State in the Interest of J.J., A-2357-11T2; Appellate Division; opinion by Waugh, J.A.D.; decided and approved for publication August 28, 2012. Before Judges Cuff, Lihotz, and Waugh. On appeal from the Juvenile Justice Commission and the Department of Corrections. DDS No. 14-2-7511 [28 pp.]

The Family Part adjudicated J.J. (Jones) a delinquent and committed him to the custody of the Juvenile Justice Commission for four years for conduct that, if committed by an adult, would constitute attempt, robbery, and resisting arrest. The JJC initially placed him in the New Jersey Training School (NJTS) but subsequently moved him to the Juvenile Medium Security Facility (JMSF).

After Jones was found guilty of “assault on staff” for punching a JJC corrections officer, the Juvenile Reception Classification Committee (JRCC) recommended that he be transferred to the custody of the Department of Corrections based on, inter alia, his age (18), his aggressive and assaultive history while confined, his failure to conform to available program interventions in the juvenile setting, and his physical stature (6’2″ and more than 200 pounds).

The JJC recommended the transfer and forwarded the request to the DOC commissioner, who approved the transfer. Jones was not notified of the review, the JRCC’s recommendation, the JJC’s approval of the recommendation, or DOC’s approval of the transfer. He was transferred the same day he was told he was being transferred.

On appeal, Jones argues that the transfer regulations, N.J.A.C. 13:91-1.1 to -2.5, are unconstitutional and seeks to return to the custody of the JJC.

Held: The rehabilitative purposes of the juvenile justice system combined with the importance of the decision to transfer in terms of the availability of rehabilitative services to juveniles require due process at least as extensive as that required for prison discipline before a juvenile can be transferred to custody of the DOC. At a minimum, there must be written notice of the proposed transfer and the supporting factual basis, an impartial decision-maker, an opportunity to be heard and to present opposition, some form of representation, and written findings of fact supporting a decision to transfer. N.J.A.C. 13:91-2.1, which provides no due process rights to the juvenile as part of the transfer process, is invalid.

After outlining the statutory and regulatory background of New Jersey’s system of juvenile justice and the JJC, the panel notes that N.J.S.A. 52:17B-175(e) specifically permits the transfer of a juvenile who has reached the age of 16 from the custody of the JJC to that of the DOC when his continued presence in the juvenile facility threatens the public safety, the safety of juvenile offenders, or the ability of the JJC to operate the program in the manner intended. The implementing regulations only permit transfer for adjudicated juveniles 18 and older. They contain procedural requirements for the internal decision-making process at the JJC and DOC, but no requirement that the juvenile receive any level of procedural due process.

The panel rejects Jones’ argument that the transfer of a juvenile from a JJC facility to one of DOC’s adult prisons changes the nature of the proceeding such that a jury trial is required, adopting the reasoning in Monroe v. Soliz, 939 P.2d 205 (Wash. 1997), which held that a change in the place of confinement does not transform the essential nature of the judicial proceedings from juvenile to criminal.

The panel says that because the Code of Juvenile Justice, which has both rehabilitative and penal aspects, provides extensive procedural protections to juveniles and significantly reduces their exposures to incarceration, in addition to offering a number of alternative dispositions, a transfer to an adult facility based on the requisite finding does not upset the quid pro quo under which the juvenile system must operate.

The panel then says that because the Legislature has conditioned the transfer of a juvenile on specific findings, and because a transfer significantly changes the focus of the incarceration away from rehabilitation and toward security and punishment, there must be a sufficient level of procedural due process to protect the juvenile’s interests. The rehabilitative purposes of the juvenile justice system combined with the importance of the decision in terms of the availability of rehabilitative services to juveniles at issue require due process at least as extensive as that required for prison discipline. At a minimum, before a juvenile can be transferred, there must be written notice of the proposed transfer and the supporting factual basis, an impartial decision-maker, an opportunity to be heard and to present opposition, some form of representation, and written findings of fact supporting a decision to proceed with the transfer. The panel notes that the nature of the representation cannot be determined on this record since neither the availability of counsel substitutes nor whether the juvenile would be mixed with the adult population on transfer — factors which would affect whether there must be representation by counsel — are known.

The panel says inasmuch as the Family Part judge has already determined that the juvenile should be incarcerated, there is no need for a referral to the Family Part to approve a proposed transfer. Once the decision to incarcerate has been made, the decision regarding the appropriate place for incarceration is within the authority and expertise of the JJC.

The panel concludes that because N.J.A.C. 13:91-2.1 provides no due process rights to the juvenile as part of the transfer process, it is invalid.

The order transferring Jones is reversed and he shall be returned to the custody of the JJC. The JJC shall promptly revise its regulations to provide an appropriate level of due process. It may then seek to transfer Jones to the DOC with an appropriate hearing and procedural safeguards.

For appellant J.J. — Sandra Simkins, Director of Clinical Programs, Co-Director of Children’s Justice Clinic, and Lisa M. Geis (Children’s Justice Clinic, Rutgers School of Law-Camden). For respondent JJC and DOC — Daniela Ivancikova, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Melissa H. Raksa, Assistant Attorney General, of counsel).