In this case, a a young man was found to be a criminal juvenile delinquent by the Family Court, and who was thereafter placed under the supervision of the New York City Department of Probation. He 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.
Sadly, during the period in which he was placed under probation supervision, he 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 As a result of these arrests, the probation imposed by the Family Court has been revoked and he has been placed in the custody of the New York State Office of Children and Family Services.
A New York Felony attorney said that respondent was born in June 1994, and in April 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 he violated Penal Law § 265.05 which makes illegal the possession of certain weapons by a person less than 16 years of age.
Thereafter, respondent entered an admission which was accepted by the 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. 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.
Respondent’s mother spoke with Probation Officer who conducted the investigation. she informed the Officer that respondent resides with her, his step-father, and two siblings in the family home. According to her, respondent “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 Criminal 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”.
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 marijuana possession and using it “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 criminal possessing controlled substances on school grounds. This incongruity was not addressed in the probation department report.
In the summary of the report, the probation officer reported that respondent 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, the Officer concluded that respondent “is a high risk for community-based services”, and it was recommended that Luis be placed away from the community.
In making the recommendation that Luis be placed away from home, the examining physicaian 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.” he further stated that the mother “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.”
At the conclusion of the dispositional hearing, the Court adjudicated respondent to be a juvenile delinquent, based upon the Court’s determination that he required supervision and treatment. Upon consideration of the needs and best interests of respondent, 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 criminal felony act, respondent was placed on probation under the supervision of the New York Department of Probation for a period of 18 months.
In placing respondent on probation, the Court directed as a condition thereof that he enroll in and cooperate with the JJI program. 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 possession, 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 respondent, his mother, the Department of Probation, and the staff of the ACS JJI program.
Although Respondent remained under the jurisdiction of the Family Court during the period of his probation, the Court had no occasion to revisit Respondent’s case for a period of approximately nine months. Thereafter, the New York City Department of Probation filed a petition pursuant to Family Court Act § 360.2 alleging that respondent 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. The original violation petition alleged that he 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 concerning respondent’s violations of the conditions of probation was appended to the violation petition as an exhibit.
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. Juvenile delinquency proceedings are commenced under article 3 of the Family Court Act.
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.
This parens patriae approach to juvenile delinquency “prevailed, with a few exceptions, for more than half a century” in 1966 followed by a decision which “inaugurated sweeping constitutional reform of the rights of juveniles in this country”. 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”
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”
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[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. With the exception of those cases where the juvenile has been found to have committed a designated felony act, in which instance the Family Court may impose a restrictive placement with a minimum time period for the placement, 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.
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. 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.
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, 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.
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.
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 delinquents adolescents who have engaged in criminal behavior should be rehabilitated in their community.
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” 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.
Respondent 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 Respondent in this case failed miserably. Based upon the facts uncovered during this proceeding, it is evident that there were grounds to terminate respondent 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 criminal 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.
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 respondent 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 Criminal 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 respondent is charged. Respondent’s case was treated differently from those cases where a juvenile probationer has not been ordered to participate in the 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.
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