Opinion
DOCKET NO. A-5493-13T4
03-04-2015
STATE OF NEW JERSEY IN THE INTEREST OF J.C.
Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant State of New Jersey (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief). Mark P. Stalford argued the cause for respondent J.C. (Clark & Clark, L.L.C., attorneys; Susan S. Clark, of counsel; Mr. Stalford, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Guadagno, and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FJ-12-0466-13. Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant State of New Jersey (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief). Mark P. Stalford argued the cause for respondent J.C. (Clark & Clark, L.L.C., attorneys; Susan S. Clark, of counsel; Mr. Stalford, on the brief). PER CURIAM
The State has charged J.C., a juvenile, with various offenses that he allegedly committed only a few days after his fourteenth birthday. After several days of hearings, the Family Part denied the State's motion pursuant to N.J.S.A. 2A:4A-26 to waive jurisdiction of J.C.'s case from the juvenile court to the Law Division. The judge agreed that the State had established probable cause that J.C. had committed several offenses eligible for waiver to adult court. However, the judge also found, from the extensive expert and other testimony that he heard, that the prospects for J.C.'s rehabilitation before the age of nineteen substantially outweighed the State's reasons for advocating waiver, thereby requiring denial of the State's motion under N.J.S.A. 2A:4A-26(e). We granted the State leave to appeal that ruling, and now affirm.
I.
In relevant part, N.J.S.A. 2A:4A-26(a) provides that the trial court shall:
waive jurisdiction over a case and refer that case from . . . Family Part to the appropriate court and prosecuting authority having jurisdiction if it finds, after [a] hearing, that:N.J.S.A. 2A:4A-26(e) further provides that:
(1) The juvenile was 14 years of age or older at the time of the charged delinquent act; and
(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute:
(a) Criminal homicide other than death by auto, strict liability for drug induced deaths, pursuant to [N.J.S.A. 2C:35-9], robbery which would constitute a crime of the first degree, carjacking, aggravated sexual assault, sexual assault, aggravated assault which would constitute a crime of the second degree, kidnapping, aggravated arson, or gang criminality . . . .
[N.J.S.A. 2A:4A-26(a) (emphasis added).]
If the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, waiver shall not be granted. This subsection shall not apply with respect to a juvenile 16 years of age or older who is charged with committing any of the acts enumerated in subparagraph (a) . . . .
[N.J.S.A. 2A:4A-26(e) (emphasis added).]
The Legislature has created a presumption of waiver for juveniles charged with certain specified offenses under N.J.S.A. 2A:4A-26(a)(2)(a), which are also known as "Chart 1" offenses. See also R. 5:22-2(c)(2)(A). The juvenile has a "heavy burden" to overcome this presumption. State v. R.G.D., 108 N.J. 1, 12 (1987). As the above-quoted statute indicates, the juvenile must demonstrate: (1) "the probability of his rehabilitation by the use of the procedures, services and facilities available to the court" prior to his reaching the age of nineteen, and (2) that probability "substantially outweighs" the reasons supporting waiver. N.J.S.A. 2A:4A-26(e).
The analysis under subsection 26(e) of the waiver statute requires that the court balance the juvenile's prospects for rehabilitation with the State's need for deterrence. State in the Interest of C.A.H., 89 N.J. 326, 338-39 (1982). This judicial balancing reflects a "process that is basic and fundamental to the general scheme of the criminal law," one which has been recognized as having a place in the juvenile justice system as well. Id. at 336.
Mental illness, which is a critical aspect of the present case, can be a significant factor in considering a juvenile's prospects for rehabilitation. State v. Scott, 141 N.J. 457, 465 (1995). Although the presence of mental illness does not necessarily bar a juvenile's prospects for rehabilitation, it should be considered as part of the court's waiver analysis. Ibid. The Supreme Court enumerated in Scott six factors that should be considered in analyzing the impact of a mental condition on a juvenile's rehabilitation prospects, including: (1) the period of time available for treatment; (2) the projected period of time required to achieve improvement or remission; (3) the basis for that projection, including the condition's severity; (4) the difficulty of identifying appropriate treatment or medication; (5) the juvenile's response to prior treatment or medication; and (6) the proposed program's success rate in achieving remission. Id. at 466.
II.
With this statutory and case-law framework in mind, we turn to the circumstances of the present case. The incident that led to this prosecution allegedly occurred at a synagogue in Middlesex County on October 4, 2012. J.C. and the young female alleged victim, L.W., had both been at the synagogue attending a program activity, and the attack occurred afterwards. In essence, the State contends that J.C. cornered L.W. in a coat closet in a room of the synagogue, tied her wrists and ankles with ribbon, took off her skirt and his own pants, and laid on top of her with his penis exposed. There was no sexual penetration, in part because L.W.'s legs were tied together and J.C. did not push her legs apart.
According to the State, L.W. then began screaming for help. Her sister, who had been looking for her, came to the coat closet, and J.C. immediately fled. The incident took approximately five minutes.
Photographs taken on the same evening as the reported incident, which were submitted into evidence at the Family Part's probable cause hearing, showed what are described as "red lines" across L.W.'s wrists and "marks" on her ankles. Additional photographs, also submitted into evidence at the hearing, showed coat hangers in the closet that had fallen due to the struggle between the two youths. A surveillance video also recorded part of the incident, and it was said to be consistent with L.W.'s account.
We have not been furnished with the video on this appeal, and viewing it is unnecessary to our review of the discrete jurisdictional issues before us.
Prior to these alleged offenses, J.C. had a history of various sexually-oriented incidents. He also had been in some form of mental health counseling since elementary school. Additionally, his family environment had been difficult, as reflected by his parents' marital problems and psychiatric treatment for at least one of his three siblings in recent years.
In October 2012, the State charged J.C. with six counts of juvenile delinquency for what would be criminal offenses under the following statutes, had they been committed by an adult: (1) first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count one); (2) second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(3) (count two); (3) second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(1) (count three); (4) third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (count four); (5) third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count five); and (6) fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count six).
A month after these charges were lodged, the Family Part judge ordered J.C. to be transported to the Bonnie Brae Residential Program ("Bonnie Brae"), a program designed for juvenile sexual offenders. The judge also ordered that J.C. was not to have furloughs home unless they were approved by the court.
Subsequently, the State moved to have J.C.'s case waived to the Law Division. J.C. opposed that application. The court then conducted two separate phases of hearings: (1) a probable cause hearing to ascertain the apparent strength of the State's proofs against J.C.; and (2) a rehabilitation hearing, at which the court considered expert and other testimony addressing J.C.'s prospects for rehabilitation before the age of nineteen.
It is undisputed that J.C. has been charged with several "Chart 1" offenses within the scope of those offenses under N.J.S.A. 2A:4A-26(a)(2)(a) eligible for waiver. The parties also do not contest, for purposes of the present appeal and the waiver analysis, the trial court's finding of probable cause under N.J.S.A. 2A:4A-26(a)(2). The dispute on appeal therefore focuses solely on a separate element of the statute, which was the subject of the rehabilitation phase of the trial court proceedings, i.e., whether "the probability of [J.C.'s] rehabilitation by the use of the procedures, services and facilities available to the court prior to [J.C.] reaching the age of 19 substantially outweighs the reasons for waiver." N.J.S.A. 2A:4A-26(e).
The rehabilitation phase hearings in this case were extensive, consuming five days of testimony over intermittent hearing dates between December 2013 and May 2014. Two expert witnesses and one lay witness testified on behalf of J.C.: Catherine Blandford, Psy.D., a clinical and forensic psychologist; Michael Nover, Ph.D., a clinical psychologist; and James Rau, the Clinical Director at Bonnie Brae. J.C. did not testify. Louis Schlesinger, Ph.D., a forensic psychologist, testified for the State. All of these witnesses were cross-examined by opposing counsel. Because of the fact-intensive nature of the issues and the substantial burden imposed on the juvenile to prove a likelihood of rehabilitation once probable cause is shown, we discuss the pertinent testimony at some length.
A.
Dr. Hiscox's Reports
The testifying experts and the trial court took into consideration written psychosexual evaluations of J.C. that Sean Hiscox, Ph.D., a psychologist, had respectively conducted in May 2012 (before the October 2012 incident at the synagogue) and in November 2012 (after the synagogue incident). Dr. Hiscox had performed these evaluations at the request of the Division of Youth and Family Services, now known as the Division of Child Protection and Permanency ("DCPP"). In his two reports, Dr. Hiscox provided background information concerning J.C.'s sexual history as a minor.
Dr. Hiscox's May 2012 report ("the first Hiscox report") refers to several past incidents of J.C.'s sexual behavior. One such incident occurred in December 2011. As described in the report, J.C. was on break from a hockey game and overheard a fourth-grade girl asking for assistance because she had forgotten a book in her classroom. J.C. volunteered to accompany the girl to retrieve her book. On the way back from the classroom, J.C. reportedly "grabbed" the girl, trying to "redirect her back to a classroom." After the girl screamed, J.C. let her go. As a result of this incident, J.C. was suspended from school and placed on home instruction.
The first Hiscox report also described another incident, occurring at some point between December 2011 and May 2012, in which J.C., while at a friend's home, entered the bedroom of his friend's sister, and stood over her while she slept. After the girl realized J.C. was standing there, she asked him to leave, which he did, after which she locked her bedroom door. J.C. apparently later returned to the girl's bedroom and jiggled the bedroom door handle. After this particular incident, DCPP was notified, apparently because of an existing agreement prohibiting J.C. from having unsupervised contact with children.
The record contains no indication if DCPP took action concerning this incident.
The first Hiscox report also referred to certain difficulties in J.C.'s family environment, such as marital problems between his parents, his father's layoff from work, and the closing of a family business. In addition, Dr. Hiscox suggested that J.C. may have been the subject of physical abuse by his father in the past, which resulted in DCPP's involvement with the family.
Dr. Hiscox conducted another evaluation of J.C. in November 2012 and issued his second report later that month ("the second Hiscox report"). In that report, Dr. Hiscox noted that J.C. had been having sessions with an in-home therapist at the time of the October 2012 charged offenses. Although J.C. scored a "moderate risk" level on the risk assessment instruments used by Dr. Hiscox, the psychologist was of the opinion that J.C. was a "high risk individual if not supervised and managed appropriately." Additionally, Dr. Hiscox observed that "the risk of future sexually coercive behavior is simply too high to support any consideration of a community based placement," and that J.C.'s placement in Bonnie Brae instead was "an ideal placement for him."
Dr. Hiscox referred in his second report to J.C. having previously been diagnosed with attention deficit hyperactivity disorder ("ADHD") and bipolar disorder, for which he was reportedly taking medication. These diagnoses were consistent with those of the experts who testified on behalf of J.C. at the rehabilitation hearings.
Dr. Blandford's Expert Testimony
Dr. Blandford, J.C.'s first testifying expert, is a clinical and forensic psychologist. She is employed by Rutgers University and also has a private practice. Dr. Blandford provides counseling and other psychotherapy services. She specializes in providing those services to juvenile and adult sex offenders. Dr. Blandford was qualified, without objection, as an expert in forensic psychology.
Dr. Blandford conducted an initial review of J.C.'s records in June 2013 and conducted an interview of J.C. in July 2013, at the request of the State. She issued a report based on her initial review and interview later that same month.
As the State acknowledges in its brief, it was dissatisfied with Dr. Blandford's work and thus hired Dr. Schlesinger thereafter to evaluate J.C. and to testify on its behalf instead. Dr. Blandford ultimately testified for J.C. at the rehabilitation hearing.
As part of her evaluation of J.C., Dr. Blandford administered three psychological tests: (1) the Shipley-2 test, an intelligence test; (2) the House-Tree-Person test, to screen out neurological impairments; and (3) the Wilson Sex Fantasy Questionnaire, to identify specific areas of deviant sexual thoughts. Additionally, Dr. Blandford assessed J.C.'s risk of reoffense using the Juvenile Sex Offender Assessment Protocol-II ("J-SOAP-II") instrument, as to which she reported him scoring in the "moderate range."
Based on her evaluation, Dr. Blandford concluded that J.C. is capable of being rehabilitated before the age of nineteen. She based her opinion on several factors, including that she found J.C. to be of "well above average" intelligence, which would make him "more amenable to treatment" than a juvenile with cognitive problems. Dr. Blandford also was satisfied that the juvenile programs at Bonnie Brae and similar facilities, such as Pinelands Residential Community Home, would be able to adequately treat J.C. She described J.C.'s case as a "very typical" one and that she had seen "more serious cases" in those programs.
Dr. Blandford found important the progress that J.C. appeared to have been making at Bonnie Brae. J.C. was reportedly doing well there academically. He was participating in sex offender group therapy, individual therapy, and weekly family therapy. Dr. Blandford did acknowledge one "behavioral issue," seemingly related to anger management, that J.C. was reported to have experienced early in his treatment at Bonnie Brae, in December 2012. Dr. Blandford expressed concern that J.C. may not qualify for the adult sex offender program at Avenel, due both to his young age and her belief that he would not "meet the criteria of repetition and compulsion" to qualify for treatment at Avenel.
The Adult Diagnostic and Treatment Center. See N.J.S.A. 2C:47-1.
Another important aspect underlying Dr. Blandford's opinions about J.C. concerned general aspects of brain development during adolescence. In her testimony she described that
it really has to be understood that, between the ages of 12, 13 and 19 or 20 or even 25, that the brain is in constant development and . . . especially the prefrontal cortex, which is where an individual learns to develop executive functions, such as
planning and reasoning and understanding the consequences of their actions and being fully aware of what's going to happen if they make a particular decision.On cross-examination about these developmental patterns, Dr. Blandford maintained that a juvenile's sexual arousal patterns are not necessarily "hardwired." According to Dr. Blandford, such patterns could be managed or diminished with treatment and relapse prevention efforts.
Those functions are not very developed at 13 or 14, whereas at 19 or 20, hopefully they're starting to be developed. So that explains why some actions in 11, 12, and 13-year-olds may be very impulsive because they're acting without really thinking or planning or knowing exactly what'll happen down the road.
Dr. Nover's Expert Testimony
Dr. Nover, J.C.'s second testifying expert, is a psychologist in private practice who specializes in the field of juvenile sex offenders. Dr. Nover was qualified, without objection, as an expert in the area of clinical psychology.
After reviewing numerous documents concerning J.C., Dr. Nover conducted a clinical interview with him in April 2013, which he described in his testimony as lasting "several hours." Dr. Nover also conducted a separate interview with J.C.'s mother in May 2013. In addition, Dr. Nover reviewed the report of the State's testifying expert, Dr. Schlesinger, although not the report of Dr. Blandford. Dr. Nover asserted that Dr. Schlesinger's report did not change his ultimate conclusion, believing instead that it actually provided support in various respects for the opinions that he set forth in his own report.
Dr. Nover did not conduct additional psychological tests with J.C., because he believed that the testing information reflected in both Dr. Hiscox's and Dr. Schlesinger's written reports was "fairly current," and that there was "no need at that point [for him] to duplicate" those tests.
In his testimony at the rehabilitation hearing, Dr. Nover discussed J.C.'s behavioral background and history. He noted that J.C. had been "classified as emotionally disturbed from . . . first or second grade" and having "deficits in social skills and ability to respond to social cues." He also referred to J.C.'s diagnoses of ADHD and bipolar disorder and pharmacological treatment for those conditions.
Dr. Nover explained to the trial court the significant differences between the treatment that J.C. was then receiving at Bonnie Brae and the in-home therapy that he had been receiving prior to the commission of the charged offenses. The primary difference, according to Dr. Nover, was that the Bonnie Brae Program, unlike the home care, provided "sex offender specific" treatment. Dr. Nover found this difference important because such treatment was being provided at Bonnie Brae by professionals specifically trained in that subject, and the treatment focused on preventing "recurrence of inappropriate or illegal sexual behavior."
Dr. Nover disagreed with Dr. Schlesinger's opinion that J.C.'s charged offenses were a result of "indicated planning." To the contrary, Dr. Nover viewed the charged offenses as "opportunistic," because J.C. "didn't plan to go [to the synagogue] to assault the victim but had that idea when he saw the victim at this [social] event." In Dr. Nover's opinion, such a spontaneous offense suggests a lower level of "dangerousness" on the part of the offender than what one would expect, conversely, with a planned offense.
In his clinical interview of J.C., Dr. Nover perceived no indication of "any delusional or other psychotic behavior" that would indicate a thought disorder. He also found J.C. to be "at least average or slightly above" average in terms of intellectual functioning.
Dr. Nover observed that J.C. "had only a very limited knowledge and understanding of human sexuality," and that the young man's "home and community upbringing in an Orthodox Jewish family and parochial school" may have played a role in his sexual maturity. Dr. Nover also noted that J.C. appeared to be doing well at Bonnie Brae and that J.C.'s last incident report at the facility had been more than a year earlier in December 2012.
On cross-examination, Dr. Nover acknowledged that he did not review the surveillance video from the night of the assault, although he was aware of its existence. He did review L.W.'s statement that she had provided during the investigation. Dr. Nover did not question that the offense was serious, but asserted that the seriousness of the offense did not change his opinion that J.C. was sexually naïve or that he committed the offense opportunistically.
Based on his evaluation, Dr. Nover opined that J.C. could be rehabilitated by the age of nineteen, utilizing the resources available through the juvenile court. Dr. Nover did agree with certain conclusions and recommendations in Dr. Schlesinger's report. Specifically, he concurred with Dr. Schlesinger as to the need for "external controls," including the twenty-four-hour monitoring and supervision that was being provided by Bonnie Brae, and also the need for "continued controls." He noted that medication would be another such external control.
Dr. Nover underscored the importance of the treatment that J.C. was receiving at Bonnie Brae. Specifically, he noted that the stringent "external controls" to which J.C. was constrained at the facility, such as twenty-four-hour monitoring and supervision and no exposure to young females, were presently necessary to prevent J.C. from reoffending. However, Dr. Nover also opined that such stringent controls likely would not be needed indefinitely, if appropriate treatment of J.C. at Bonnie Brae continued to progress.
Dr. Nover's emphatic assertion that J.C. could be rehabilitated before the age of nineteen was largely based on the difference between the treatment that J.C. was presently receiving at Bonnie Brae and the less effective treatment that he had been receiving prior to the charged offenses. More specifically, Dr. Nover acknowledged that J.C. had "continued to reoffend" prior to entering Bonnie Brae, despite his treatment and his parents' efforts to impose safeguards. Nevertheless, Dr. Nover opined that the "appropriate continuation of sex offender specific treatment," as well as "supervision and monitoring" in the community, would be sufficient to enable J.C.'s rehabilitation, such as through probationary supervision.
Dr. Nover acknowledged several times on cross-examination the troubling nature of J.C.'s charged offenses and the history of other incidents. In addressing on cross-examination whether the October 2012 charged offenses demonstrated "control and violence," Dr. Nover responded that there was no indication that those offenses were motivated by sexual arousal or power and control. In that regard, Dr. Nover recounted that J.C. had told him that he did not experience an erection in the alleged assault upon L.W., and that "[J.C.] was confused by why he didn't have an erection."
Clinical Director Rau's Testimony
In his testimony for the defense, Rau, the Clinical Director at Bonnie Brae, described the progress that J.C. had been making in the program. Rau favorably noted that J.C. was "in the top one percent" of the program's clients behaviorally. He also stated that J.C.'s treatment progress "is more than adequate." Rau testified that J.C. has a "good prognosis," in part because of the progress that J.C. was making in terms of academic treatment, team leadership, as well as his overall "marked" positive change since entering the facility. Rau expressed confidence that the program at Bonnie Brae was capable of meeting J.C.'s treatment needs, including the prospect for his transition to a less-restrictive environment.
Dr. Schlesinger's Expert Testimony
Dr. Schlesinger, the State's testifying expert, is a professor of forensic psychology at John Jay College of Criminal Justice in New York, a position that he has held since 1997. In addition, Dr. Schlesinger is in private practice in the field of clinical and forensic psychology. Dr. Schlesinger was qualified, without objection, an expert in forensic psychology.
On cross-examination, Dr. Schlesinger acknowledged that he had not treated a juvenile sex offender in "about ten years," given that he "primarily" is a professor and has focused more on research in the past decade, although he does maintain a private practice.
As part of his psychological evaluation of J.C., Dr. Schlesinger interviewed the juvenile on two occasions in November 2012. He also administered to J.C. a series of psychological tests. In addition, Dr. Schlesinger reviewed the reports from Dr. Hiscox, Dr. Blandford, and Dr. Nover.
In addition, Dr. Schlesinger reviewed two reports prepared by two other mental health professionals, a Dr. Ronald Silicovitz and a Dr. Charles Martinson. Those other reports are not reproduced in the record on appeal.
Dr. Schlesinger found certain aspects of J.C.'s family background particularly significant. He noted that J.C. was raised in an "intact" family. However, Dr. Schlesinger also noted that there were significant stressors, such as the fact that J.C.'s twelve-year-old sister "was in a psychiatric hospital for violent outbursts" at the time; that his parents were in the process of divorcing; and that he had a "rather tumultuous relationship" with his father, with indications of abuse in the past, which necessitated the DCPP's involvement.
Dr. Schlesinger found it significant that J.C. had experienced an unstable educational history, having attended multiple schools, each for fewer than two years, and having been home-schooled for the prior two years due to problems with his "sexual behavior" at school. He noted that J.C. had been in mental health treatment with various providers from the age of seven. Dr. Schlesinger also testified about certain noteworthy incidents in J.C.'s history, some of which had been reflected in Dr. Hiscox's first report.
These incidents dated back to when J.C. was six years old and include inappropriately kissing girls, one only four years old, and "night adventures," wherein J.C. rode his bike around the neighborhood and on at least one occasion tried to break into a home where he knew a girl would be sleeping in her bedroom. As a result of this behavior, J.C.'s parents installed an alarm system, but J.C. apparently continued to sneak out of the house.
With respect to the predicate charged offenses, Dr. Schlesinger found that the alleged act of J.C. tying his victim up was of "[h]uge significance," because "part of [J.C.'s] disturbance" is that he does not want a girl to resist. Dr. Schlesinger also referred to other prior incidents in J.C.'s history, which indicated what he viewed as J.C.'s need for power and control. For instance, J.C. had stated to Dr. Schlesinger that he snuck out of his parent's home at night looking for girls because it "would be easier to subdue" a girl at 3:00 or 4:00 a.m., because she would be tired then.
Based on his own interviews with J.C., Dr. Schlesinger disagreed with Dr. Nover's opinion that J.C. was sexually naïve, in part because J.C.'s vocabulary describing sexual acts, and his perception of L.W. as a "worthy sexual partner," did not reflect such naïveté, in his opinion. Dr. Schlesinger also took issue with Dr. Nover's interpretation of J.C.'s claim that he did not experience an erection when he was lying on top of L.W. Dr. Schlesinger testified that it was "not uncommon" for that to be so for a person committing a "sex crime," because "the aggression itself is eroticized and takes the place of actual sexual penetration."
Dr. Schlesinger disagreed with J.C.'s prior diagnoses of bipolar disorder and ADHD. He instead believed that J.C. met the criteria for disruptive mood disregulation disorder, which has been defined in the Diagnostic and Statistical Manual of Mental Disorders-V ("DSM-V") relatively recently, ostensibly in reaction to what Dr. Schlesinger described was a general "over diagnosis of bipolar disorder." He also expressed his opinion that J.C. did not meet the criteria for ADHD.
American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders (5th ed. 2013).
Dr. Schlesinger found that J.C. met the diagnostic criteria in the DSM-V for "conduct disorder," based on his previous aggression toward others, including aggressive sexual activity, sneaking out of his home, and lying to his parents. The State's expert also opined that J.C. had paraphilia, which he described as "abnormal sexual arousal pattern" or "sexual sadism." Regardless of the specific diagnoses, however, Dr. Schlesinger did acknowledge that those conditions were "treatable with medication."
Specifically addressing J.C.'s "deviant sexual arousal pattern," Dr. Schlesinger described it as J.C. being "aroused to exerting power and control over another person." In Dr. Schlesinger's opinion, certain types of arousal patterns cannot be changed, even with counseling or therapy.
Dr. Schlesinger opined that certain factors weighed in favor of J.C.'s rehabilitation potential, while certain other factors weighed against such potential. He cited several considerations, such as J.C.'s ability to accept responsibility for his actions, his potential for interpersonal attachments, the presence of mental or behavioral disorders, family circumstances, prior physical or sexual abuse, level of criminal sophistication, and response to treatment to date. Like Dr. Hiscox, Dr. Schlesinger expressed his belief that J.C. is at high risk of re-offending.
On cross-examination, Dr. Schlesinger acknowledged that, in addition to incarceration, another type of external control would be monitoring in the community, such as through parole and probation. He agreed that J.C.'s present placement in Bonnie Brae was appropriate, and that the facility provides the proper external controls that J.C. needs. Nevertheless, Dr. Schlesinger maintained on cross-examination that he could not be sure if J.C.'s treatment at Bonnie Brae was effective, because J.C. remains in that controlled environment and thus had not been tested in a less-restrictive one. In addition, Dr. Schlesinger discounted the progress that J.C. reportedly was making in his current placement, because, in his opinion, "it has nothing to do with preventing [J.C.] from acting out the way he has demonstrated."
Dr. Schlesinger acknowledged that he has never consulted with or worked with facilities such as Bonnie Brae or Pinelands Residential Community Home. Dr. Schlesinger's testimony on cross-examination also revealed that he was not familiar with specific programs and services that are available through the New Jersey juvenile justice system.
B.
After carefully considering the experts' testimony and the other proofs, Judge James F. Hyland denied the State's waiver motion on June 11, 2014. In his lengthy oral decision, Judge Hyland canvassed in considerable detail the evidence adduced at the rehabilitation hearing. The judge found all three experts to be credible, although he essentially determined that the opinions of the two defense experts were more persuasive than those of Dr. Schlesinger on the pivotal question of J.C.'s likelihood of rehabilitation before reaching the age of nineteen.
Judge Hyland recognized that the State's primary contention is that J.C. is "incapable of controlling himself" and thus is in need of "external controls that are not time limited," because he has continued to display sexually deviant behavior despite various measures, such as psychological therapy and medication. The judge also noted J.C.'s argument in response, i.e., that waiving this case to the Law Division would deprive J.C. of the various services that could help in his rehabilitation. On this issue, the judge found significant the defense's point that J.C's treatment at Bonnie Brae has been of "much more help" to him than the monthly counseling he had received prior to entering Bonnie Brae in November 2012.
The judge also credited the opinions offered by both of the defense experts, Dr. Blandford and Dr. Nover, in which they recommended that J.C. should remain at Bonnie Brae to receive various services. Those services include "sex impulse control treatment," "arousal reconditioning therapy," and "deviant sexual arousal therapy," among other things.
The judge applied to these facts and circumstances the balancing approach mandated by the Supreme Court in C.A.H., supra, 89 N.J. at 338-39, weighing the prospects for the juvenile's rehabilitation with the State's countervailing need for deterrence. Id. at 344. As part of his analysis, the judge considered the role that J.C.'s mental health diagnoses would play in his likelihood for rehabilitation, in accordance with Scott, supra, 141 N.J. at 466.
Noting Dr. Schlesinger's concession on this particular point, the judge found that J.C.'s diagnoses, including bipolar disorder, ADHD, and conduct disorder, could be medically managed, and that those conditions "do not detract from [J.C.'s] likelihood of rehabilitation." Applying the six Scott factors, the judge concluded that five of those factors weighed in favor of J.C.'s likelihood of rehabilitation. The only exception was that remission was not expected, although the judge hastened to add that "[p]roper medication and therapeutic management should help [J.C.] control these disorders."
Judge Hyland also considered the seven risk factors identified in State ex rel. D.D., 369 N.J. Super. 368 (Ch. Div. 2003), for assessing J.C.'s potential for rehabilitation. The judge found that some of those seven risk factors weighed in favor of waiver, albeit to different degrees, such as J.C.'s "pattern of prior offensive behavior," his "physical aggression" and "exploitative ability," and "dysfunctional behaviors in school." On the whole, however, the judge concluded "that the available programs within the four years left to [J.C.] will allow for a successful rehabilitation."
Those risk factors, as set forth in D.D., entail: "(1) prior offenses/delinquent behavior, (2) substance abuse, (3) leisure/recreation, (4) personality functioning, (5) attitudes orientation, (6) educational and employment history, and (7) family relationships." Id. at 378.
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Lastly, the judge addressed the question of deterrence. Noting the distinction between individual deterrence and general deterrence, as articulated in State v. Onque, 290 N.J. Super. 578, 585 (App. Div.), certif. denied, 146 N.J. 497 (1996), Judge Hyland only addressed the question of general deterrence here. The judge did so because the question of individual deterrence was essentially moot, given his finding that J.C. could be rehabilitated before the age of nineteen. See D.D., supra, 369 N.J. Super. at 381. The judge acknowledged the general need to deter conduct involving the severity of J.C.'s charged offenses, but he also noted, on the other hand, J.C.'s relatively young age of fourteen at the time of the charged offenses and the disparity between the potential respective juvenile and adult sentences that could be imposed.
Based on this extensive analysis, Judge Hyland concluded that "the reasons for waiver [were] substantially outweighed by the probability of rehabilitation." This interlocutory appeal by the State followed.
III.
The State contends that the trial court erred in its waiver analysis, in particular its dispositive finding under N.J.S.A. 2A:4A-26(e) that J.C. has shown a probability of his rehabilitation before he reaches nineteen and that such probability outweighs the State's asserted reasons for waiver. Fundamentally, the State maintains that J.C.'s history of prior inappropriate sexual behavior, along with the diagnoses of the mental health professionals, signifies that he has a sexual arousal pattern that is "incurable."
According to the State, J.C. should therefore be adjudicated within the adult criminal justice system rather than the juvenile justice system. As part of its argument, the State contends that the judge should have given greater weight to the State's testifying expert, Dr. Schlesinger, rather than the differing, and more optimistic, opinions of Dr. Blandford and Dr. Nover, whom the State specifically contends downplayed J.C.'s past aberrant behaviors.
Our scope of review in considering the State's arguments for reversal is limited. As articulated by the Supreme Court, appellate review of juvenile waiver determinations requires that:
(1) findings of fact be grounded in competent, reasonably credible evidence, (2) correct legal principles be applied, and (3) the judicial power to modify a trial court's exercise of discretion will be applied only when there is a clear error of judgment that shocks the judicial conscience.The scope of review of a trial court's waiver determination also has been described as an abuse-of-discretion standard. Onque, supra, 290 N.J. Super. at 584.
[In re State ex rel. A.D., 212 N.J. 200, 214-15 (2012) (quoting R.G.D., supra, 108 N.J. at 15) (emphasis added).]
We should not interfere in a waiver determination on appeal "if the trial court has applied the correct legal principles, has considered appropriate factors, and the judge's exercise of discretion did not constitute a 'clear error of judgment' considering all relevant circumstances[.]" Ibid. "Once the particular standards legally applicable [to waiver] are followed and there is sufficient evidence in the record, the trial court decision should not be subjected to second-guessing in the appellate process." R.G.D., supra, 108 N.J. at 15. "[W]e must be conscious of avoiding the possibility of public outrage being a determinative factor in a transfer decision or a sentencing disposition." Ibid. (citation omitted).
Adhering to these principles of limited appellate review, we affirm the trial court's order denying the State's waiver motion in this case, substantially for the well-supported reasons set forth in Judge Hyland's comprehensive opinion. We add only a few amplifying comments.
On the whole, it is readily apparent that the judge recited and conscientiously applied the applicable factors for waiver decisions under the statute and case law. There is ample credible evidence in this record to support the judge's conclusions. Even if, as the State advocates, the judge should have factored into his analysis a need for specific deterrence of J.C., in addition to the general deterrence of other juveniles, that additional element does not manifestly undermine the judge's decision to maintain the Family Part's jurisdiction over J.C.
We are mindful that, had J.C. committed the alleged subject offenses a few days earlier before his fourteenth birthday, the applicable statutes would not have permitted him to be prosecuted as an adult regardless of the severity of those offenses because they do not involve murder. N.J.S.A. 2A:4A-27; see also R. 5:22-1. We do not regard the circumstances here to be sufficiently exceptional to mandate this comparatively young offender's transfer to adult court. Nearly five full years will have run from the date of the charged offenses to J.C.'s nineteenth birthday. His experts, who evidently have more recent and more relevant experience with juveniles than Dr. Schlesinger, have professionally opined that there is a reasonable likelihood that J.C. can be rehabilitated by that time.
The testimony of the defense experts, as well as that of Bonnie Brae's Clinical Director Rau, amply support the judge's finding that J.C. is now getting the juvenile-specific treatment he undoubtedly needs at Bonnie Brae. The judge had the prerogative of accepting the opinions of the defense experts over the somewhat differing views of the State's expert, Dr. Schlesinger. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961). Although we appreciate the severity of the charged conduct here and J.C.'s troubling past history, the State simply has not shown that the trial court made a "clear error of judgment that shocks the judicial conscience." A.D., supra, 212 N.J. at 215.
Affirmed. The matter is remanded for disposition in the Family Part. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION