail sent previously at 7:44 P.M. had an incorrect termination date in it.
The chronological notes kept by Probation Officer Griffith do no mention the termination letter, which the witnesses stated was sent by e-mail, although CCNY's e-mails for this case reflect that Mr. Lee sent an e-mail to Griffith on December 11, 2010 stating that “I will be meeting with the family this week as a closing meeting as we know that JJI is closing the case (since he will be in inpatient).”
It is not clear whether “JJI” refers to CCNY or ACS JJI staff.
Thereafter, on December 14, 2010, Mr. Lee placed a telephone call to Ms. Bayona “to check in on how Luis was doing and how the progress with the Camelot program was going. Ms. Bayona stated that Luis was doing fine and that they were both wanting to start the Camelot program soon. She stated that she tried to get the physical and blood work from Luis's doctor, but she was told that she would need to see the doctor to have them done and faxed to the Camelot program” (CCNY Record at 186). Ms. Bayona also told Mr. Lee that she had spoken with the probation officer who stated that she would file a violation petition if respondent were not soon enrolled in the program ( id.), which is also reflected in Officer Griffith's chronological notes.
Mr. Lee paid a visit to respondent's home on December 16, 2010 “for a session”, but he found no one at home. Why Mr. Lee would be seeking to conduct an MST session with Mr. T. and Ms. Bayona after the closing of the JJI case by CCNY on December 10, 2010 is not explained. It does appear that Mr. Lee was being conscientious and continuing to follow the respondent until he actually enrolled in the Camelot program. Thereafter, Mr. Lee telephoned respondent's home on December 21, 2010 and he got no answer. He left a message informing Ms. Bayona that the probation officer wanted to meet with the respondent, perhaps because the CCNY JJI/MST case had been closed for 10 days and because respondent had still not completed the process for admission to the Camelot program.
A meeting was held at the probation department office on December 22, 2010, now 12 days after CCNY had closed the JJI case, and respondent still had not been admitted into the in-patient program. Mr. T., Officer Griffith, and Mr. Lee were present and Ms. Bayona was at work but she participated by telephone. Mr. Lee's notes of the meeting reflect that Officer Griffiths “told Luis that he would need to continue to see her and was upset that he had missed multiple meetings”(CCNY Record at 187). Griffith also told Mr. T. that he would need to complete his community service during the upcoming school recess. At the meeting, Mr. Lee “reminded the family and probation officer that the JJI program has been closed since there were no moreclinical goals that needed to be achieved ” ( id.).
It is unclear whether CCNY and ACS recorded Mr. T.'s JJI/MST case as “successfully concluded”, but the record demonstrates that none of the goals laid out in the JJI acceptance letter had been achieved in the six months during which respondent had been ordered to participate in JJI/MST by the court. Mr. T. continually smoked marijuana, regularly missed MST therapy sessions with Mr. Lee, ignored his curfew, failed to complete his ordered community service, and failed to attend school on anything resembling a regular basis. In addition, Mr. T. missed scheduled supervision meetings with his probation officer, he failed to obtain part-time employment even though he completed a job training program, and he repeatedly disappeared for days at a time without permission. Mr. T. could also not keep himself out of trouble. He was robbed at gun point in Brooklyn, assaulted in a store in Queens, and he was arrested for fare beating after a meeting with his probation officer.
Officer Griffith's notes of the December 22, 2010 meeting at her office reflect that both she and Mr. Lee “both spoke with the respondent of his failures to report to probation, not doing his community service, not going to school, and explained the consequences with this situation * * * ” (Probation Chronological Notes at 8/18). According to the probation records, Mr. T. “admitted to smoking marijuana consistently and reported that he last smoke[d] on 12/21/10.” In addition, respondent told Officer Griffith that “he is spending time at his aunt's home hanging out with his cousin who just got suspended from school” ( id.). Respondent told the probation officer that he is looking forward to attending the Camelot program and looking to stop smoking marijuana. Officer Griffith noted that respondent's admission to Camelot was being delayed by the need to give medical records and clearance to the program. Griffith also told respondent that he was required to show up for community service “the week of 12/25/10 until January 2, 2011” ( id.).
Ms. Bayona telephoned Griffith's office during the meeting. Ms. Bayona stated that she requires respondent to leave the house every morning for school when she leaves for work, but that her son simply refuses to attend school, and she regularly received telephone calls from her son's school reporting his absences. With respect to respondent's admission to Camelot, Ms. Bayona reported that respondent required an “additional test before the doctor's letter for Camelot can be submitted. She has to to make another appointment to have additional test done on Luis before the doctor can complete the form. She will contact the doctor's office tomorrow” ( id.).
On December 17, 2010 Mr. Lee sent an e-mail to Officer Griffith inquiring whether Mr. T. came to see her that week as scheduled, as no one was at home when Mr. Lee visited the residence the day before. Mr. Lee also indicated that “I would like to schedule a transition meeting with this family ... since JJI will be closing out with them very shortly (12/28/10).” Officer Griffith responded by e-mail on December 17, 2010 and reported that she did not see the respondent that week and indicating that she was preparing a violation of probation petition based upon the failure to enroll Mr. T. in the Camelot program.
In his closing note of December 22, 2010, Mr. Lee stated that “[t]he JJI program has closed the case [due] to Luis's continual use of marijuana which poses a safety concern ... [s]ince Luis will be attending an inpatient program, the MST therapist will not be able to provide any further counseling services since Luis will not be home. Luis ha[s] not achieved the goals that the MST therapist and family agreed upon in the beginning of treatment. The main factors have been Luis's substance abuse, negative peer influences, and mother's failure to effectively influence Luis's behaviors” (CCNY Record at 189 [italics added] ). This understatement by Mr. Lee speaks for itself, although the failures exceed those he mentioned.
Developments subsequent to end of CCNY involvement.
The final entry in the CCNY record for Mr. T. is the closing note dated December 22, 2010, and Mr. Lee's last e-mail correspondence with Officer Griffith was prior to the meeting at the probation department on December 22, 2010. This Court has no information concerning any contact between CCNY and the respondent or the Department of Probation concerning this case after December 22, 2010, and there is no indication that CCNY provided the Department of Probation with a deposition, as called for in the JJI protocol, as no such deposition is appended to the violation of probation petition or to the amended petition.
Officer Griffith was apparently on vacation the week after the December 22, 2010 meeting at which Mr. Lee informed Mr. T. and Ms. Bayona that CCNY has closed its JJI/MST case. An entry in the probation department noted dated January 7, 2011 states that “[o]n 1/6/10 P.O. contacted [respondent's] mother to inform[ ] her that he did not report on 1/5/11, nor did I hear from her regarding getting the respondent into Camelot or the additional doctor appointment that he needed. Mother was very upset, abrupt, and agitated, stating she took him to the doctor for the additional paper work and she was told that it will take some days before she obtain[s] the results” (Probation Chronological Notes at 7/18). Griffith also told Ms. Bayona that a violation of probation petition would be filed if she did not call probation the next day.
Officer Griffith's notes further reflect that she visited respondent's high school on January 7, 2011 “and spoke with his guidance counselor, Ms. Jackson” who told Griffith that “mother is contacted [e]very day that Luis has not been in school. Mother stated that she is busy and has not taken any time to come to the school to talk with guidance counselor” ( id.). While at the school Officer Griffith obtained a copy of respondent's I.E.P. and a certification of his school attendance record “so P.O. can file a VOP if [respondent] does not go to Camelot” ( id.).
Later that same day, Ms. Bayona telephoned the probation officer to report that the doctor's office had called her to let her know that the medical test reports were completed and Ms. Bayona indicated that she would fax the paperwork to Mr. Alexander at the Camelot program on January 8, 2011. Additionally, Mr Alexander assured Ms. Bayona that a bed was available for respondent at the program and as soon as the papers were received, Ms. Bayona would be given a date for her son to report to Camelot for treatment. Griffith advised Ms. Bayona that “if Luis does not get into Camelot drug program by next week VOP will be filed” ( id. at 7/18). Officer Griffith also informed Ms. Bayona that respondent's guidance counselor reports that respondent still does not go to school ( id. at 7/18).
On January 9, 2011 Mr. T. was arrested by police officers from the 45th Precinct in Bronx County and charged with the crimes of Assault in the Second Degree, Robbery in the Third Degree. The following day, respondent was arraigned in Bronx County Criminal Court for Assault, Gang Assault, Robbery, Grand Larceny, Criminal Possession of a Weapon, and other offenses. Respondent was held for action by the Grand Jury and the Criminal Court issued a securing order while fixed bail in the amount of $1,500 bond or $1,000 cash. The police department arrest report for the incident states that the victim was chased down the street by the perpetrators and struck above his right eye with a glass bottle which “caused visible physical injury.” One of the assailants then took the victim's cell phone from his pocket and than “slashed [victim] with a knife above [the] left hip” and then the victim's jacket was forcibly taken.
According to Officer Griffith's notes, she received a telephone call from Ms. Bayona on January 12, 2011 advising her that her son had been arrested in Bronx County on January 9th and that she posted the cash bail of $1,000 and respondent was released from custody on January 10th. Officer Griffith met with Ms. Bayona and Mr. T. at her office on January 12, 2011. Ms. Bayona told Griffith that her son had gone to a party in the Bronx with his brother and a cousin without her permission on January 9, 2011. That evening she received a telephone call informing her that respondent had been arrested for assault and robbery (Probation Chronological Notes at 8/18).
At the meeting on January 12, 2011 respondent told Officer Griffith that “[h]e was planning to go to Camelot Drug [treatment] program, so he went to celebrate [ ]” at a bar. “They were thrown out of the club because people started stealing liquor from the bar. He and his cousin and other friends left and were walking [and] they saw a van approach[ ] them and the[n] people got out with machetes and clubs and [two-by-]fours and started questioning them. Luis got afraid and started to run and so did his brother, a cousin and friends. They later saw people and was arrested. He claimed he was afraid and he nor his friends did not rob anyone” ( id. at 6/18). While at the probation department, respondent was drug tested and the result was “positive for marijuana” ( id.).
Mr. T. was indicted by the Bronx County Grand Jury and on February 10, 2011 and the case was adjourned until March 29, 2011. Respondent met again with Officer Griffith at the probation department on January 19, 2011. Mr. T. told Griffith that he returned to school that day and he met with his guidance counselor and was given a schedule of classes. Respondent was referred to the Day Top substance abuse program by the probation officer. Griffith's notes state that she “informed his mother to contact [Day Top] so he can get counseling for drugs, while P.O. obtained legal document for possible VOP” ( id.). Respondent was also directed to make a daily call to the probation officer in the evening to establish that he was in compliance with the 6:00 P.M. curfew set by this Court long ago. Respondent was directed to return to meet his probation officer on January 26, 2011.
The probation department records reflect that on January 26, 2011 SPO Comvalius entered a “case direction” in respondent's file. This entry states that “Luis was rearrested for a serious offense. P.O. to initiate a VOP ASAP and submit VOP for SPO review (italics added).
A further entry made in the probation department record on January 26, 2011 by Officer Griffith states that Mr. T. was re-arrested in Kings County on January 25, 2011 in Kings County for crimes which, like the recent arrest in the Bronx, included assault, gang assault, robbery, and other offenses. According to the entry in the record, this alleged incident occurred when 4 assailants approached the victim and one hit the victim in the jaw with his left forearm, resulting in a broken jaw and and pain. The perpetrators then proceeded to attempt to steal the victim's jacket and the victim pushed the assailants off and managed to escape. Mr. T. was arraigned by the Kings County Criminal Court on January 26, 2011 and a securing order was issued fixing bail in the amount of $10,000 bond/cash. Respondent was remanded to the Department of Correction and the case was adjourned until January 31, 2011. Respondent was subsequently indicted by the Kings County Grand Jury.
On January 26, 2011 SPO Comvalius made an entry into respondent's probation record stating that “P.O. to work with ACC to obtain deposition from arresting officers on the two rearrests in Brooklyn and the Bronx”. SPO Comvalius also noted that Mr. T. “cannot enter Camelot Residential Drug Treatment due to the new charges” (Probation Chronological Notes at 5/18).
According to the probation department record, Officer Griffith spoke to a Bronx County Assistant District Attorney on January 28, 2011 and she requested that a copy of the Criminal Court complaint be forwarded to her. Griffith also noted that “Luis was indicted in superior court in the Bronx on 1/14/11 ... case is adjourned for 3/29/11.” Griffith also wrote that “[o]n his second arrest in Kings County, Docket Number 2011KN006538, he is presently in Riker's Island on a 10,000 bond. He was incarcerated from 1/26/11, this case is adjourned for 1/31/11.”
According to Officer Griffith's note dated January 31, 2011 the Assistant Corporation Counsel made appointments for the police officers involved in the Bronx County and Kings County arrests to come in to sign sworn depositions for purposes of filing a violation of probation petition. The appointments were scheduled for February 2 and February 4, 2011. Officer Griffith's notes and the sworn depositions appended to the violation and amended violation of petitions reflect that Police Officer Michael Lagani, assigned to a command in Bronx County, signed a sworn deposition on February 2, 2011 and that Police Officer Barbara Martinez, assigned to a Brooklyn command, signed a sworn deposition on February 17, 2011.
The probation department records indicate that Police Officer Martinez cancelled three appointments with the Assistant Corporation Counsel prior to her coming in to sign the sworn deposition on February 17, 2011.
On February 7, 2011 Officer Griffith received a telephone call from Ms. Bayona in which she reported that respondent has been indicted by the Bronx County Grand Jury and he was remanded to jail. Ms. Bayona then bailed the respondent out of jail over the weekend and he is due back in court on March 29, 2011. Officer Griffith advised Ms. Bayona that “P.O. is in the process of filing of VOP”, although no violation petition would be filed in the Family Court for another five weeks, which was subsequent to respondent's arrest for his alleged participation in the Queens County incident which allegedly resulted in the death of the victim. Indeed, the probation record indicates that Officer Griffith herself signed the violation of probation petition on February 22, 2011 “for ACC reviewal (sic)” ( id. at 4/18), and still no violation petition was filed until March 14, 2011.
Mr. T., then out on bail on both the Bronx County and Kings County cases, visited officer Griffith in her office on February 23, 2011. At that supervision meeting, respondent told Griffith that “he does not want to go to school. He would like to, but he has no interest in school ( id. at 3/18). Respondent also told the probation officer that “[h]e admitted to still smoking marijuana, he last smoked on 2/21/11 [and] he makes at least 3 blunts a day. He goes to Brooklyn at a grocery store and buys it.”
With respect to his recent arrest in Kings County, respondent told Officer Griffith that he was not involved in the incident. Respondent stated that he “was with his co-defendant ... his best friend and they were walking some other guy from a gang that his friend associate[s] with Latin King[s], that is why he has problems with him because he left the gang” ( id. at 3–4/18), “he” apparently refers to Mr. T.' friend or the other male they had been walking with.
The amount of marijuana respondent admitted to smoking far exceeds the amount which had been reported by MST therapist Eddie Lee throughout the period of his involvement with Mr. T.
According to Mr. T. “the cops showed up with another kid in [the] car who was assaulted and the kid was unable to identify them, saying it was not them, but the cops continued to question the kid until the kid said it was them” ( id. at 4/18). Finally, respondent told Officer Griffith that “[h]e was arrested and was in Riker's Island for one week [until] his mother bailed him out for $6,000.00. His next court date is April” ( id.). Officer Griffith noted that she directed respondent to attend the Day Top drug treatment program.
On March 8, 2011 Officer Griffith noted that “VOP was reviewed by ACC for the second time and was put on the calendar for 3/14/11 for arraignment on the VOP.”
Between the date on which Griffith signed the violation of probation petition and the date it was scheduled to appear on this Court's calendar, the probation officer visited respondent's home on March 8, 2011 where she spoke with Cecily Bayona and left a notice for respondent to appear in court for the violation of probation petition on March 14, 2011. Later that day, Griffith mailed a copy of the notice to appear in court for the violation of probation petition to Mr. T. and Ms. Bayona ( id. at 3/18).
While Officer Griffith signed the verified violation of probation petition on Tuesday, March 8, 2011, the petition was not filed with the Clerk of the Family Court until Friday, March 11, 2011 at 4:29 P.M. as reflected by the Clerk's official date stamp. The Clerk's office put the case on the calendar for the next court date, Monday, March 14, 2011, which is the first time that the violation petition would be reviewed by any judicial officer. By March 14, 2011 Mr. T. had been arrested for the Queens County homicide and was in police or Department of Correction custody. At that point, the Court could do nothing more than issue a bench warrant and an order to produce the respondent before the Family Court.
An entry in the record by Officer Griffith dated March 14, 2011 states that “[p]robationer re-arrested on 03–13–2011 for crime committed on 03–12–2011. Def [endant] did take [part] in a gang assault which resulted in physical serious injuries to the victim in this case” ( id.).
The entry of March 14, 2011 in the probation department record states that “VOP was on calendar for arraignment today 3/14/11 but Luis was arrested on 3/13/11 for Assault, Gang Assault and Criminal Possession of a Weapon. He is in Queens Criminal Court. His mother called by P.O. and she stated that Luis was awaiting arraignment on this new arrest. Mother stated that he was in police custody at PCT since Friday” ( id.).
In fact, the alleged victim, Anthony Collao, died on March 14, 2011 as a result of the injuries he allegedly sustained in the incident ( see, fn. 2 at page 2, supra ).
Mr. T. appeared before this Court on March 16, 2011 and an initial appearance upon the violation of probation petition was conducted ( see,Fam. Ct. Act § 360.3[2] ). The Court was informed that the Queens County Criminal Court had set bail in the amount of $200,000.00 and that respondent and his alleged accomplices were being detained pending further proceedings. The Court entered an order directing respondent's detention by the Department of Juvenile Justice in the unlikely event that he made bail, and the proceedings were adjourned for further proceedings upon the violation petition. The Court subsequently conducted a hearing and found that respondent had violated the condition of probation requiring that he attend school regularly as set by the Court on June 21, 2010. Following further proceedings upon the initial petition and the amended violation petition, which was filed on May 2, 2011 at the direction of SPO Comvalius after the death of the alleged victim (Probation Chronological Notes at 2/18), the Court revoked respondent's probation and he was ordered placed with the Office of Children and Family Services on May 3, 2011 for a period of 12 months, the maximum permissible period of time for the commission of a misdemeanor (Fam. Ct. Act § 353.3[5] ). Probation's notes reflect that the department marked the case “closed” on May 4, 2011 ( id. at 1/18).
VIII
The circumstances of this juvenile delinquency proceeding serves as a warning that alternative to placement programs for adjudicated juvenile delinquents must be strictly monitored by responsible public officers. Probation is a governmental function and it cannot be delegated to private entities like CCNY, and there is simply no authority to allow such programs to function as a de facto “alternatives to probation” department supervision.
This Court ordered that Mr. T. be supervised by the Department of Probation and that he observe specific conditions while under probation supervision, including that he participate in the services offered by JJI/MST. Nothing presented to the Court at the original dispositional hearing in this case even remotely suggested that the JJI service providers employed by a non-governmental agency would, in large measure, assume responsibility for the day-to-day supervision of the respondent, thereby reducing the normal supervision and scrutiny provided by trained professional probation officers. While the Court is now aware of the agreements and protocols entered into by the Department of Probation, the Administration for Children's Services, and the Legal Aid Society, nothing in the Court's order authorized the Department of Probation to defer the filing of a violation petition in this case, and nothing in the Court's order prevented the Department of Probation from filing a violation of probation petition much sooner than it did.
The system in which JJI operates is a creation of policy makers, having its own internal rules which govern the respective roles of the probation department and the JJI/MST service providers. The Court was unaware of these internal administrative rules and procedures at the time Mr. T. was placed on probation, and it was not until the post-violation proceedings that the Court learned that there was a separate system of rules and procedures which apply to probation cases involving JJI/MST.
While the Court was informed that the interagency protocols require that the JJI/MST service provider agency collaborate with both ACS and the probation department, the interaction between the MST provider agency and ACS principally consists of monthly oversight meetings between supervisors, rather than meetings or communications about a particular case.
In the June 16, 2010 letter in which ACS accepted Mr. T. “into our program to receive Multisystemic Therapy–Extended Care”, the Child Center of New York was identified as the private social services agency designated to provide services to the respondent and his family. According to the ACS letter to the Court, respondent's mother “expressed an interest in the JJI/MST program in an effort to become more equipped to take command of and improve Luis' overall behavior when he is away from the home and her direct supervision, improve Luis' ability to take responsibilities for his impulsive actions, his consequential thinking, decrease his oppositional behaviors, become better equipped to appropriately address Luis' history of arrests and school suspensions, low parental control and supervision, physically aggressive behaviors in response to stressful situations, poor judgment and insight, problem-solving abilities, refraining from befriending negative peers, acknowledging and appropriately addressing therapeutic intervention in a family setting around circumstances that brought Luis to the attention of the Court, as well as the murder of his biological father on his parents' wedding when Luis was just six years old” (JJI acceptance letter, June 16, 2010, at 1–2).
In order to achieve these goals, JJI represented that the MST service provider would develop a “family service plan” that would “focus on increased overall supervision at home ... school and community behavior, with closer monitoring of Luis' access to peers not approved by his parents, holding Luis accountable for inappropriate behaviors, substance usage and invoking age appropriate consequences for non compliance. Therapeutic intervention for Ms. Bayona and her family will also focus on family and individual social skill development, linkage with appropriate educational opportunities that better meets Luis' academic needs, psychoeducational instruction for caregivers focusing on achievable expectations and ongoing need for increased monitoring and supervision for Luis that will foster sustained on-going residency within the community” ( id. at 2).
To that end, JJI further represented that there was a plan for supervising the respondent which included the mother and Cecily ensuring that the respondent got up and got to school each day. In addition, Ms. Bayona was to contact the school after she arrived at her job to ensure that respondent was actually at school. After school, respondent was to return home where he would be supervised by Cecily until Ms. Bayona and Mr. Gonzales returned home in the evening. Alternatively, there was a plan for respondent to go to his maternal grandmother's house and await his mother's return from work. Mr. T. was to be enrolled in “pro-social activities”, and he was to attend summer school or find work during the summer of 2010 to keep him occupied and out of trouble.
Additionally, it was represented that Ms. Bayona would keep herself apprised of the company that respondent kept and that “all meetings with friends will take place at the home of Ms. Bayona where she is able to supervise Luis.” With respect to respondent's substance abuse issues, it was represented that CCNY will address this problem through a contingency management model to address his usage ( id. at 5), and it was represented that Ms. Bayona would obtain a “psycho educational evaluation[ ] to rule out any mental health and academic difficulties he may be struggling with”. Finally, any curfew imposed by the Court, by CCNY, or by Ms. Bayona would be enforced by her and she would also limit her son's visits to places where he might get into trouble.
In closing, ACS JJI stated that “Ms. Bayona will be setting treatment goals and collaborating with the MST Therapist assigned to the family, but the family as a whole, and will also empower them to appropriately supervise and monitor Luis when MST treatment ends. It is for this reason that we strongly believe that Luis and his family can benefit from JJI services” ( id. at 10). Notably, the JJI acceptance letter submitted by the Administration for Children's Services did not mention that on December 10, 2001 a judge of the Kings County Family Court found that the children, Cecily Bayona and Luis T., had been neglected within meaning of Family Court Act § 1012 by their mother. It is unclear whether the Juvenile Justice branch of ACS knew of these aged child protective proceedings, but the JJI personnel at ACS and the Court did not consider that as a factor in reaching the determination as to whether Luis T. and his family were best served by his enrollment in the JJI/MST program. In the future, the ACS JJI staff should ensure that it undertakes a thorough review of ACS records to ascertain prior family involvement with the judicial system or with ACS in non-court situations, so that such information, if it exists, can be properly considered by those charged with making these decisions.
The extensive history of this case clearly demonstrates that the JJI/MST program did not achieve the goals set forth in the acceptance letter. In retrospect, it might be said that the ACS JJI staff overestimated the health and stability of respondent's nuclear family and the ability of extended family members and close friends to participate in supervising Mr. T. It is also abundantly obvious that JJI was overly optimistic about the abilities of the respondent and his family members to successfully participate in the MST program of services, the mother's ability to expend a consistent level of energy dealing with her difficult teenage son while at the same time holding down a job, caring for an infant, and dealing with a sometimes difficult relationship with the father of her youngest child. While the JJI acceptance letter acknowledged the contents of the probation department report and the report of the Mental Health Services in making the decision to accept respondent into the JJI/MST program, once respondent began MST services with CCNY, little attention was given to respondent's psychological issues or his cognitive deficits, both of which must have affected his ability to follow the rules of MST, the rules and limitations set by his mother, his interest in school, his ability to learn, and his ability to refrain from using marijuana abusively.
To the extent that the JJI/MST program was developed as an alternative to placement in the custody of OCFS, with the attendant cost savings for the City, the program performed exactly as designed in this case.
Mr. T. remained in the community, theoretically under probation department supervision, until he became 16 years of age and he committed acts for which he could be prosecuted in a criminal court. Placing Mr. T. on probation with the direction that he participate in JJI/MST services was not without a cost, and the cost can be measured in the harm caused to the victims of his subsequent alleged and proven criminal behavior and the expense of respondent's incarceration
The use of MST rather than the placement of juveniles in state custody can result in a significant cost savings to local governments as a substantial portion of the cost of providing MST services can be shifted to other governmental entities, such as the federal government. A memorandum prepared by the President of MST Services, Inc. suggests ways in which state and local governments can shift part of the cost of operating an MST program to the federal Medicaid program ( see, MST Services Position Statement Memo, June 19, 2009, available on the MST Services website www.mstservices.com). According to the position paper, “[m]edicaid funding has emerged as an important part of the MST landscape and is playing a critical role in the financial sustainability of MST programs across the United States” and “[m]any youth and families who can benefit from standard MST are Medicaid eligible.”
While MST Services, Inc. represented its MST program as a new behavioral modification and control system designed to reduce the need to rely upon institutional placements for juvenile delinquents, there was an inherent risk in returning Mr. T. to the community, as both the Department of Probation and the Mental Health Services clinic recommended that respondent be placed in OCFS custody for treatment and confinement.
During the course of CCNY's involvement with the family, Ms. Bayona pleaded with Mr. Lee and CCNY staff to do something about her inability to control her son, going so far as to ask that he be incarcerated for his own good. Rather than contacting respondent's probation officer to have proceedings commenced to file a violation of probation petition, the MST providers contacted their out-of-state MST consultant to come up with some new strategy to control Mr. T. To the extent that the Department of Probation was kept informed of the developments in the case either through monthly reports submitted by CCNY, or through direct meetings between probation staff and Mr. T., the department handled any problems brought to its attention administratively, although the probation officers clearly recognized that there were continuing violations of the rules of probation and of the conditions of probation imposed by the Court. Whether this failure to seek judicial intervention was the result of faulty judgment on the part of probation officers or supervisors, or caused by inter-agency policy and protocols, this case should not have been permitted to reach the conclusion it did.
The unfortunate post-disposition course of this case, which was not brought to the attention of this Court until after Mr. T. had been arrested in March 2011, is “evidencebased” proof that the placement recommendations made by the Department of Probation and the Mental Health Services Clinic were correct, and that the promise of treatment and supervision offered by the JJI program was not achievable in this case.
Lest anyone claim that the case of Luis T. was an aberration, this Court itself presided over at least two other cases where juvenile delinquents placed on probation and directed to participate in the JJI/MST program were subsequently arrested and incarcerated by the criminal justice system. Numerous other juveniles directed to participate in JJI/MST have ultimately ended up placed with the Office of Children and Family Services. Undoubtedly other state Family Court Judges sitting in New York City have had similar experiences with juveniles ordered to participate in JJI/MST or a similar alternative to placement program.
Contrary to the claims made by some observers, Family Court Judges do not make arbitrary or punitive decisions at the dispositional stage of juvenile delinquency proceedings. Rather, as this case illustrates, judges faithfully adhere to the criteria set forth in the juvenile delinquency statute and they attempt to impose the disposition which is both least restrictive and which best meets the needs of the respondent and the need to protect the community. Alternative to Placement programs make sense from both a rehabilitative and a fiscal perspective. Where possible, juvenile delinquentsadolescents who have engaged in criminal behaviorshould be rehabilitated in their community ( e.g., Matter of David F., 69 AD3d 720;cf., Matter of Jean T., 89 AD3d 511).
However, placement will still be necessary where a juvenile simply poses too great of a risk to himself or herself or to the safety of the community. As observed by the Commissioner of the Office of Children and Family Services, “[y]outh placed with OCFS have typically failed in other less restrictive alternatives, such as community diversion programs and county probation supervision, and as such represent a particularly severe and difficult-to-treat group of juvenile delinquents” (Letter of Gladys Carrion, Commissioner of the Office of Children and Family Services to Governor David A. Paterson concerning use of MST with youth released from OCFS custody, June 23, 2008).
Youth who are recommended for placement and who are nevertheless placed on probation with a directive to participate in a community-based program such as JJI, certainly pose a more significant risk to themselves and to the community's safety as compared to a juvenile for whom placement has not been recommended.
The claim that Family Court Judges routinely place juveniles in OCFS custody for the commission of misdemeanors and for non-violent acts is patently false. Plea bargaining is utilized in juvenile delinquency cases, and it is not uncommon for a juvenile charged with committing violent or non-violent felony acts to enter an admission to a misdemeanor. Such an admission shortens the possible length of any placement ordered by the court, and it also spares the juvenile the stigma of having been found to have committed a felony, which could potentially result in future adverse legal consequences ( see,Fam. Ct. Act § 301.2[8][vi] ). Moreover, many juveniles who are placed with OCFS have already been unsuccessful in complying with a non-placement disposition such as probation, a conditional discharge, or an adjournment in contemplation of dismissal with conditions.
Luis T. self-destructed amid a perfect storm of good intentions, boundless optimism, and the City's ambitious policy of utilizing community-based alternative to placement programs. It is clear to this Court that the therapeutic interventions provided to Mr. T. in this case failed miserably. Based upon the facts uncovered during this proceeding, it is evident that there were grounds to terminate Mr. T. from the JJI program within the first few weeks of his involvement with the CCNY JJI/MST program, and there was a more than adequate basis upon which to file a violation of probation petition long before the first of respondent's three adult arrests for violent felonies in 2011, each of which included charges of gang assault and the infliction of serious physical injury to the victims, and resulted in the death of the victim of the third incident.
As this decision indicates (pages 207–210), the Department of Probation took no steps to file a violation petition until Mr. T. had been arrested in Bronx County and Kings County, and even then the Department saw no need to proceed with alacrity. Rather, the Department moved at a glacial pace and when the violation petition was finally filed, it was inexplicably not delivered to the Clerk of the Family Court until 4:29 P.M. on a Friday afternoon, too late for the matter to be referred to a judge for immediate consideration. The violation petition was thus calendared for this Court the following Monday, which was after the homicide in Queens County over the intervening weekend.
A violation of probation petition was certainly warranted as of the date of respondent's termination by the CCNY/JJI program with ACS approval. Had such a petition been filed, this Court's authority could have been invoked to either engage Mr. T. in appropriate and court-ordered substance abuse treatment, or to remove him from the community based upon the evidence of the danger he posed. Respondent's pattern of rampant drug use, anti-social behavior, and refusal to follow the directions of his mother was clear long before he was terminated by the JJI program, and is documented in the case records kept by the Department of Probation.
The hearing record leads this Court to conclude that respondent's enrollment in the JJI/MST program and that program's recommendations and representations to the probation department were influential, if not determinative, factors in the failure to file a violation of probation petition until it was too late to positively intervene in respondent's best interests or to protect those citizens who were seriously injured or killed during the violent crime spree with which Mr. T. is charged. Mr. T.' case was treated differently from those cases where a juvenile probationer has not been ordered to participate in the JJI/MST program, and his case should serve as a red flag amidst the current rush to replace institutional placements with community-based alternatives.
Juvenile delinquency is a persistent social problem and despite all the various reforms instituted by well-intentioned policy makers over the past century, no cure has been found for the “social disease” which some people believe juvenile delinquency to be. Innocent people are hurt and maimed when the utilization of community-based solutions are given a nearly absolute priority over the safety of the community. As this case amply demonstrates, the best interests of the juvenile are not always served by returning him or her back to the community with probation supervision and a direction that the juvenile participate in a nebulous therapeutic program.
Here innocent people were seriously injured and a young man lost his life one year ago. This should not have happened, and it would not have happened, had a violation of probation petition been filed when respondent's substantial non-compliance with the conditions of probation first became evident. For reasons which elude comprehension, the filing of a violation petition was treated as a last resort and was not done until the futile efforts at therapy were exhausted.
This constitutes the opinion of the Court.