State in Interest of M. S.

• Decision Date: 10 May 1974
• Citation: 129 N.J.Super. 61,322 A.2d 202
• Parties: Page 61 129 N.J.Super. 61 322 A.2d 202 In re STATE of New Jersey In the Interest of M.S. Juvenile and Domestic Relations Court, Essex County, New Jersey
• Court: New Jersey Superior Court — Appellate Division

Page 61

129 N.J.Super. 61

322 A.2d 202

In re STATE of New Jersey In the Interest of M.S.

Juvenile and Domestic Relations Court Essex County, New Jersey.

May 10, 1974.

Addendum to Opinion May 31, 1974.

[322 A.2d 203] Robert J. Schenkman, Asst. Prosecutor, for the State (Joseph P. Lordi, Essex County Prosecutor, attorney; Sara A. Friedman, Asst. Prosecutor, on the brief).

Thomas S. Smith, Asst. Deputy Public Defender, for the juvenile (Stanley C. Van Ness, Public Defender, attorney; Michael Degnan, Asst. Deputy Public Defender, on the brief).

Robert A. Rubenfeld, Deputy Atty. Gen., for amicus curiae (William F. Hyland, Atty. Gen., attorney; Robert A. Rubenfeld on the brief).

MATTURRI, J.J. & D.R.C.

The question presented in this case is whether the unauthorized departure of a juvenile in need of supervision from the Essex County Shelter (hereinafter referred to as the Shelter) where she was placed by court order pending permanent placement constitutes escape. The issue is one of first impression in this State. In order to understand how this complex issue arose, a brief recitation of the juvenile's background is necessary.

The case involves M.S., a 13-year-old girl with an extensive history of runaways from various juvenile facilities. The initial complaint filed against her (J--6530--72) alleged that she absconded from the Shelter on four separate occasions. She was charged with being an habitual runaway, a ground for adjudication of delinquency under N.J.S.A. 2A:4--14 (1959), the old Juvenile Court statute then in effect. ¹ Since she failed to appear in court on the scheduled date, a bench warrant for her appearance was issued. Upon her return she was placed in a foster home.

On September 5, 1973 a second delinquency petition (J--84--73) charged M.S. with running away from her foster home and incorrigibility, pursuant to N.J.S.A. 2A:4--14(1)(f) (1959). After the detention hearing she was remanded to the Youth House. Only two days later, on September 8, 1973, she again fled. Later that day she was returned by her mother. Due to her unstable home situation, M.S. was presumably unwilling to even remain with her. She could give no reason justifying her absence; she had no complaints about her treatment at the institution. As a result of this incident a third complaint was issued (J--178--73) charging her with escape.

Upon her own admission M.S. was adjudicated delinquent for being a runaway and incorrigible (J--84--73) on October 1, 1973. The two remaining complaints for being an habitual runaway (J--6530--72) and escape (J--178--73) were dismissed upon the prosecutor's motion. The Division of Youth and Family Services was ordered to investigate placement possibilities and report its findings to the court. Thereupon, she was placed in a foster home. Meanwhile, arrangements were made to have appropriate psychological, psychiatric and physical examinations performed. Due to extreme behavioral problems, however, she was removed to the Shelter on October 12, 1973. On October 27, 1973 she once more left the Shelter, thereby interrupting the testing process. After her return on November 28, 1973 she was again remanded to the Youth House. She was transferred by court order to the Shelter on March 1, 1974, the effective date of the new Juvenile Court statute, awaiting permanent residential placement to be reported by the Division. ²

Within five days, on March 6, 1974, M.S. staged another exodus from this temporary abode. After a nine-day absence, she was remanded to the Youth House, where she has been detained due to her numerous prior runaways. In light of her chronic background she was charged with juvenile delinquency for escape in violation of N.J.S.A. 2A:104--6 (1934) under the complaint in issue (S--33). This latest flight allegedly comprised her eighth runaway (six from the Shelter) over an eight-month period, all occurring while she was still 12 years old.

The child's psychological and psychiatric testing indicated a good deal of 'street savvy,' as demonstrated by her frequent successful runaway incidents. In her psychological interview she readily confessed to smoking pot, 'snorting' and drinking, as well as stabbing others and attempting suicide. She was diagnosed as a 'hysterical personality with passive-aggressive features.' Her behavior was classified as unmanageable, disruptive and oppositional. A distinct likelihood of 'sexual acting out' during her runaway escapades was noted. This is supported by her admission of casual sexual relationships with five boys since age 9, and her preoccupation with having a baby of her own. Closely supervised, structured residential placement was strongly recommended by the examining psychologists, the social worker, as well as the caseworker from the Division of Youth and Family Services.

The facts in this case are not in issue. As stated in defendant's brief, 'the juvenile left the grounds of the Shelter.' The only question to be resolved is whether her actions constitute escape within N.J.S.A. 2A:104--6 (1934).

It is argued that as a JINS, M.S. may not be placed in a physically confining environment. The contention is made that running away from a nonrestrictive facility, such as the Shelter, cannot be penalized as escape under N.J.S.A. 2A:104--6 (1934) since such a charge would contravene the philosophy of the new Juvenile Act.

N.J.S.A. 2A:104--6 (1934) defines escape thusly:

Any person imprisoned or detained in a place of confinement, or Being in the lawful custody or control of a penal or correctional institution or Of an officer or other person, upon any charge, indictment, conviction or sentence for any crime, Or upon any writ or process in a civil action or proceeding, or to await extradition, who by force or fraud escapes or attempts to escape from such place of confinement or from such custody or control, or leaves the building or grounds of his place of confinement without the consent of the officer in charge, is guilty of a misdemeanor. (Emphasis added)

As originally enacted in 1898, this statute only prohibited escape from incarceration. State v. Frost, 95 N.J.Super. 1, 229 A.2d 673 (App.Div.1967). The 1931 amendment extended its coverage to include escape from the custody or control of the sheriff or any other officer. The present version, enacted in 1934, further broadened its scope to criminalize escape by one detained via civil 'writ or process.' State v. Frost, Supra. Though entitled by the headnotes as 'Prisoners escaping or attempting to escape,' it is clear that the provision also encompasses flight by non-prisoners from 'lawful custody or control' in civil proceedings. It is well established that headnotes are not part of the Revised Statutes and "no implication or presumption of a legislative construction is to be drawn therefrom'.' In re J.W., 44 N.J.Super. 216, 224, 130 A.2d 64, 68 (App.Div.1957) , certif. den. 24 N.J. 465, 132 A.2d 558 (1957).

Various analogous statutes also proscribe unauthorized departures from situations not involving strictly criminal incarceration. Unsanctioned absence by a judicially committed patient from a mental institution has been characterized as escape. N.J.S.A. 30:7B--5 (1956); N.J.S.A. 30:4--116 (1924). See State v. LeVien, 82 N.J.Super. 29, 196 A.2d 546 (Law Div.1963), in which the court intimated that any attempt to leave the institution by a judicially committed mental patient would be met by force. See also Drew v. Thaw, 235 U.S. 432, 35 S.Ct. 137, 59 L.Ed. 302 (1914); Slagle v. State, 243 Md. 435, 221 A.2d 641 (Ct.App.1966); Cf. Frazier v. United States, 119 U.S.App.D.C. 246, 339 F.2d 745 (D.C.Cir. 1964); Zimmer v. State, 247 N.E.2d 195 (Ind.Sup.Ct.1969); Contra, State v. Burris, 346 S.W.2d 61 (Mo.Sup.Ct.1961). For cases finding defendant guilty of escape upon absconding from a hospital to which he was transferred from prison, see United States v. Perez, 457 F.2d 555 (6 Cir. 1972); Tucker v. United States, 251 F.2d 794 (9 Cir. 1958); State v. Adams, 4 Ariz.App. 298, 419 P.2d 739 (Ct.App.1966); People v. Armstrong, 188 Cal.App.2d 745, 10 Cal.Rptr. 618 (D.Ct.App.1961); Best v. Warden, 235 Md. 633, 201 A.2d 490 (Ct.App.1964); Contra, Goodman v. State, 96 Ariz. 139, 393 P.2d 148 (Sup.Ct.1964).

Willful failure to remain within the limits of confinement or to promptly return to an assigned facility has also been designated as escape. N.J.S.A. 30:4--91.5 (1969). See Johnsey v. State, 80 Okl.Cr. 84, 157 P.2d 221 (Ct.App.1945); Perry v. State, 80 Okl.Cr. 58, 157 P.2d 217 (Ct.App.1945). See also United States v. Rudinsky, 439 F.2d 1074 (6 Cir. 1971); United States v. Coggins, 398 F.2d 668 (4 Cir. 1968); McCullough v. United States, 369 F.2d 548 (8 Cir. 1966); Nace v. United States, 334 F.2d 235 (8 Cir. 1964); People v. Labrum, 25 Cal.App.3d 105, 101 Cal.Rptr. 602 (D.Ct.App.1972); People v. Perez, 24 Cal.App.3d 340, 100 Cal.Rptr. 834 (D.Ct.App.1972); Contra, United States v. Person, 223 F.Supp. 982 (S.D.Cal.1963).

Absconding from a workhouse, N.J.S.A. 30:8--36 (1877), or from a work release program, N.J.S.A. 30:8--53 (1968), are also punishable as escape. See People v. Smith, 195 Cal.App.2d 789, 16 Cal.Rptr. 111 (D.Ct.App.1961); People v. Hadley, 88 Cal.App.2d 734, 199 P.2d 382 (D.Ct.App.1948); Saylor v. Commonwealth, 122 Ky. 776, 93 S.W. 48 (Ct.App.1906); State v. Putnam, 248 Minn. 182, 79 N.W.2d 273 (Sup.Ct.1956); State v. Baker, 355 Mo. 1048, 199 S.W.2d 393 (Sup.Ct.1947); State v. McInerney, 53 R.I. 203, 165 A. 433 (Sup.Ct.1933). See also, United States v. Hollen, 393 F.2d 479 (4 Cir. 1968); People v. Haskins, 177 Cal.App.2d 84, 2 Cal.Rptr. 34 (D.Ct.App.1960); Gaskill v. State, 1 Storey 107, 51 Del. 107, 138 A.2d 500 (Super.Ct.1958); State v. Rardon, 221 Ind. 154, 46 N.E.2d 605 (Sup.Ct.1943); Cutter v. Buchanan, 286 S.W.2d 902 (Ky.Ct.App.1956); Shifflett v. State, 4 Md.App. 227, 242 A.2d 182 (Ct.App.1968); State ex rel Johnson v. Warden, 196 Md. 672, 75 A.2d 843 (Ct.App.1950); Sweden v....