(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 3, 1995 -- Decided August 7, 1995
HANDLER, J., writing for unanimous Court.
The Court considers the substantive and procedural standards to be applied in determining whether
a delinquent juvenile is developmentally disabled for the purposes of the Code of Juvenile Justice (Juvenile
Code). Pursuant to N.J.S.A. 2A:4A-44c(2) (the anti-incarceration provision), a juvenile who is
developmentally disabled cannot be incarcerated for delinquency.
On February 24, 1993, R.M., a juvenile, robbed a man at knife-point while riding on a train. At
R.M.'s dispositional hearing, evidence was presented in respect of mitigating and aggravating factors but
R.M.'s attorney did not argue that R.M. was developmentally disabled. After considering the evidence, the
court sentenced R.M. to four years' incarceration in Jamesburg. The court also ordered immediate
psychiatric assistance, including medication if necessary, and continued involvement of the Division of Youth
and Family Services (DYFS). The court retained jurisdiction, requiring that no placement occur without
prior court approval.
R.M. appealed the excessiveness of his sentence, arguing that the evidence adduced at the
dispositional hearing demonstrated that he was developmentally disabled, and therefore, was not subject to
incarceration. The Appellate Division found that it had not been established that R.M. was developmentally
disabled, noting that the issue was not raised at trial. Therefore, because the record was not sufficiently
developed to warrant a finding of developmental disability, the Appellate Division affirmed the judgment of
the trial court.
The Supreme Court granted R.M.'s petition for certification.
HELD: The evidence presented at R.M.'s dispositional hearing was not sufficient to indicate that R.M. is
developmentally disabled.
1. The anti-incarceration provision exempting developmentally-disabled juveniles from incarceration was
included in the Code of Juvenile Justice, passed in 1982. That provision describes juveniles who are
developmentally disabled as those defined in paragraph (1) of subsection a. of section 3 of the 1977 law,
N.J.S.A. 30:60-3(a) (1). However, substantial amendments to the statutory definition of developmental
disability were enacted after the passage of the anti-incarceration provision. In 1985, the Legislature enacted
the Division of Developmental Disabilities Act, and the definition of developmental disability was amended.
Section 3a(1) of that statute contains only one of the series of conditions that, together, constitute
developmental disability. (pp. 4-6)
2. The Court construes the anti-incarceration provision to refer to the developmental disability statute as
amended in 1985 to the extent that the later definition "corresponds in substance to" the earlier definition.
Further, it is determined from a comparative analysis in the 1977 and 1985 statute that paragraphs (1), (4)
and (5) of the current enactment corresponds substantially to the former definition. (pp. 6-10)
3. Insofar as the definition of developmental disability now focuses on functional limitations, the Legislature must have intended that that focus, presently contained in paragraph (4), be applied in the context of the prohibition against the incarceration of developmentally-disabled juveniles. Further, based on a careful
reading of the respective statutes and the relevant legislative history, the Court imputes to the Legislature the
intent to incorporate paragraphs (1), (4) and (5) with reference to the anti-incarceration provision; all were
intended to be used in the assessment of whether a juvenile is developmentally disabled within the meaning
of the anti-incarceration provision. Furthermore, the judicial understanding, interpretation, and application
of that statutory definition must acknowledge and reflect a strong and continuing legislative and
administrative concern to prevent the incarceration of juveniles suffering from developmental disabilities.
(pp. 10-14)
4. A court must impose on juveniles adjudicated delinquent only such dispositions as are consistent with the
purposes of the Juvenile Code and has broad authority to order a wide variety of dispositions. The
Legislature intended to coordinate, as much as possible, the operations of the courts with those of the
various administrative agencies of government having responsibility over such juveniles. Thus, existing
statutes and court rules authorize the family court to refer a delinquent juvenile who may be developmentally
disabled to the Division of Developmental Disabilities for evaluation, prior to ordering a disposition. The
legislative scheme clearly entrusts the DDD with primary responsibility for identifying and treating
developmentally-disabled juveniles. (pp. 14-18)
5. If evidence offered at the dispositional hearing suggests a substantial likelihood that a delinquent juvenile
is developmentally disabled, the court may order the DDD to handle the juvenile. Where the evidence does
not establish or strongly suggest a developmental disability, the family court may order any authorized
disposition, including incarceration. Although the juvenile has the burden of offering sufficient evidence to
warrant referral to the DDD, if the court is confronted with, or aware of, evidence that indicates a
substantial likelihood of developmental disability, it should, on its own initiative, order referral to the DDD
or request additional evidence from the parties. In response to a referral, the DDD shall submit to the
family court a report containing its determination concerning the condition of the juvenile. Both the State
and the juvenile are entitled to challenge the DDD's determination and seek a plenary hearing and the court
can hold a hearing to obtain additional evidence. Such hearing should require expert testimony on the issue
of the disability. Further, because of its expertise, the court should place substantial weight on the findings
and determination of the DDD. Nevertheless, the family court may reject the DDD's determination by
finding by a preponderance of the evidence that the DDD's diagnosis was incorrect. If the court finds that
the juvenile is developmentally disabled, the court shall undertake to determine an appropriate disposition
other than incarceration. (pp. 18-21)
6. The family court has the authority to re-evaluate the juvenile and reconsider the disposition. The family
court retains jurisdiction over delinquent juveniles and has the power to recall cases previously decided and
to modify dispositions previously ordered. (pp. 21-22)
7. Because R.M. did not introduce evidence of functional limitations sufficient to warrant referral to the
DDD for evaluation and a determination of eligibility, the Court is unable on this record to determine that
there is sufficient evidence to indicate that R.M. is developmentally disabled. However, because the criteria
for determining whether a developmental disability exists are not susceptible of precise proof or simplistic
evaluation, the Court is reluctant to conclude on this record that R.M. cannot satisfy the statutory standard.
Therefore, R.M. may petition the family court to exercise its retained jurisdiction to modify R.M.'s
disposition or to recall R.M. for purposes of supplementing the record and further evaluation. In support of
such a petition, R.M. may present evidence substantiating his claim of developmental disability. (pp. 22-26)
Judgment of the Appellate Division is MODIFIED and, as modified, AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in JUSTICE HANDLER's opinion.
SUPREME COURT OF NEW JERSEY
A-
50 September Term 1994
STATE OF NEW JERSEY
IN THE INTEREST OF
R.M., a juvenile.
Argued January 3, 1995 -- Decided August 7, 1995
On certification to the Superior Court,
Appellate Division.
Claudia Van Wyk, Deputy Public Defender, II,
argued the cause for appellant, R.M. (Susan
L. Reisner, Public Defender, attorney).
Steven E. Braun, Senior Assistant Prosecutor,
argued the cause for respondent, State of New
Jersey (Ronald S. Fava, Passaic County
Prosecutor, attorney).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Deborah T. Poritz,
Attorney General, attorney).
The opinion of the Court was delivered by
HANDLER, J.
In this case, a delinquent juvenile was sentenced to a term of incarceration which, on appeal, he contends was illegal. That contention requires the Court to consider the substantive and procedural standards to be applied in determining whether a delinquent juvenile is developmentally disabled for the purposes of the Code of Juvenile Justice. The issue is important because
a juvenile who is developmentally disabled cannot be incarcerated
for delinquency.
The Code of Juvenile Justice prohibits the incarceration of a juvenile who is developmentally disabled. N.J.S.A. 2A:4A-44c(2). That statutory prohibition is invoked in this case by a juvenile, R.M., who was sentenced to a term of incarceration for offenses committed on February 24, 1993.
On that day, R.M. approached a passenger on a train and asked him if he had any change. When the passenger stated that he did not, R.M. displayed a large hunting knife that he wore on his waistband. The passenger showed R.M. that he only had three one-dollar coins, two quarters, a nickel, and a few pennies. R.M. next asked to see what was in the passenger's bag, and the passenger showed R.M. that the bag contained only magazines. The passenger then gave R.M. the change. According to the victim, as the train pulled into the station, "[R.M.] informed me that this was my stop. When I arrived at my home, the police called me telling me they had apprehended the man. They took me to Hoboken station where I identified the man."
R.M. was charged in the Family Part of the Chancery Division of the Superior Court (hereinafter sometimes referred to as the "family court") with acts that, if committed by an adult, would constitute first degree robbery, in violation of N.J.S.A. 2C:15-1, third degree possession of a weapon for an unlawful purpose,
in violation of N.J.S.A. 2C:39-4d, which was later amended to
fourth degree unlawful possession of a weapon, in violation of
N.J.S.A. 2C:39-5, and receiving stolen property, in violation of
N.J.S.A. 2C:20-7.
The State agreed to withdraw its motion seeking the waiver
of juvenile court jurisdiction and the transfer of the
prosecution to the adult court in return for R.M.'s admission to
acts that constituted robbery and possession of a weapon. R.M.
admitted that he possessed a knife and committed a robbery with
that knife. The family court accepted the plea and the
withdrawal of the waiver motion, and dismissed the remaining
charges.
At the dispositional hearing, evidence was presented on
mitigating and aggravating factors. Defense counsel did not
argue, however, that R.M. was developmentally disabled. After
considering the evidence, the court sentenced R.M. to four years'
incarceration in Jamesburg. Additionally, following defense
counsel's recommendation, the court ordered immediate psychiatric
assistance, including medication if necessary, as well as the
continued involvement of the Division of Youth and Family
Services (DYFS). The court stated that the involvement of DYFS
was necessary to implement the "re-entry program" proposed by
defense counsel. Finally, the court retained jurisdiction,
requiring that no placement occur without prior court approval.
R.M. filed an appeal limited to the excessiveness of the
sentence pursuant to Rule 2:9-11. The arguments on the appeal
focused on the question of whether the evidence adduced at the
dispositional hearing demonstrated that R.M. was developmentally
disabled, and therefore not subject to incarceration. The
Appellate Division determined that "[i]t has not been established
that defendant is developmentally disabled," and, noting further
that "[t]his issue was not raised in the trial court," concluded
that "the record is not sufficiently developed" to warrant a
finding of developmental disability. Accordingly, it affirmed
the judgment of the trial court.
We granted the juvenile's petition for certification.
137 N.J. 166 (1994).
The provision exempting developmentally-disabled juveniles from incarceration, N.J.S.A. 2A:4A-44c(2), was included in the Code of Juvenile Justice (Code) that was passed in 1982. L. 1982, c. 77; N.J.S.A. 2A:4A-20 to -49. That provision states that "[t]he following juveniles shall not be committed to a State correctional facility: . . . (2) Juveniles who are developmentally disabled as defined in paragraph (1) of subsection a. of section 3 of P.L.1977, c. 82 (C. 30:6D-3a(1))."
The reference in the Juvenile Code to paragraph 3a(1) of the 1977 law introduces some ambiguity into the question of the definition of developmental disability, because substantial amendments to the statutory definition of developmental disability were enacted after the passage of the Juvenile Code
provision barring the incarceration of developmentally-disabled
juveniles. Thus, paragraph 3a(1) of the current statute
reflecting those amendments contains only a small part of the
present definition of developmental disability. The earlier
statute, L. 1977, c. 82, § 3a; N.J.S.A. 30:6D-3a (since amended),
presented a much larger part of the definition in its paragraph
(1). It defined a developmental disability to mean a disability
of a person which
(1) is attributable to:
(a) mental retardation, cerebral palsy,
epilepsy or autism;
(b) any other condition found to be
closely related to mental retardation because
such condition results in impairment of
general intellectual functioning or adaptive
behavior similar to impairment resulting from
mental retardation or which requires
treatment and services similar to those
required for mental retardation; or
(c) dyslexia resulting from a disability
described in subparagraphs (a) and (b);
(2) originates before such person attains age
18;
(3) has continued or can be expected to
continue indefinitely; and
(4) constitutes a substantial handicap to
such person's ability to function normally in
society[.]
In 1985, the Legislature enacted the Division of
Developmental Disabilities Act. L. 1985, c. 145; N.J.S.A. 30:6D-23 to -32. That Act amended the definition of developmental
disability to read as follows:
a. "Developmental disability" means a severe,
chronic disability of a person which:
(1) is attributable to a mental or physical
impairment or combination of mental or
physical impairments;
(2) is manifest before age 22;
(3) is likely to continue indefinitely;
(4) results in substantial functional
limitations in three or more of the following
areas of major life activity, that is, self-care, receptive and expressive language,
learning, mobility, self-direction and
capacity for independent living or economic
self-sufficiency; and
(5) reflects the need for a combination and
sequence of special inter-disciplinary or
generic care, treatment or other services
which are of lifelong or extended duration
and are individually planned and coordinated.
Developmental disability includes but is not
limited to severe disabilities attributable
to mental retardation, autism, cerebral
palsy, epilepsy, spina bifida and other
neurological impairments where the above
criteria are met[.]
Paragraph 3a(1) of the present statute, thus, contains only one of the series of conditions that, together, constitute developmental disability.
Two issues of interpretation are posed by this sequence of statutory definitions. First, we must decide whether to continue to use the old definition of developmental disability in its entirety. Second, if we decide not to do so, we must decide whether to use the new definition in its entirety, or instead use only that small portion of the definition contained in the present version of paragraph 3a(1).
In resolving the first question, we are guided by the rule
of statutory construction governing references to revised
statutes, N.J.S.A. 1:1-3.3. That rule provides that
[a]ny reference in any statute to any other
statute, which is revised by a revision law,
shall, after the effective date of such
revision law, be construed to be a reference
to the section or sections, if any, of the
revision law corresponding in substance to,
or superseding, the section or sections of
the statute so revised and so referred to.
Applying that rule of construction, we construe N.J.S.A. 2A:4A-44c(2) to refer to N.J.S.A. 30:6D-3a as amended in 1985 to the
extent that the later definition "corresponds in substance to"
the earlier definition.
The second question relates to the extent of inclusion of
the new definition's terms within the reference of the anti-incarceration provision. As noted, N.J.S.A. 2A:4A-44c(2), when
enacted in 1982, referred only to that portion of the definition
of developmental disability contained in paragraph (1) of
subsection a. of section 3 of the 1977 law. A substantial part
of the definition that was previously contained in paragraph (1)
was transferred by the 1985 amendment to other paragraphs, most
notably paragraphs (4) and (5). We must decide, thus, which
section or sections of N.J.S.A. 30:6D-3a, as it now reads,
correspond in substance to, or supersede, N.J.S.A. 30:6D-3a(1) as
it read in 1982.
Subsection (b) of paragraph (1) of the 1977 statute
described a developmental disability as a condition "which
requires treatment and services similar to those required for
mental retardation[.]" Paragraph (5) of the 1985 statute
contains the analogous provision: "a combination and sequence of
special inter-disciplinary or generic care, treatment or other
services which are of lifelong or extended duration and are
individually planned and coordinated." Thus, the current
paragraph (5) essentially describes in greater detail the
"treatment and services" that persons with developmental
disabilities require, thereby corresponding in substance to the
earlier statute. Further, paragraph (5), as it now reads, lists
some sources of developmental disability, including mental
retardation, autism, cerebral palsy, epilepsy and spina bifida.
All but the last of these were referred to in subsection (a) of
paragraph (1) of the former statute as conditions to which
developmental disabilities may be attributable.
Paragraph (4) of the current definition likewise corresponds
to a portion of the former paragraph (1). Paragraph (4)
describes a developmental disability as one that "results in
substantial functional limitations in three or more . . . areas
of major life activity. . . ." Subsection (b) of paragraph (1)
of the former definition identified developmental disability as a
condition that "results in impairment of general intellectual
functioning or adaptive behavior similar to impairment resulting
from mental retardation. . . ." Paragraph (4) therefore can be
seen as elaborating on the "impairment" referred to in the
original statute and as replacing a focus on medical diagnosis
with a focus on functional limitations.
The current paragraph (3) specifies that a genuine
developmental disability must be likely to continue indefinitely.
That condition bears a strong resemblance to that found in former
paragraph (3). Because the former paragraph (3) was not included
in the reference in the anti-incarceration provision, the current
paragraph (3), in itself, likewise is not included. However,
inclusion of current paragraph (3) would be redundant in any case
inasmuch as current subsection a., which clearly is included in
the reference, expressly specifies that the disability be
chronic. Thus, the requirement contained in paragraph (3) that
the condition be likely to continue indefinitely remains relevant
insofar as it explains the meaning of the term "chronic." We
note, finally, that current paragraph (2) need not be
incorporated in the definition. Because N.J.S.A. 2A:4A-44c(2)
prohibits the incarceration of juveniles who are developmentally
disabled, that paragraph's requirement that the disability
manifest itself before age twenty-two is superfluous in this
context.
We thus determine from a comparative analysis of the 1977
and 1985 statutes that paragraphs (1), (4) and (5) of the current
enactment correspond substantially to the former definition, and
all were intended to be used in the assessment of whether a
juvenile is developmentally disabled within the meaning of
N.J.S.A. 2A:4A-44c(2). See State in the Interest of A.B.,
214 N.J. Super. 558, 561-62 n.2 (App. Div. 1987) (concluding that
N.J.S.A. 2A:4A-44c should be construed to incorporate N.J.S.A.
30:6D-3a as amended in 1985, and, further, that "the part of
N.J.S.A. 30:6D-3a 'corresponding in substance to' this statute as
it read in 1982 is not limited to the current paragraph (1) but
rather includes at least part of paragraph (5) and perhaps also
part or all of paragraph (4)").
Our inclusion of so much of the new definition within the
reference of the anti-incarceration statute gives force, in this
context, to the Legislature's intention in 1985 to refocus the
definition of developmental disability. That intention is
strongly inferable from the history surrounding the enactment of
the Division of Developmental Disabilities Act in 1985. See
Statement of the Senate Institutions, Health and Welfare
Committee, S. 1826, 201st Leg., 2nd Sess. at 1 (June 18, 1984).
In 1982, the same year that the Legislature enacted the Code of
Juvenile Justice, the New Jersey Developmental Disabilities
Council (Council) issued its report, Redirection of the Division
of Mental Retardation to a Division of Developmental Disabilities
(1982) [hereinafter Report].See footnote 1 The Council, regarded as "the
moving force behind the passage of the 1985 Act," T.L. v.
Division of Developmental Disabilities,
243 N.J. Super. 476, 490
(App. Div. 1990), explained in its 1982 Report that the
definition of developmental disability had evolved from a focus on medical diagnosis to a new focus on functional limitations. Report at 3. The Council cited empirical data indicating that "a developmental disability[,] regardless of diagnosis, most often implies multiple functional limitations requiring special and similar services throughout childhood and adult life." Ibid. That focus on functional limitations resulted from the recognition of common service needs shared by all developmentally-disabled individuals, who endure "long term, substantial (and often multiple) handicaps which occur early in life."See footnote 2 Id. at 4. The Council recommended adopting the definition of the American Association on Mental Deficiency in order to develop a program approach emphasizing the common needs of the population to be served. Id. at 24 (citing and quoting
American Association on Mental Deficiency, Manual on Terminology
and Classification in Mental Retardation (Special Publication
Series No. 2, 1973)).
That the Legislature intended by the 1985 enactment to amend
the definition of developmental disability used in the Juvenile
Code is further evidenced by the parallel concerns considered and
expressed about the treatment of the developmentally disabled in
the juvenile justice system. It was widely recognized that the
prohibition on the incarceration of developmentally-disabled
delinquent juveniles arose from "a concern that correctional
institutions were being used as dumping grounds for offenders
with serious mental limitations and/or other developmental
handicaps." Juvenile Delinquency Disposition Commission, The
Impact of the N.J. Code of Juvenile Justice: First Annual Report
81 (1986) [hereinafter Impact of the Code]; see Task Force on the
Developmentally Disabled Offender, Dealing with the
Developmentally Disabled Juvenile Offender: A Special Report to
the Legislature 1 (approximately 1989) [hereinafter Special
Report]. "Our State has a `strong moral and legal commitment to
care for the handicapped.' N.J.S.A. 2A:4A-44c(2) reflects this
commitment. In this context, it is difficult to contemplate the
incarceration, without care, of an autistic or a severely
retarded child." State in the Interest of A.B.,
109 N.J. 195,
200 (1988) (quoting New Jersey Ass'n for Retarded Citizens, Inc.
v. New Jersey Dep't of Human Services,
89 N.J. 234, 249 (1982)).
The statute prohibiting the incarceration of developmentally-disabled juveniles arose out of concern for their plight when
jailed. See Impact of the Code, supra, 81-82, 95 (concluding
that "many seriously impaired, multiply handicapped, low I.Q.
juveniles with adaptive problems are being committed to state
correctional facilities," and further noting that although the
Department of Corrections has attempted to provide services for
those juveniles, "the Department . . . lacks the resources and
the mandate to provide [the necessary] care," and observing that
"[d]isabled offenders are prone to be targets in [correctional]
settings and clearly need special treatment"). See also Ellis
and Luckasson, Mentally Retarded Criminal Defendants,
53 Geo.
Wash. L. Rev. 414, 479-80 (1985) (noting that "'[m]entally
retarded persons meet with unremitting hardships in prison.'
They are more likely to be victimized, exploited, and injured
than other inmates").
Insofar as the definition of developmental disability now
focuses on functional limitations, we determine that the
Legislature must have intended that that focus, presently
contained in paragraph (4), be applied in the context of the
prohibition against the incarceration of developmentally-disabled
juveniles. Further, based on a careful reading of the respective
statutes and the relevant legislative history, we impute to the
Legislature the intent to incorporate paragraphs (1), (4) and (5)
within the reference of N.J.S.A. 2A:4A-44c(2). We conclude,
further, that the judicial understanding, interpretation, and
application of that statutory definition must acknowledge and
reflect the strong and continuing legislative and administrative
concern to prevent the incarceration of juveniles suffering from
developmental disabilities.
A critical problem facing the juvenile justice system is the difficulty in identifying developmentally-disabled juveniles. The system "is poorly equipped to identify or diagnose a developmental disability." Special Report, supra, at 8. According to the Task Force, "[c]ourt intake personnel indicate that they are not really equipped to detect a developmental disability and individuals are uncertain who has responsibility to do what. Judges say that they are unable to determine who is or is not classified as developmentally disabled." Id. at 6. Furthermore, determining whether an individual is developmentally disabled can be a difficult task even for those with expertise in the field. "Experts agree that there are many individuals who exhibit 'borderline' characteristics, but cannot actually be diagnosed as disabled or be eligible for services traditionally afforded to the developmentally disabled." Id. at 5.
The Legislature, by the 1985 Act, enacted measures designed in part to alleviate the problems of identification. Thus, the law not only amended the definition of developmental disability, but also established a Division of Developmental Disabilities (Division or DDD) in the State Department of Human Services, with the powers and duties of the former Division of Mental
Retardation assigned to it. N.J.S.A. 30:6D-28. The Director of
the Division has the authority to establish procedures for the
determination of eligibility for the services of the Director.
N.J.S.A. 30:6D-27b.
We take special note of the difficulties faced by courts
that would alone try to identify developmentally-disabled
juveniles, and of the existence of a state agency that has
professional competence and both regulatory authority and
administrative responsibility over eligible developmentally-disabled persons. In the proper administration of juvenile
justice, the issue of identification is crucial:
[proper identification] is the first step
toward remediation. It is unlikely that the
court can develop its own capacity to perform
this function. It is also unnecessary and
duplicative. Rather, responsibility for
dealing with the developmentally disabled
rests with . . . the New Jersey Department of
Human Services/Division of Developmental
Disabilities.
See also Juvenile Delinquency Commission, Juvenile Justice: Toward Completing the Unfinished Agenda 43 (1988) (noting concern of Governor's Committee on Children's Services Planning Mental Health Forum that juveniles with severe emotional problems might not be evaluated prior to sentencing and urging that juveniles be administered a diagnostic instrument that "would identify those in need of more in-depth evaluation"). Our exposition of the procedures to be followed in determining whether a delinquent
juvenile is developmentally disabled, and therefore not subject
to incarceration, is influenced by those circumstances.
When a juvenile has been adjudicated delinquent, the family
court conducts a dispositional hearing. N.J.S.A. 2A:4A-41. In
general terms, the court is bound to impose only such
dispositions as are "consistent with the purposes" of the Code of
Juvenile Justice, N.J.S.A. 2A:4A-24a, but the court possesses
broad authority to order any of a wide variety of dispositions.
Authorized dispositions include probation, counseling, community
service, incarceration, and commitment of the juvenile to an
appropriate agency. N.J.S.A. 2A:4A-43b. The pertinent statute
lists the factors that may guide the court in determining the
appropriate disposition for a juvenile adjudicated delinquent.
N.J.S.A. 2A:4A-43a(1) to (8). Among those factors are:
(3) The juvenile's age, previous record,
prior social service received and out-of-home
placement history;
(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 he has mental retardation or
learning disabilities; and
(8) Any other circumstance related to the
offense and the juvenile's social history as
deemed appropriate by the court.
Prior to ordering a disposition, the court can "refer the
juvenile to an appropriate individual, agency or institution for
examination and evaluation." N.J.S.A. 2A:4A-42a. Family court
rules allow the court to
refer the juvenile to an appropriate
individual, agency or institution on such
terms as may be appropriate for examination
and evaluation. . . . The court may also
confer and consult with such individuals and
agencies as may be appropriate to the
juvenile's situation and may convene a
predisposition conference to discuss and
recommend disposition.
In devising its plan for dealing both civilly and under the Code
of Juvenile Justice with developmentally-disabled juveniles, the
Legislature intended to coordinate as much as possible the
operations of the courts with those of the various administrative
agencies of government having responsibilities over such
juveniles. We conclude that existing statutes and court rules
thus authorize the family court to refer a delinquent juvenile
who may be developmentally disabled to the DDD for evaluation,
prior to ordering a disposition.
We understand that the Division's resources are presently in
short supply and subject to extraordinary demands. Moreover, in
the competition for the resources of the Division, delinquent
juveniles are likely to face special difficulties in getting
access to needed services. Governor's Advisory Council on
Juvenile Justice, Final Report at 80 (Dec. 30, 1994).
Nevertheless, the legislative scheme clearly entrusts to the DDD
primary responsibility for identifying and treating
developmentally-disabled juveniles. We must therefore consider
the circumstances under which the family court should refer a
juvenile to the DDD for an evaluation as a basis for an
appropriate disposition.
We now rule that if evidence offered at the dispositional
hearing suggests a substantial likelihood that a delinquent
juvenile is developmentally disabled, the family court may order
the Division to evaluate the juvenile. Where the evidence does
not establish or strongly suggest a developmental disability, the
family court may order any authorized disposition, including
incarceration if otherwise deemed appropriate.
We rule further that the juvenile has the burden of offering
sufficient evidence to warrant a referral to the Division.
Nevertheless, because the family court has a nondelegable
statutory duty to impose only a disposition that comports with
the Juvenile Code, N.J.S.A. 2A:4A-24a, if the court is confronted
with, or aware of, evidence that indicates a substantial
likelihood of developmental disability, it should, on its own
initiative, order a reference to the DDD or request the juvenile
or the State to proffer additional evidence in order to make an
informed threshold decision.
In response to a referral, the Division shall submit to the
family court a report containing its determination concerning the
condition of the juvenile. Both the State and the juvenile are
entitled to challenge the Division's determination and seek a
plenary hearing. See State v. Howard,
110 N.J. 113, 126-31
(1988) (noting in context of adult prosecution for serious sexual
offenses, that on receipt of report from Adult Diagnostic and
Treatment Center at Avenel finding that defendant's "conduct was
characterized by a pattern of repetitive, compulsive behavior,"
N.J.S.A. 2C:47-3a, defendant can demand that the sentencing court
hold a hearing at which defendant can challenge report). If it
appears to the family court that there are controverted facts or
that the evidence is incomplete, the court should hold a plenary
hearing to receive further evidence on the question of whether
the juvenile is developmentally disabled. At that plenary
hearing, it should require experts to provide evidence on the
issue of developmental disability. See, e.g., State in the
Interest of A.B., supra, 109 N.J. at 197 (referring to
conclusions of expert's reports).
Because the Division has acquired a certain expertise in the
identification of developmentally-disabled persons, the court
should place substantial weight on the findings and determination
of the Division. Nevertheless, because the family court alone is
responsible for determining the appropriate disposition under the
Juvenile Code, it bears the ultimate responsibility for the
determination of developmental disability. In order to reject
the DDD's determination, the court must find by a preponderance
of the evidence that the DDD's diagnosis was incorrect. Cf.
Howard, supra, 110 N.J. at 131 (requiring defendant to prove by
preponderance of evidence that he is not a repetitive and
compulsive sex offender to overcome contrary finding of Avenel
report).
If the court finds that the juvenile is developmentally
disabled, the court shall undertake to determine an appropriate
disposition other than incarceration. In that endeavor, the
court should require the Division, the parties, and such other
experts and agencies as the court deems helpful, to assist in the
formulation of a suitable treatment plan. See N.J.S.A. 2A:4A-42a; R. 5:24-2(a).
In the exercise of its sound discretion, the family court
may order any authorized disposition in such a case, except, of
course, incarceration. See N.J.S.A. 2A:4A-43b (listing
authorized dispositions). Among the alternatives to
incarceration that a court may consider is placement of the
juvenile with the Division. N.J.S.A. 2A:4A-43b(6); see N.J.A.C.
10:46-3.1(a)(4) (authorizing "a court having jurisdiction over a
minor" to make application to the Division for a determination of
eligibility for services as developmentally disabled).
Eligibility for the services of the Division is restricted to
persons who are "developmentally disabled pursuant to subsection
b. of this section and who [have] been declared eligible for
services provided by the division." N.J.S.A. 30:6D-25e;
N.J.A.C. 10:46-2.1(a). The Division has the power to "provide
services for eligible developmentally disabled persons by
identifying appropriate programs to meet their needs." N.J.S.A.
30:6D-27a. The court, however, must be satisfied that the
juvenile is amenable to the treatment and care available through
the Division in order to make such a disposition. The family
court may also consider as a possible disposition commitment of
the juvenile to the Department of Human Services' Division of
Youth and Family Services. N.J.S.A. 2A:4A-43b(5).
In view of the acknowledged complexity that surrounds the
identification and determination of a developmental disability,
we recognize that a juvenile may be subjected to incarceration if
the evidence is insufficient to establish a developmental
disability. If, however, it appears in such a case that the
evidence concerning the juvenile's condition could be further
clarified or supplemented so as to demonstrate a developmental
disability, the family court has the authority to re-evaluate the
juvenile and reconsider the disposition. The family court
retains jurisdiction over delinquent juveniles and has the power
to recall cases previously decided and to modify dispositions
previously ordered. Rule 5:24-5 provides in pertinent part:
(a) Mandatory Retention of Jurisdiction. The
court shall retain jurisdiction over every
action in which it has entered an order of
disposition for the duration of the
dispositional terms and conditions. . . . If
the disposition was an order of commitment or
incarceration the court may, during the
duration of that disposition, substitute any
other disposition otherwise available to it.
Family Part court rules further empower courts to "correct, change or modify an order of disposition at any time pursuant to law," and to effectuate that power, allow courts to entertain applications for post-disposition relief. R. 5:24-6. Indeed, in
this case, the family court did retain jurisdiction for purposes
of supervising any future placements of R.M. That power of
recall enables the family court to reconsider a disposition or to
require an evaluation of the juvenile in order to determine
whether there exists a developmental disability warranting a
change of disposition.
We must finally consider whether the evidence was sufficient to indicate a substantial likelihood that R.M. was developmentally disabled, and if so, whether the court abused its discretion in failing either to refer R.M. to the Division of Developmental Disabilities for an evaluation or to recall the parties for the purpose of conducting a further hearing to clarify or supplement the evidentiary record.
Because the specific question of whether R.M. is developmentally disabled was not raised at the dispositional hearing, the evidence did not directly address the criteria of developmental disability established by the statute. Instead, the evidence introduced at the hearing was intended more generally to show that R.M. suffers from a variety of social and intellectual deficits that tend to mitigate his offense.
In now claiming that he is developmentally disabled, R.M. relies substantially on the report of psychologist Dr. Frank J. Dyer. According to Dr. Dyer, R.M. is mildly retarded, perhaps autistic, and "a good candidate for psychiatric disability."
Educational records, generally, indicate that R.M.'s academic
achievement is low, and significantly low in certain respects.
However, other evaluators of R.M. have reached conflicting
conclusions. For example, the test results suggesting that R.M.
is mildly retarded are not corroborated by prior testing.
Although those prior evaluations do not support Dr. Dyer's
conclusion that R.M. is functioning in the mildly retarded range,
they may suggest organic impairment. The evaluations indicating
organic impairment, however, are themselves not uncontradicted.
One such evaluation, nevertheless, notes that R.M. continues to
exhibit perceptual deficits, that he is learning-disabled, and
that he may have other problems.
R.M. did present some evidence of deficits in adaptive
behavior. Dr. Dyer concluded that R.M. has very little potential
to succeed in employment, which may suggest that R.M. is limited
in the adaptive skill area of work (or in his capacity for
economic self-sufficiency). R.M.'s poor academic performance and
his learning disability also may suggest that he is limited in
the adaptive skill area of learning. R.M. additionally contends
that the record reveals questions about his ability to live
independently. Emergency psychiatric evaluations indicate that
R.M. is depressed and has suicidal tendencies, but it is unclear
whether such evidence suggests an inability to live
independently, or merely confirms his psychiatric diagnosis as
emotionally disturbed. Indeed, "[b]y June 16, 1992, DYFS
believed that R.M. was ready for independent living and [he] was
made to understand that within a short period of time he had to
obtain a job."
We are satisfied that the evidence does not establish a
developmental disability. State in the Interest of A.B., supra,
is instructive. The court in that case found that the evidence
presented at a plenary dispositional hearing was insufficient to
justify finding that the juvenile was developmentally disabled
within the meaning of N.J.S.A. 30:6D-3a and N.J.S.A. 2A:44c(2).
As the Court concluded,
Although the testimony adduced at the waiver
hearing revealed that A.B. suffers both from
a minimal brain dysfunction and from a low
intelligence quotient which places him in a
borderline category of intellectual
functioning, we are satisfied that the record
before the Family Part did not warrant a
finding of functional impairment in the
statutory sense of a "developmental
disability."
[A.B., supra, 109 N.J. at 197
(citation omitted).]
In this case, although there is some evidence suggesting
that R.M. functions in the mildly retarded range and may suffer
organic impairment, there was insufficient evidence and no
finding that R.M. was substantially functionally limited in three
or more areas of major life activity, and there was no evidence
or other indication that his disability required special care.
Cf. T.L. v. Division of Developmental Disabilities,
243 N.J.
Super. 476, 478-87 (App. Div. 1990) (reversing in civil
administrative proceedings determination of DDD that juvenile was
not developmentally disabled and eligible for services and
emphasizing quality and extent of expert testimony and evidence
demonstrating that juvenile was substantially functionally
limited, especially evidence of results of Critical Adaptive
Behaviors Inventory (CABI), "the standard DDD test for
determining an applicant's level of functioning"; noting also
that evidence was tailored to statutory criteria and that expert
found significant limitations in two areas, and that results of
CABI indicated significant limitations in at least four, and as
many as six, areas of major life activity).
We are confronted with a record that did not address the
statutory criteria for determining the existence of a
developmental disability, and R.M. did not introduce evidence of
functional limitations sufficient to warrant referral to the
Division for evaluation and a determination of eligibility. We
are unable, on this record, to determine that there is sufficient
evidence to indicate that R.M. is developmentally disabled.
However, because the criteria for determining whether a
developmental disability exists are not susceptible of precise
proof or simplistic evaluation, we are reluctant to conclude on
this record that R.M. cannot satisfy the statutory standard.
Accordingly, we hold that R.M. may petition the family court to
exercise its retained jurisdiction to modify R.M.'s disposition
or to recall R.M. for purposes of supplementing the record and
for further evaluation. R. 5:24-5 to -6. In support of such a
petition, R.M. may present evidence substantiating his claim of
developmental disability.
The judgment of the Appellate Division is modified, and we affirm that judgment as modified.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN,
GARIBALDI, STEIN, and COLEMAN join in JUSTICE HANDLER's opinion.
NO. A-50 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY
IN THE INTEREST OF
R.M., a juvenile.
DECIDED August 7, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 The Council is "the official state advisory body
appointed by the Governor to plan for and coordinate services to
developmentally disabled citizens of New Jersey." Report at 1.
Its members "are appointed by the Governor, and are either
representatives of state agencies serving developmentally
disabled persons, consumers of services (the disabled and parents
of disabled persons), or are otherwise concerned with services to
the developmentally disabled population in New Jersey." Id. at
5.
Footnote: 2 As the Council explained, there were in 1982
approximately 75,000 developmentally disabled persons in New
Jersey, and
[m]ore than half of these persons have a
primary diagnosis of mental retardation. The
balance includes individuals with a wide
range of primary diagnoses including spina
bifida, cerebral palsy, epilepsy, autism, and
persons with combinations of different
handicapping conditions. This list is not
all inclusive, and any individual who has any
of these conditions must also meet the
criteria regarding severity, chronicity, and
age of onset to be considered developmentally
disabled.
The Legislature has found that "approximately 2" of the residents of this State are developmentally disabled and more than 50,000 of these persons are developmentally disabled school age children." N.J.S.A. 30:1AA-10.