Jamie B. v. Hernandez

• Decision Date: 08 September 1999
• Citation: 701 N.Y.S.2d 790,182 Misc.2d 954
• Court: New York Supreme Court
• Parties: JAMIE B., by His Parent, DIANA B., Individually and on Behalf of All Others Similarly Situated, Plaintiff,<BR>v.<BR>TINO HERNANDEZ, as Commissioner of the New York City Department of Juvenile Justice, et al., Defendants.

182 Misc.2d 954

701 N.Y.S.2d 790

JAMIE B., by His Parent, DIANA B., Individually and on Behalf of All Others Similarly Situated, Plaintiff,

v.TINO HERNANDEZ, as Commissioner of the New York City Department of Juvenile Justice, et al., Defendants.

September 8, 1999.

Legal Aid Society (Nancy Rosenbloom, Henry Weintraub and Jennifer Baum of counsel), for plaintiff.

Michael D. Hess, Corporation Counsel of New York City (Jennifer Liddy, Janice Birnbaum, Kerri Jew and Deborah Seidenburg of counsel), for Tino Hernandez, defendant.

Eliot Spitzer, Attorney General (William Toran of counsel), for John Johnson, as Commissioner of New York State Office of Children and Family Services, defendant.

OPINION OF THE COURT

LOUIS B. YORK, J.

Plaintiff brings this action on behalf of himself and a proposed class consisting of all children who are or will be either (1) remanded by a Family Court Judge to nonsecure detention (NSD) or (2) given an "open" remand by a Family Court Judge and determined by the New York City Department of Juvenile Justice (DJJ) to be eligible for nonsecured detention. Defendants DJJ and Tino Hernandez as its Commissioner operate secure and nonsecure detention facilities for juveniles. Defendants the Office of Children and Family Services and its Commissioner John Johnson are responsible for ensuring that those facilities comply with all applicable laws and regulations. According to plaintiffs, dozens of children who have been remanded or determined eligible for NSD are housed in secure detention facilities although they are entitled to be placed in NSD group homes. Plaintiffs allege that in failing to furnish an adequate number of NSD spaces, defendants have violated their duty under County Law § 218-a (B), New York City Charter § 677 (c), Executive Law §§ 501 and 503, Social Services Law § 462-b, and 9 NYCRR 180.5. Plaintiffs further allege that defendants Hernandez and Johnson have violated their rights under the Due Process Clause in article I, § 6 of the New York State Constitution by confining plaintiffs in secure detention rather than the nonsecure detention to which they have been ordered remanded or to which plaintiffs are deemed entitled.

Background

Pursuant to New York delinquency proceedings, when a youth makes his or her initial appearance before a Family Court Judge, the Judge must determine whether to release the juvenile from police custody—or, if the juvenile has not been detained by law enforcement, whether to remand him or her to the custody of DJJ. (See, Family Ct Act § 320.5.) The Family Court Act states that the juvenile should not be detained unless the court finds either: (1) there is a substantial probability of flight—that is, that the respondent will not appear in court on the return date; or (2) there is a serious risk that before the return date the respondent may commit an act which if committed by an adult would constitute a crime. (Family Ct Act § 320.5 [3].) Absent these findings, the Judge releases the youth from custody and sets the terms of release. (See, Family Ct Act § 320.5.)

While a Family Court Judge has authority to set the terms of release, the Act does not give the Judge the explicit authority to set the terms and conditions of a respondent's remand. Historically, however, Family Court Judges have specified whether a child should be remanded to a secure facility or to a nonsecure facility (NSD). Consistent with its statutory obligations, the court directs "the least restrictive available alternative" consistent with "the interests of the [juvenile] and * * * the community." (Family Ct Act § 352.2 [2] [a].) By specifically remanding the child to a nonsecure detention facility, the Family Court Judge orders DJJ to place that youth in an NSD group home; according to plaintiffs' uncontroverted statement, neither DJJ nor the Office of Children and Family Services has the authority to modify a Judge's specific remand. (See, Matter of Anthony N., 106 Misc 2d 213 [Fam Ct, Richmond County 1980] [finding legislative intent to give Judges authority to direct placement, and ordering agency to comply with court directives].)

Alternatively, a Family Court Judge might order an "open" remand, directing DJJ to make the determination. Pursuant to an open remand order, the Family Court Judge directs DJJ to determine the appropriate type of detention facility for the child. DJJ's discretion is not unbridled, however, for the statutory requirement that the juvenile be placed in "the least restrictive * * * alternative" (Family Ct Act § 352.2 [2] [a]) remains applicable.

Following the issuance of an open remand order, DJJ transports the child to a secure detention facility where intake workers assess the child's candidacy for NSD. Using standard forms created by DJJ, intake workers evaluate the youth's behavior in the community, prior DJJ experiences, and other criteria to determine whether the youth poses a risk of further delinquency or flight. According to DJJ's stated policy, a youth screened eligible for NSD must be moved to an NSD facility. Commissioner Hernandez testified before the City Council on February 23, 1998 that his goal was to move NSD-eligible open remanded children into actual NSD homes as quickly as possible.

It is not disputed that there is a substantial difference between the two types of facilities. Secure detention facilities are not unlike adult jails. The children must wear uniforms and remain behind barbed wire fences and secured doors with bolts. When transported from the facility, they wear handcuffs and leg chains. The children may meet only with a few family members and only for a limited amount of time. They rarely go outdoors, and engage in few educational or recreational activities. Furthermore, guards escort and monitor them during inherently private behavior such as using the bathroom and taking a shower.

In stark contrast, nonsecure facilities provide more homelike environments where children enjoy significantly more personal freedom and responsibilities. House parents rather than guards supervise the children. The children regularly attend school; engage in sporting, cultural, and social activities; and have counseling services available to them. Through the completion of chores, successful home visits, educational progress, and adherence to the rules and procedures of the nonsecure facilities, a point system tracks appropriate behavior and enables children to "prove themselves." This opportunity to exhibit good behavior in NSD can be critical to the disposition or sentencing of their cases.

In October of 1997, the then DJJ Commissioner testified that all NSD spaces were occupied and that 28 NSD children lived at the Spofford secure facility. In February 1998, due to the fiscal irregularities of some of their contractors, DJJ canceled two NSD contracts, thereby further decreasing NSD bed capacity by 24 beds. Since March 1998, DJJ has opened three new group homes; and, as of December 1998, it has had 115 NSD spaces authorized in NSD facilities. However, more recent numbers indicate that DJJ has been less successful in complying with Family Court orders. During early 1999, DJJ held an average of four children with NSD-specific remands in secure detention per day, in addition to the hundreds of children with open remands eligible for NSD.

Defendants acknowledge the need to resolve this bed shortage; however, they have not set forth a permanent solution to the problem. Rather than furnishing additional NSD space, DJJ's remedial plan has been to ask Family Court Judges to change remands that would otherwise have been NSD-specific to open—which, according to DJJ, gives it more discretion regarding placement. During February and March of last year, defendant Hernandez contacted all the Family Court Judges in New York City by telephone and letter unilaterally requesting they cease remanding to NSD because "complete compliance with all NSD-only remands citywide is currently a physical impossibility." DJJ's latest effort has been to obtain budget approval to solicit contracts on an expedited basis for three additional group homes for 36 beds.

However, according to plaintiffs, defendants' plan will not resolve the problem. First, plaintiffs vehemently object to the practice of asking Judges to alter their rulings that children should be placed in NSD. Second, because plaintiffs estimate that hundreds of children who are NSD eligible are detained in secure facilities, 36 more beds will not provide a permanent solution.

Normally, if a child is not placed in NSD in compliance with a Family Court order, plaintiffs' course of action is to move for contempt in his or her case. However, plaintiffs assert that, in an attempt to moot out individual claims, defendants engage in a shell game, removing one child from an NSD group home to make room for another. For example, DJJ transferred Lashawn B., issued an open remand and screened for NSD, from a group home to a secure facility to make room for an NSD-specific remand. In March 1999 a Family Court Judge granted Lashawn B.'s motion to change his open remand to NSD-specific and ordered that Lashawn be returned to NSD without further disruption in his placement. A similar situation arises when plaintiffs attempt to protect their rights on an individual basis plaintiffs contend; when one child moves for contempt based on noncompliance with a Family Court Judge's order, DJJ moves that child into an NSD facility at the expense of another child who is or otherwise would be placed in NSD.

Furthermore, plaintiffs assert that when a Family Court Judge orders an open remand, defendants have an obligation to expeditiously determine whether to place the child in NSD or secure detention, and to place the child promptly in accordance with its determination. Plaintiffs also contend that DJJ should base its assessment on the statutory criteria. Defendants, on the other hand, argue that an open remand vests in...