IN THE MATTER OF L.L., A JUVENILE (FJ-12-0992-19, FJ-12-0835-19 AND FJ-12-0763-19, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0086-20T4
STATE OF NEW JERSEY,
IN THE INTEREST
OF L.L., a juvenile.
_______________________
Submitted December 16, 2020 – Decided January 12, 2021
Before Judges Alvarez and Sumners.
On appeal from the Superior Court of New Jersey,
Family Part, Chancery Division, Middlesex County,
Docket Nos. FJ-12-0992-19; FJ-12-0835-19; FJ-12-
0763-19.
Tyler Dougherty argued the cause for appellant L.L.
(Rutgers Criminal and Youth Justice Clinic, attorneys;
Tyler Dougherty, on the briefs).
Joie D. Piderit argued the cause for respondent
(Yolando Ciccone, Middlesex County Prosecutor,
attorney; Joie D. Piderit, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
L.L. appeals the Family Division's July 24, 2020 order denying without
prejudice his motion to modify his commitment to the Juvenile Justice
Commission (JJC). L.L. contends that due to his medical condition – congenital
heart defect, high blood pressure, asthma, amplified musculoskeletal pain
syndrome (AMPS), and seizure disorder – he should be immediately released
from custody to mitigate the threat posed to him by COVID-19 and to allow him
to treat his AMPS. We affirm.
Nineteen-year-old L.L.'s extensive involvement with the criminal justice
system culminated in his commitment to the JJC on June 14, 2019 for concurrent
sentences of two years following guilty pleas to violation of probation (VOP),
N.J.S.A. 2C:45-3(a)(4) and 2C:45-3(b), on FJ-12-763-19, and third-degree
receiving stolen property (a motor vehicle), N.J.S.A. 2C:20-7(a), on FJ-12-992-
19, and a consecutive eighteen-month sentence for third-degree theft of movable
property (a motor vehicle), N.J.S.A. 2C:20-3(a), on FJ-12-835-19.1 His medical
condition was made known to the court at sentencing.
Approximately a year after his commitment, L.L moved for "immediate
release from [JJC] custody in order to ensure his medical safety." L.L.
contended he experienced delays in getting his inhaler from the nurse on duty.
1
L.L prior delinquency adjudications were for: fourth-degree aggravated assault
on a school official, N.J.S.A. 2C:12-1(b)(5)(d); disorderly persons criminal
mischief, N.J.S.A. 2C:17-3(a); VOP and third-degree aggravated assault under
N.J.S.A. 2C:12-1(b)(7); and VOP and third-degree aggravated assault on a care
worker, N.J.S.A. 2C:12-1(b)(5)(k). (Da70-72).
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He also maintained the dormitory arrangements have him sleeping in a large
room with about fourteen other residents, increasing the risk of COVID-19
infection.
At the July 21, 2020 motion hearing, L.L.'s counsel contended his medical
ailments required regular visits with outside medical specialists, causing
"significant issues with [his] care in terms of getting access to . . . specialists,
especially during the COVID-19 epidemic." In support, affidavits and
declarations from various physicians generally asserted that residents in
detention facilities, such as L.L., are at risk for COVID-19 outbreaks. Dr. Noel
Bansil, L.L.'s pediatrician, noted in a brief April 28, 2020 letter, that "[t]he
current pandemic of COVID-19 has put certain population groups a[t] a high
risk for infection . . . [L.L.] with all his pre-existing conditions is definitely
susceptible. It is without any doubt that he will be safer at home." Dr. Vikram
Bhise, Chief of the Division of Child Neurology and Neurodevelopmental
Disabilities at Robert Wood Johnson University Hospital, who has treated L.L.'s
AMPS since 2012, wrote a May 12, 2020 letter to the court recommending that
L.L. enter an AMPS rehabilitation program at Children's Specialized Hospital
in New Jersey or Children's Hospital of Philadelphia that is only available for
persons under twenty-one years old. According to Dr. Bhise, due to lengthy
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wait times, L.L. "may not be able to access the program if he is released in early
2022" which could "negatively affect" him for the rest of his life. The doctor
stated treatment of L.L.'s "AMPS would be better met if he were able to access
these services." L.L.'s mother certified that in the event of his release, he would
live with her in Pennsylvania where he would have his own bedroom and
bathroom.
In the five to six months leading up to his motion, L.L. did not have any
disciplinary infractions and was transferred to a medium security facility due to
his good behavior. Prior to that, L.L. had received seven disciplinary violations,
according to the State.
The State presented a May 19, 2020 certification of Jennifer LeBaron,
Ph.D., Acting Executive Director of the JJC, attesting that extraordinary
measures have been taken to address COVID-19 issues. Dr. LeBaron explained
that the JJC provided "universal testing of its staff and residents . . . daily
temperature screening and masks for all residents; temperature checks and face
masks for anyone entering a facility; enhanced cleaning and sanitizing
protocols; reduced person-to-person contact; and quarantining of residents who
test positive, among other steps."
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Three days after the hearing, the court issued an order and written opinion
denying L.L.'s motion to be released. L.L. appealed.
About a week before appellate argument, L.L. moved under Rule 2:5-5(b)
to supplement the record to include his updated medical condition and treatment
and data reflecting increased COVID-19 infection rates at JJC facilities. This
information was not available at the trial court's hearing. We granted the motion.
In a December 4, 2020 letter, Dr. Bhise contended that based on his
November 13, 2020 in-person evaluation of L.L., he learned the JJC had stopped
giving L.L. his gabapentin medication contrary to his April 2020
recommendation to increase the medication's dosage. Dr. Bhise renewed his
recommendation for L.L.'s participation in the AMPS rehabilitation program and
reported that his staff has "made several attempts to communicate with the [JJC]
[r]esidential staff to help facilitate an appointment to no avail." Defendant
contends that between the trial court's July 21, 2020 hearing and December 6,
2020, an additional twenty-four residents tested positive for COVID-19, an
approximately ninety-six percent increase, and an additional seventy-five JJC
staff members tested positive for COVID-19, a three hundred percent increase.
In a December 15, 2020 letter, L.L.'s counsel advised that L.L. was moved
in August 2020, to a lower-security residential facility based on his good
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behavior. R. 2:6-11(e). In addition, counsel detailed that since October 30,
2020, L.L. has had three infirmary visits and two separate hospital visits due to
extreme facial swelling and chest pains. As the date of the letter, L.L. remained
in the infirmary.
Appellate review of a trial court's decision to modify a sentence is based
on an abuse of discretion standard. State ex rel. S.B., 333 N.J. Super. 236, 241,
246 (App. Div. 2000); see also In re Request to Modify Prison Sentences,
Expedite Parole Hearings, & Identify Vulnerable Prisoners, 242 N.J. 357, 390
(2020) (holding that "[a] reviewing court will not overturn a final agency action
unless it is arbitrary, capricious, or unreasonable."). Due to its special expertise,
we must "defer to the [family] court's determinations 'when supported by
adequate, substantial, credible evidence.'" New Jersey Div. of Child Prot. &
Permanency v. Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014) (citation
omitted). In accordance with N.J.S.A. 2A:4A-45(a), the Family Division retains
continuing jurisdiction over a juvenile's "commitment or incarceration" and can
"substitute any disposition otherwise available [under N.J.S.A. 2A:4A-43]."
Thus, it can "change or modify an order of disposition at any time." State in
Interest of R.M., 141 N.J. 434, 453 (1995) (quoting R. 5:24-6). The following
factors are considered to determine whether to commit a youth to JJC's custody:
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(1) The nature and circumstances of the offense;
(2) The degree of injury to persons or damage to
property caused by the juvenile's offense;
(3) The juvenile's age, previous record, prior social
service received, and out-of-home placement history;
(4) Whether the disposition supports family strength,
responsibility and unity and the well-being and physical
safety of the juvenile;
(5) Whether the disposition provides for reasonable
participation by the child's parent, guardian, or
custodian, provided, however, that the failure of a
parent or parents to cooperate in the disposition shall
not be weighed against the juvenile in arriving at an
appropriate disposition;
(6) Whether the disposition recognizes and treats the
unique physical, psychological, and social
characteristics and needs of the child;
(7) Whether the disposition contributes to the
developmental needs of the child, including the
academic and social needs of the child where the child
has intellectual disabilities or learning disabilities;
(8) Any other circumstances related to the offense and
the juvenile's social history as deemed appropriate by
the court;
(9) The impact of the offense on the victim or victims;
(10) The impact of the offense on the community; and
(11) The threat to the safety of the public or any
individual posed by the child.
[N.J.S.A. 2A:4A-43].
Our Supreme Court recently recognized that considering modification of
a juvenile's sentence due to "the ongoing COVID-19 crisis and its impact on the
individual's health condition" is consistent with N.J.S.A. 2A:4A-43(a)(4). In re
Request to Modify Prison Sentences, 242 N.J. at 370. In addition to other factors
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listed in N.J.S.A. 2A:4A-43, the youth's conduct while in JJC custody should be
considered. Id. at 395. In considering Rule 3:21-10(b), which sets forth the
procedure for reduction or change of an adult inmate's sentence due to illness or
infirmity, the Court noted inmates must present evidence of "a physical ailment
or weakness — and the increased risk of harm incarceration poses to that
condition[,]" and that "[a] generalized fear of contracting an illness is not
enough." In re Request to Modify Prison Sentences, 242 N.J. at 379.
In this appeal, L.L. argues the trial court's denial of his release request did
not consider his "unique and credible medical concerns" that are exacerbated
should he contact COVID-19, and it abused its discretion by not upholding the
juvenile code, not following order to show cause guidelines, and
overemphasizing L.L.'s past behavior. We disagree.
In considering a juvenile's sentence modification request, the Supreme
Court held that trial courts must conduct a balancing test by
evaluat[ing] the circumstances of each case. They may
consider all relevant factors raised by the parties,
including those set forth in N.J.S.A. 2A:4A-43(a) and
the youth's conduct while in JJC custody. Judges must
also consider health concerns brought on by COVID-19
and their impact on the particular resident's health
condition.
[Id., 242 N.J. at 395.]
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Here, the court incorrectly determined the sentence modification "inquiry
for juveniles is [a] three-fold" test. Nevertheless, consistent with In re Request
to Modify Prison Sentences, the court balanced the circumstances of L.L.'s
situation, finding the impact of COVID-19 health concerns on L.L.'s medical
condition did not "outweigh the factors set forth in N.J.S.A. 2A:4A-43(a) and
[L.L.'s] conduct while in JJC custody." The court found seven of the statute's
eleven factors were "applicable to [L.L.] and d[id] not support a modification of
disposition." The court found factor (1) weighed against L.L. as the "nature and
circumstances of the underlying offenses caused harm to victims and property
alike." N.J.S.A. 2A:4A-43(a)(1). The court found factors (2) and (9) were
established because L.L.’s actions impacted "the . . . victim because his car was
stolen, never returned, and utilized during a residential robbery" and that this,
too, tilted against L.L. N.J.S.A. 2A:4A-43(a)(2), (9). The court determined
factor (3) was satisfied based on L.L.’s "history of delinquency and behavior in
court programs and [case management order] services." N.J.S.A. 2A:4A-
43(a)(3). (Da7) As for L.L.'s six months of good behavior prior to the hearing,
the court found it was "an uncertain predictor to rely upon given the risk to
public safety" given his history of delinquency.
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The court determined L.L.'s health and safety have been properly
addressed by the JJC through monitoring and testing, and there was no indication
that his release would render him free from exposure to the virus. Yet the court's
finding that he is no safer at home than in JJC custody is not clear from the
record. While the court did not fully examine the nature of L.L.'s medical
vulnerability or provide particularized analysis of his condition in the context of
COVID-19, we suspect it is due to the shortcomings of L.L.'s proofs.
While Dr. Bhise recommends L.L.'s participation in the AMPS
rehabilitation program, he does not clearly state that L.L.'s condition will worsen
and affect his long-term health if he does not receive the treatment. The doctor
does not unequivocally represent that the program would be unavailable to L.L.
upon his release from JJC's custody. Dr. Bhise merely states that L.L. "may not
be able to access the program if he is released in early 2022" and he "may be
negatively affected for his lifetime if he is not able to access this program before
turning 21." And Dr. Bansil fails to explain how L.L. is in imminent danger of
deteriorating health due to the conditions at his JJC residence.
Given the lack of medical certainty that we look for in considering a
doctor's expert opinion, L.L., to date, has not presented proof that contracting
COVID-19 has increased the risk to his health. Even the supplemental
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information concerning the increased rate of the virus among JJC residents and
staff, together with his recent infirmary stays and hospital visits, do not alter our
thinking because there is no showing that L.L.'s health is at a greater risk. There
is no indication that an increase of COVID-19 infection has occurred where L.L.
is committed. And as the State contends, L.L.'s request is further weakened by
the fact that he was aware of the AMPS program well before his commitment,
but he did not take advantage of its benefits. 2 L.L. proffered no justification for
his delay in pursuing the treatment. Balancing the lack of proof that COVID-19
will exacerbate L.L.'s health, we see no undue emphasis on his history of
juvenile delinquency as L.L. argues. Such reliance is consistent with N.J.S.A.
2A:4A-43(a)(3) and In re Request to Modify Prison Sentences, 242 N.J. at 395.
While L.L. raises legitimate concern regarding JJC's failure to follow Dr.
Bhise's gabapentin prescription and delays in securing appointments and
treatment with specialists outside of his JJC residence, this does not persuade us
that the agency cannot care for his needs or that his health has been negatively
impacted due to COVID-19. That said, the parties may want to determine the
feasibility of L.L. participating in the AMPS program while in JJC's custody.
2
Dr. Bhise's February 2017 report recommended L.L. receive treatment for
AMPS.
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Based on the record before us, it is uncertain whether this can be reasonably
accomplished within the respective protocols of the program and the JJC. The
parties must decide if it is practicable.
In sum, the record shows that the court considered L.L.'s medical
condition and the impact of COVID-19 on his commitment to the JJC. In view
of our deferential standard of review, we see no reason to disturb the court's
"without prejudice" denial of the petition. L.L. has the right to renew his
application given the fluidity of his medical condition and COVID-19.
Affirmed.
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