Opinion
DXXX/17
02-07-2018
In the MATTER OF JUSTIN L., A Person Alleged to be a Juvenile Delinquent, Respondent.
Kelly Schwab, Esq., Assistant Corporation Counsel, New York City Law Department Katherine Mullen, Esq., The Legal Aid Society, Juvenile Rights Practice Pamela J. Le'Mon, Esq., Office for People with Developmental Disabilities Nancy J. Pepe, Esq., Office of Mental Health
Kelly Schwab, Esq., Assistant Corporation Counsel, New York City Law Department
Katherine Mullen, Esq., The Legal Aid Society, Juvenile Rights Practice
Pamela J. Le'Mon, Esq., Office for People with Developmental Disabilities
Nancy J. Pepe, Esq., Office of Mental Health
Lillian Wan, J.
In this Article 3 juvenile delinquency matter, there are three separate juvenile delinquency petitions pending against 14–year-old Justin L. The attorney for the child has filed a motion seeking an order dismissing the petitions based on the doctrine of res judicata. The Court has also, sua sponte , made a motion to dismiss the petitions in the furtherance of justice pursuant to F.C.A. § 315.2. The Presentment Agency has submitted an Affirmation in Opposition opposing dismissal on both grounds. The attorney for the child has submitted papers in support of the Court's motion to dismiss the matters in the furtherance of justice. For the reasons set forth below, the petitions are dismissed based on res judicata grounds as well as in the furtherance of justice.
On August 4, 2017, this Court made a determination that the respondent is an incapacitated person under F.C.A. § 322.1. The reasons for that finding are memorialized in a written decision issued on August 14, 2017. See Matter of Justin L. , 56 Misc 3d 1167 (Kings County Family Court 2017). The respondent was subsequently committed to the custody of the New York State Office of Mental Health (hereinafter OMH) as required under F.C.A. § 322.2(4). OMH elected to place Justin at the New York City Children's Center, Queens Campus, a hospital setting, where Justin remains to date. At the time the Court entered the commitment order, the respondent had four pending juvenile delinquency petitions, but he was only committed to OMH on one docket, filed on January 18, 2017, because issue had not been joined on the other three cases. To this date, Justin has not been arraigned on juvenile delinquency petitions filed on July 5, 2017, July 11, 2017 and July 28, 2017. Speedy arraignment has been continuously waived on those three proceedings by the attorney for the child. The attorney for the child has specifically asked that the respondent not be produced in Family Court since the respondent lacks the capacity to understand the proceedings or to assist in his own defense, and he engaged in self-injurious behavior the last time he was produced in Court.
The Court notes that the petitions filed on July 5, 2017 and July 28, 2017, involve alleged incidents from November 3, 2016 and November 21, 2016 respectively.
On or about October 4, 2017, OMH filed a motion seeking an order pursuant to F.C.A. § 322.2(5)(d) declaring that the respondent will continue to be an incapacitated person for the foreseeable future, an order dismissing the petition, and an order terminating the commitment to OMH. On October 12, 2017, the Court granted the motion to the extent that the Court found that the respondent will continue to be an incapacitated person for the foreseeable future pursuant to F.C.A. § 322.2(5)(d). The Court declined to release Justin from OMH custody at that point because the hospital had not yet held a discharge planning conference for Justin and there was no recommendation for where Justin would go upon release from the hospital. The Court directed that a discharge planning conference be held. At the next Court appearance, November 3, 2017, the Court was informed that a discharge conference had been held at the hospital on or about November 1, 2017, however Justin's mother was not included in the meeting, even though she came and visited Justin that same day. The treatment team leader, Dr. Michael Harrigan, recognized that leaving the mother out of the conference was an oversight. Dr. Harrigan also indicated that other than his hospital, the only other option for placement through OMH would be a residential treatment facility or "RTF," and Justin did not meet the criteria for a residential treatment facility.
On consent of all counsel, the Court dismissed the initial juvenile delinquency petition, Docket DXXX/17, which was filed on January 18, 2017, as the Court had already found that Justin will continue to be incapacitated for the foreseeable future pursuant to F.C.A. § 322.2(5)(d). The statute mandates dismissal of the petition in this circumstance. Counsel for OMH argued that Family Court was without authority to continue Justin's commitment to OMH after dismissing the juvenile delinquency proceeding for lack of capacity. OMH further asserted that Justin no longer met the criteria for in-patient admission to a hospital and should be discharged to the care of ACS. The Court was also informed that while the Edenwald Center (hereinafter Edenwald) was identified as the recommended discharge option for Justin, a case planner from Edenwald represented that there were no available beds for Justin at that placement. Given the fact that there was no available placement for Justin through ACS, OMH, or the Office for People with Developmental Disabilities (hereinafter OPWDD), the Court directed that Justin remain temporarily committed to the custody of OMH pursuant to FCA § 233 and § 322.2(5), and that a new discharge planning conference be held within two weeks to determine the most appropriate placement for the respondent upon his discharge from the hospital. The Court directed that all residential school placements, out of state placements, and all residential treatment centers be explored. The Court further directed the mother to be at the discharge planning meeting. Justin has remained at the hospital since that time and the Court has declined to discharge him from OMH custody prior to an appropriate placement being located.
Justin was initially placed in ACS custody pursuant to a voluntary placement agreement executed by Justin's mother.
Under F.C.A. § 315.2, a petition can be dismissed in the furtherance of justice "at any time." This is true even though there may be no basis for dismissal as a matter of law. In making this determination, the Court must consider the following factors: (a) the seriousness and circumstances of the crime; (b) the extent of harm caused by the crime; (c) any exceptionally serious misconduct of law enforcement personnel in the investigation and arrest of the respondent or in the presentment of the petition; (d) the history, character and condition of the respondent; (e) the needs and best interests of the respondent; (f) the need for protection of the community; and (g) any other relevant fact indicating that a finding would serve no useful purpose. F.C.A. § 315.2(1). The statute further provides that a Court can find that dismissal is required as a matter of judicial discretion by the existence of some compelling circumstances clearly demonstrating that a finding of delinquency or continuation of proceedings would result in an injustice. The statute expressly states that "the court itself" can make such a motion, which is what has been done here. See F.C.A. § 315.2(2). The Court has wide discretion to dismiss a petition in the furtherance of justice upon the Court's consideration of the seven enumerated factors. See F.C.A. § 315.2(1)(a-g). Matter of Chris H. , 197 AD2d 689 (2nd Dep't 1993) ; Matter of P.C. , 10 Misc 3d 1073(A) (Nassau County Family Court 2005). "At least one of these factors must be readily identifiable and sufficiently compelling to support the dismissal." Matter of Kwane M. , 121 AD2d 635 (2nd Dep't 1986). In Matter of Reginald V. , 134 AD2d 258 (2nd Dep't 1987) and Matter of Chris H. , 186 AD2d 739 (2nd Dep't 1992), aff'd , 197 AD2d 689 (2nd Dep't 1993), cases cited to by the Presentment Agency, the Family Court did not set forth their reasons for dismissing the juvenile delinquency petition in the furtherance of justice so the Appellate Division Second Department remitted the case back to Family Court for the jurists to make the specific findings.
In Matter of P.C. , supra , the Family Court dismissed the juvenile delinquency petition in the furtherance of justice after the Court found the respondent to be an incapacitated person, but before holding a probable cause hearing in accordance with F.C.A. § 322.2(3). That case involved a top charge of Criminal Sexual Act in the First Degree, a Class B Felony. The respondent in Matter of P.C. had an IQ of 69, which placed him in the mild mental retardation range of intellectual functioning. The respondent was evaluated by two mental health professionals who opined that the respondent was an incapacitated person stemming from cognitive difficulties, and that he lacked the capacity to understand legal proceedings. The reports also indicated that treatment would not improve the respondent's ability to comprehend his legal situation. In considering the respondent's history, character and condition, the Court noted that the respondent suffered from cognitive and physical difficulties from birth, and that he was a student who was classified with multiple disabilities. In dismissing the case, the Court reasoned that it could not see anything fruitful stemming from holding a probable cause hearing and noted that residential treatment would be extremely detrimental to the child's well-being. Similarly, in the instant case, the most compelling factor supporting the dismissal of the petitions involves the history, character and condition of the respondent ( F.C.A. § 315.2(1)(d) ) and the needs and best interests of the respondent ( F.C.A. § 315.2(1)(e) ). Justin has already been found incompetent to stand trial. He lacks the capacity to understand the legal proceedings that have been brought against him. The Court recognizes that the allegations here are serious and that Justin is charged with both felony and misdemeanor sexual assault of female strangers, but that factor does not outweigh all other factors. Furthermore, the Court has no clear way of measuring the extent of the harm caused by the alleged crimes, but it is significant to the Court that the plan for Justin is to be in a supervised residential environment. Therefore, Justin's access to the complaining victims on the pending cases will be restricted. Notably, neither the seriousness of the crime nor the harm caused by the crime are relevant to a Court's determination that an individual lacks the capacity to proceed as defined under F.C.A. § 322.2(1).
With regards to the "presentment of the petition" under F.C.A. § 315.2(c), it is also significant to the Court that the Presentment Agency has repeatedly maintained over the last three months of regular court appearances that their intention is to withdraw all pending delinquency dockets as soon as an appropriate placement is secured for Justin. They do not intend to seek an order of fact finding on this case, nor do they intend to seek an order finding that the respondent is in need of supervision or treatment under Article 3 of the Family Court Act. However, the Presentment Agency has made it clear that they will not withdraw the cases until a placement has been located for Justin. Finding an appropriate placement for Justin has been a multi-systemic continuous struggle. The Court has been repeatedly informed by Counsel for OMH that OMH does not have facilities that treat someone whose primary diagnosis is a developmental disability. Counsel for OPWDD has repeatedly maintained that OPWDD does not have any placements for children, and that they do not provide any services to children who are in ACS custody because ACS is statutorily obligated to provide all necessary services for the child.
The Court has been calendaring this case every one to two weeks for the last several months to receive reports as to the progress of locating a placement for Justin. At this juncture, it has become clear to the Court that the three pending delinquency dockets are hindering Justin's ability to be placed with ACS. Even JCCA, the contract foster care agency that had initial planning responsibility for Justin under his voluntary placement docket, has indicated that they cannot provide services for him and has requested that Justin be placed elsewhere.
On November 28, 2017, the Court learned that a new discharge planning conference was held but that no placements, other than Edenwald, were explored. ACS reported that a bed at Edenwald had become available for Justin at that point, however neither the Court nor the attorney for the child was satisfied that the Court's order directing an exploration of all residential placements, including out of state placements, was complied with. Dr. Harrigan clarified that the treatment team recommended the structure of a Residential Treatment Center for Justin, but Edenwald was not specifically recommended as the facility of choice, and he was not aware of any special programming at Edenwald that was uniquely tailored to Justin's needs. According to the discharge summary dated November 23, 2017, Justin did well in the structured hospital setting at New York City Children's Center, where he was placed on a unit with both boys and girls his own age and not on any special category of supervision. The discharge summary indicated that Justin was compliant with psychiatric medication, and that he had not exhibited any sexualized behavior since entering the hospital on August 9, 2017. The Court again continued the order of commitment to OMH and re-ordered ACS to explore all residential treatment centers, including out of state placements.
On December 5, 2017, counsel for ACS submitted a report detailing the efforts that ACS Office of Placement Administration has made to locate an appropriate placement for Justin. The report stated that efforts were made to place Justin at approximately six Residential Treatment Centers but Justin was not accepted in any of these placements, largely due to his low IQ and their inability to service a youth with autism. The Court also received a letter from JCCA Edenwald indicating that "Edenwald is unable to provide the necessary supervision and intensive care treatment to prevent Justin from continuing to engage in such high risk sexual behavior, and therefore his risk to himself and others is high." The report further states that the program does not utilize a behavioral reward system and that Edenwald "is unable to provide the necessary therapy to address Justin's past problematic sexual behavior." The report also appears to minimize Justin's autism diagnosis and states that Justin does not have "significant symptoms" of autism. Finally, the report states that Edenwald "continues to recommend that it is in Justin's best interests to be in a setting with increased external controls, greater supervision and more specified clinical treatment that targets his problematic sexual behavior."
The Court expressed consternation over the fact that between the New York City's child welfare system ACS, the New York State Office of Mental Health and the New York State Office For People With Developmental Disabilities, that there was no system that had a placement for Justin. Counsel for ACS explained to the Court that if the Court discharged Justin to the care of ACS to reside in Edenwald, that Edenwald would have to find a way to service him until ACS is able to locate a "more suitable placement." The attorney for the child opposed Justin being moved from the hospital to Edenwald, only to be moved a second time once a more appropriate placement has been located. Dr. Harrigan expressed concern that moving Justin from one place to another over a short period of time is "not going to give you the best result that you're looking for in terms of him managing in an environment" because he is never given a chance to adjust, and that "change is change for a child who has [Justin's] disabilities and create[s] more problems." Given Edenwald's request to have Justin placed elsewhere, and their inability to meet Justin's needs, the Court did not see how releasing Justin to the care of ACS to reside in Edenwald would serve Justin's best interests. The Court directed ACS to continue to search for in and out of state placements for Justin.
At this point, Justin has two promising placement prospects-Woods Services in Langhorne, Pennsylvania, and The Whitney Academy in East Freetown, Massachusetts. At the December 21, 2017 court date, counsel for ACS reported that Woods Services refused to accept Justin because of the pending juvenile delinquency charges, and the facility was concerned about him having access to vulnerable peers. Woods Services did indicate that they would be willing to reconsider Justin's application if they had a psychosexual evaluation that indicated a lower risk. In response to this, the attorney for the child retained an expert, Dr. Keith Cruise, to conduct an independent evaluation of Justin. Such evaluation has been completed and has been sent to Woods Services for their reconsideration of Justin's application.
On February 7, 2018, counsel for ACS indicated that Justin has been accepted by the Whitney Academy, however Justin cannot actually be placed there until a contract with ACS is finalized and the Interstate Compact on the Placement of Children (hereinafter ICPC) is approved. Counsel indicated that this is a process that could take another five weeks to finalize. Based on this information, the Presentment Agency maintained their position that they are still not prepared to withdraw the pending juvenile delinquency proceedings. Notably, Dr. Harrigan reported to the Court that a Whitney Academy representative made inquiries about Justin's prior sexual behavior during the course of her interview with Justin on January 18, 2018. Also, on January 29, 2018, counsel for ACS reported that the facility wanted additional information about the pending delinquency cases. Justin's pending delinquency cases are unequivocally serving as an impediment to him being accepted into an appropriate ACS placement, and have unduly delayed Justin's ultimate receipt of treatment and services. Furthermore, it is not clear to this Court that the available bed for Justin at Whitney Academy will be held pending the contract and ICPC approval. Dr. Harrigan again reported that Justin is "doing okay" and that he is stable, but he does not belong in a hospital. Meanwhile, Justin has no place else to go. We find ourselves in a vicious cycle on this case, and as F.C.A. § 315.2 simply puts it, continuing the case results in injustice.
Furthermore, continuation of the delinquency proceedings is not necessary for the protection of the community. Justin is the subject of a voluntary placement proceeding and he will be placed in the custody of the Administration for Children's Services where he will receive treatment and supervision. Permanency hearings will need to be done pursuant to the Voluntary Placement document at least every six months, and the Court will have the jurisdiction to enter orders to ensure that Justin receives the appropriate services, which in turn will benefit the community at large. Having considered each of the factors set forth in Family Court Act § 315.2, the Court finds that dismissal of the three petitions is warranted as a matter of judicial discretion, as the circumstances of this case clearly demonstrate that a continuation of these proceedings would serve no useful purpose and would result in an injustice. The purpose of a juvenile delinquency proceeding is rehabilitation and the protection of the community, not punishment of the youth. See Matter of Justin L. , supra ; see also Matter of Jared J.P. , 42 Misc 3d 954 (Dutchess County Family Court 2013).
The Court will now address the attorney for the child's motion seeking a dismissal of the three pending petitions based on the doctrine of res judicata. See CPLR § 3211(a)(5). The attorney for the child contends that pursuant to CPLR § 3211(c), the Court may treat the motion as one for summary judgment, whether or not issue has been joined. Issue has clearly not been joined here, and the Court has not produced Justin for any purpose for the last seven months. See Matter of Justin L. , supra (recounting that on June 16, 2017, Justin was produced in Kings County Family Court, became extremely distressed in the waiting area, and repeatedly banged his head on the wall and asked a court officer to shoot him with his gun, which resulted in Justin being taken to the hospital on an emergency basis). CPLR § 3211(c) further provides that either party can submit evidence that could properly be considered on a motion for summary judgment pursuant to § 3211(a)(5). The attorney for the child attaches the Court's order of October 12, 2017, finding that the respondent will continue to be incapacitated for the foreseeable future under F.C.A. § 322.2(5)(d), as evidence in support of the motion to dismiss.
The doctrine of res judicata precludes the re-litigation of matters that were already litigated. See Matter of Antonio U. , 19 Misc 3d 1113(A) (Kings County Family Court 2008) (concluding that res judicata barred ACS from litigating allegations in a second neglect petition where the allegations in the second petition involved incidents that took place prior to the date the first neglect petition was dismissed with prejudice; Court found that a subsequent proceeding may not be used to relitigate matters that should have been litigated in a prior proceeding). Generally, once a claim is brought to a final conclusion, all other claims arising out of the same transaction are barred, even if based on a different theory or seeking a different remedy. See Parker v. Blauvelt Volunteer Fire Co. , 93 NY2d 343 (1999). Once a party has been afforded a full and fair opportunity to litigate a particular issue, that same party may not be permitted to do so again. Matter of Antonio U., supra . See also Mary SS. v. Charles TT. , 209 AD2d 830 (3rd Dep't 1994) (petitioner was foreclosed by the doctrine of res judicata from pursuing subsequent paternity petition where an order of filiation already named another individual as the father).
The Presentment Agency opposes dismissal on res judicata grounds arguing that the respondent's capacity could improve at any time and that another "independent disinterested psychiatrist" should be enlisted by the Court to address the issue of the respondent's current capacity. The Court is not persuaded by this argument. It has already been determined that Justin's capacity will not improve due to the nature of his cognitive disabilities.
On October 12, 2017, Dr. Fatema Alam, Justin's treating and primary psychiatrist at New York City Children's Center Queens Campus, testified that Justin carries a diagnosis of mental retardation and that his IQ is 61, which is "very low." She further testified that Justin has a diagnosis of autism, mental retardation and ADHD, and has difficulty understanding what is going on around him. Dr. Alam indicated that she has attempted to address the delinquency charges with Justin "multiple times" since he entered the facility but that she has "never" been able to engage him with this conversation. Dr. Alam further stated that Justin does not know or understand why he is in the hospital. Dr. Alam explained that Justin does not understand why he needs medication, and that he constantly asks "why do I have to do that" and she needs to explain it to him "again and again, every time." She further testified that he is no longer in need of psychiatric hospitalization because he is not suicidal, psychotic or homicidal.
Dr. Alam recommended a residential treatment center for Justin because that type of placement would give him the supervision and structured environment that he needs. Counsel for OMH contended that Justin would not regain capacity in the foreseeable future because of his IQ and that it would be "futile" to try to restore his capacity. The Court gave all counsel an opportunity to ask Dr. Alam questions with regards to whether or not there is a substantial probability that Justin will continue to be incapacitated for the foreseeable future. When the Presentment Agency asked Dr. Alam if she felt that Justin could continue to improve in his behavior through regular meetings with the psychiatrist, Dr. Alam answered: "[b]ehavior-wise, but capacity no because of low IQ. Especially kids with autism." She went on to state that children with autism learn to do the same thing again and again every day and that they learn to do a routine, and that is why Justin has learned to behave while in the hospital and has learned to follow direction. The Court then clarified and asked the following questions:
The Court: Dr. Alam, just so I understand, you don't believe that there can be any improvements in his mental capacity?
Dr. Alam: That's correct.
The Court: Why is that?
Dr. Alam: Due to his low IQ.
The Court further asked Dr. Alam if there was any intervention that would improve Justin's IQ and she responded that "IQ doesn't really improve." The Presentment Agency did not take a position on whether or not there is a substantial probability the respondent will continue to be incapacitated for the foreseeable future.
Moreover, as the Court already noted in its original decision finding that Justin is an incapacitated person under F.C.A. § 322.1(1), see Matter of Justin L. , supra , two qualified psychiatric examiners previously determined that Justin did not understand and/or appreciate the nature and seriousness of the charges against him, the nature and/or purpose of a trial, the roles and functions of various court personnel, and/or the potential consequences of the current proceedings. They further concluded that Justin did not understand the concept of guilt, that Justin's cognitive abilities were in the "extremely low" range, and that Justin's prognosis is poor and therapeutic interventions are unlikely to significantly improve his functional skills. Id. The reports of these psychiatric examiners were consistent with the report of Dr. Alam.
As stated, the Presentment Agency was already given a full opportunity to participate at the hearing to determine whether Justin will be incapacitated for the foreseeable future. Counsel asked questions of Dr. Alam and chose not to take a definitive position on the incapacity issue. If the Presentment Agency is unsatisfied with the result, the proper recourse is to appeal the result, rather than attempt to relitigate the issue. Matter of Antonio, supra . The Court also finds Matter of Jack T. , 98 Misc 2d 16 (Kings County Family Court 1978) to be instructive in the instant case. Jack T . involved three juvenile delinquency proceedings, where two incidents occurred on one date and the third incident occurred over seven and a half months after. Petitions for the first two incidents were filed on the same day. A third petition was not filed until almost eight months later. Psychiatrists examined the respondent and found that he lacked mental capacity to stand trial due, in part, to mild mental retardation. The Family Court found the respondent incompetent to stand trial on the first two petitions. The same two psychiatric reports were introduced into evidence with regards to the third petition, and the respondent was also found incompetent to stand trial on the third petition as well.
In the instant matter, the Court notes that all juvenile delinquency petitions were filed within six months of each other. On more than one occasion, the Court has asked the Presentment Agency what purpose is served by proceeding on the pending delinquency petitions, especially when the end result would inevitably be the same. If the proceedings were to continue, and the Court were to arraign Justin on the pending petitions, the Court would be inclined to adopt the finding of incapacity that has already been made, and that once the Court finds that the respondent is an incapacitated person, the statute requires the Court to determine whether there is probable cause to believe that the respondent committed a crime. See F.C.A. § 322.2(3). The attorney for the child has indicated that she would again waive a probable cause hearing and again consent to a finding that there is probable cause to believe that the respondent committed the two felonies and one misdemeanor, which would require the immediate dismissal of the misdemeanor and trigger the commitment to OMH or OPWDD. Having the proceedings play out again in this fashion does not make any reasonable sense and is contrary to the best interests of Justin, especially here where the Court has been made profoundly aware that neither state agency has an appropriate placement for Justin. Moreover, as mentioned above, having the uncertainty of the pending delinquency petitions serves as a barrier to Justin being accepted into an appropriate placement. Accordingly, all pending juvenile delinquency petitions are dismissed.