IN THE SUPERIOR C()URT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

I.D. No.: 1605014261

NAKEEM BAILEY,

Defendant.

MEMORANDUM OPINION AND ORDER
Submitted: December 22, 2016
Decided: March 2, 2017
Corrected: March 10, 2017
Upon Consz`demtion ofDefendant’s Motion to Tmnsfer Charges to Family Court.

DENIED.

Mark A. Denney, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Att@rneyfor the State.

Patrick J. Collins, Esquire, Patrick Collins & Associates, LLC, Wilmington,
Delaware. Attorneyfor the Defendam.

MEDINILLA, J.

INTRODUCTION

Defendant Nakeem Bailey Was a fifteen-year-old adjudicated delinquent
youth When he Was arrested on violent felony charges in this Court. His lQ of 72
places him in the 3rd percentile of his same-aged peers. lf convicted as an adult, he
Will spend_at a minimum_the next half of his life (i.e., fifteen years) in prison on
just the minimum mandatory portion of his sentence He filed this Motion to
Transfer Charges to Family Court arguing that transfer of his companion charges is
Warranted pursuant to 10 Del. C. § 1011. A “reverse amenability” hearing Was
held on December 22, 2016, Where the Court heard evidence and oral arguments
on the Motion. After considering the submission of the parties, the parties’ oral
arguments at the hearing, and the record in this case, the Court finds that the
§ 1011(b) factors do not Weigh in favor of transferring Defendant’s companion
charges to Family Court. Therefore, Defendant’s Motion to Transfer Charges to
Family Court is DENIED.

FACTUAL AND PROCEDURAL HISTORY

Sadly, Defendant is yet another poster child for Why the State created the
Department of Services for Children, Youth and Their Families (“DSCYF”). Even
more unfortunate is that this Defendant has required the State’s involvement from
all of their divisions; Division of Family Services (“DFS”) for child abuse,

dependency, and neglect; Division of Prevention and Behavioral Health Services

(“PBH”) for his multiple mental health diagnoses; and Youth Rehabilitative
Services (“YRS”) for his most recent introduction into the juvenile justice system
at age fourteen.

Defendant is one of twenty-eight defendants in a 109-Count indictment With
trial scheduled to begin at the end of 2017.l Defendant has been detained since he
Was fifteen years old and Will have celebrated his sixteenth and seventeenth
birthdays awaiting trial. The charges against Defendant include Gang Participation,
three counts of Possession of a Firearm During Commission of a Felony
(“PFDCF”), Robbery First Degree, Assault First Degree, two counts of Possession
of a Firearm by a Person Prohibited (“PFBPP”), Conspiracy Second Degree, and
Carrying a Concealed Deadly Weapon.

Exclusive Jurisdiction of Firearm Charges

The General Assembly has spoken With respect to how it defines criminal
behaviors and exercised its authority to classify child offenders “based on their age
for purpose of selecting the appropriate court for adjudication.”2 The classification

“must be founded on differences reasonably related to the purposes of the statute in

 

l Defendant Was arrested in May 2016, arraigned in August 2016, re-indicted in September 2016,
re-arraigned in October 2016. A reverse amenability hearing Was held on December 22, 2016.

2 State v. Anderson, 697 A.2d 379, 382 (Del. 1997) (quoting Hughes v. State, 653 A.2d 241, 248
(Del. 1994)).

”3 Delaware law is clear that, by enacting 11 Del.

which the classification is made.
C. § 1447A(f), the General Assenibly intended that individuals over the age of 15
years charged with PFDCF to be tried as adults and no reverse amenability process
is available.4

Twenty years ago, State v. Anderson addressed the constitutional issues
raised when certain juveniles are placed within the exclusive jurisdiction of this
Court charged with [specified firearm offenses].5 Anderson held that a juvenile
was not entitled to a reverse amenability hearing when charged with PFDCF and
must be tried as an adult without judicial consideration of the factors enumerated
under 10 Del. C. § 1011(b).

Although some jurisdictions have recently considered unconstitutional
certain “autornatic transfer” statutes that prevent amenability review for a juvenile
offender,6 Defendant does not challenge the constitutionality of our current laws

for juveniles charged with firearm offenses. As such and as a preliminary matter,

because the State has charged Defendant with several counts of PFDCF, those

 

3 Ia'. (quoting State v. Ayers, 260 A.2d 162, 171 (Del. 1969)).

4 11 Del. C. § 1447A(f) (2013 & Supp. 2016). Cf Anderson, 697 A.2d at 383 (discussing older
version of § 1447A(f), which used 16 years of age instead of 15).

5 See generally Ana'erson, 697 A.2d 379.

6 See, e.g., State v. Aalz'm, -~-N.E.Bd----, 2016 WL 7449237 (Ohio Dec. 22, 2016) (holding
Ohio’s mandatory transfer statute for juveniles violates due process under Ohio Constitution).

4

firearm charges--by operation of statute-automatically remain in this Court.7
Since Defendant was over fifteen at the time he allegedly committed these
offenses, he will not be spared Superior Court proceedings regardless of his
arguments for transfer of the companion charges outlined below.8 Therefore,
Defendant’s Motion and this ruling focuses solely on the remaining “companion”
charges
Defendant’s Alleged Conduct

The facts that give rise to these charges reveal that at age 15, Defendant
allegedly held up a victim at gunpoint while the victim was rolling a blunt
cigarette The victim relinquished $9 and a pack of cigarillos. According to the
victim, Defendant had started to back away and was placing the handgun into his
pants pocket when the victim thought he “could take him.” When the victim
attempted to grab him, Defendant fired the gun. Defendant was identified by the
victim and also found discarding the firearm on the same day. Subsequently,
during the course of this investigation, the alleged relationships between Defendant
and some co-defendants gave rise to the gang participation charges. lf convicted,
Defendant faces a minimum mandatory sentence of fifteen years. His first fifteen

years were no better.

 

7See 10 Del. C. § 1011 (2013 & Supp.2016);1lDel.C. §1447A.

8 See generally Anderson, 697 A.2d 379 (answering certified questions; holding weapons charges
for defendants age 16 and older are not subject to transfer to F amin Court, while reverse
amenability hearing is permissible for charges properly joined with weapons charges).

5

Defendant’s 15-Year History of
Abuse, Dependency, Neglect, and Mental Health

At the reverse amenability hearing, Defendant presented expert evidence in
support of his Motion that provided a background for the pending charges The
State did not introduce any evidence to dispute or contradict the opinions of
Defendant’s experts. This evidence included a “Confidential Report of
Psychological Evaluation” from a licensed psychologist, Dr. Robin Belcher-
Timme, Psy.D, and an “Amenability Report” prepared by Taunya Batista, M.A., a
Sentencing Advocate/l\/litigation Specialist.9

Their reports and testimony painted a troubling picture of Defendant’s life.10
The record reflects that Defendant’s numerous traumatic life events, beginning at
birth, were far from abnormal in the arc of his short life leading up to the charges
in this case. Defendant’s mental health, child welfare, and substance abuse

histories include:

 

9 The evidence from their curricula vitae shows that Ms. Bautista holds a Masters in Criminal
Justice and Dr. Timme has a doctorate in Psychology, as well as three Master of Arts degrees in
Criminal Justice, Clinical Psychology, and Secondary English Education.

10 Defendant was born prematurely on July 6, 2000. His mother was a child-parent, a sixteen-
year-old freshman at A.l. DuPont High School, with substance abuse issues. His father “wanted
to be a drug dealer” and to “raise a criminal” he continuously exposed his son to criminal
behavior; arrested for trafficking offenses in the same month Defendant was born.

6

¢ Mental health history (from his records with the Division of Prevention
and Behavioral Health Services (“PBH”)): Defendant was diagnosed with
ADHD, Oppositional Defiant Disorder (“ODD”), and Mood Disorder.

¢ Child Welfare history (from the Division of Family Services)_Evidence of
severe domestic violence, child abuse, dependency, and neglect that dates
back to when Defendant, as early as one month old, was neglected (e.g., his
mother left him in the care of a ten-year-old). At one month old, the Family
Court awarded guardianship of Defendant to his maternal grandmother.
l\/Ioreover, both biological parents had a significant history of substance
abuse. Defendant routinely pled with his mother not to force visits with his
father. These requests fell on deaf ears and Defendant was frequently a
victim of his father’s substance-induced rages, including physical abuse. He
also witnessed acts of domestic violence by his father against women in his
father’s house. Defendant was also beaten by other male figures in his life.

0 Substance abuse history-Defendant’s substance abuse started in eighth
grade, around the time that his uncle was murdered. His substance abuse
history reveals that he used marijuana, Xanax, Percocet, and Promethazine.
lt is within this disturbing context that the Court now turns to weigh the

factors under 10 Del. C. § 1011(b) and the arguments made for and against transfer

of the companion charges to Family Court.

STANDARD OF REVIEW

The reverse amenability process has been determined a matter of
constitutional entitlement with time-sensitive provisions intended to identify those
juveniles who may still be able to return to Family Court.ll When a juvenile files a
motion to transfer all or some of the charges leveled against him, the Court must
hold a reverse amenability hearing and weigh the four factors set forth in 10 Del.
C. § ioii(b).12

The Court “may” consider evidence of: (1) “[t]he nature of the present
offense and the extent and nature of the defendant’s prior record, if any;” (2) “[t]he
nature of past treatment and rehabilitative efforts and the nature of the defendant’s
response thereto, if any;” (3) “[w]hether the interests of society and the defendant
would be best served by trial in the Family Court or in the Superior Court;” and (4)
any “other factors which, in the judgment of the Court are deemed relevant.”]3

Before the Court weighs these factors, however, “the Court must

preliminarily determine whether the State has made out a prima facie case against

the juvenile, meaning whether there is a fair likelihood that [Defendant] will be

 

ll See Haghes v. State, 653 A.2d 241, 249 (Del. 1994) (quoting Marine II, 624 A.2d 1181, 1184
(Del. 1993); Marine v. Stale, 607 A.2d 1185, 1209 (Del. 1992) [hereinafter Marine I]).

12 See, e.g., State v. Harper, 2014 WL 1303012, at *5-7 (Del. Super. Mar. 31, 2014).

13 § ioii(b).

convicted of the crimes charged.”]4 There is a fair likelihood that the defendant
will be convicted if, after reviewing the totality of the evidence presented, it
appears that, if the defense does not sufficiently rebut the State’s evidence, “the
likelihood of a conviction is real. . . .”15 Furthermore, “[a] real probability must
exist that a reasonable jury could convict on the totality of the evidence assuming
that the evidence adduced at the reverse amenability hearing stands unrebutted by
the defendant at trial.”16
DISCUSSI()N
F air Likelihood of Conviction

As a threshold issue, the Court finds that there is a “fair likelihood of
conviction” in this case. On the firearm charges alone, there is a fair likelihood of
conviction. The facts are relatively straightforward Defendant allegedly held up a
victim at gunpoint. The victim reported that Defendant put the handgun into his
pants pocket when the victim thought he “could take [Defendant].” When the
victim attempted to grab him, Defendant fired the gun. Defendant was later

identified and found discarding the firearm on the same day. Based on the

 

14 Harper, 2014 WL 1303012, at *5 (citing Marirze v. State, 624 A.2d 1181, 1185 (Del. 1993)
[hereinafter Marine II]).

‘5 smre v. Mayhall, 659 A.zd 790, 792 (Dei. super 1995).

lG]d

foregoing, this Court finds that the State has made out a prima facie case against
Defendant.

Weighing § 1011 (b) ’s F our Factors
I. Section 1011(b)’s Catchall Provision: Anv Factors Deemed Relevant

Defendant is both a youth in need of rehabilitation and is also an adult
offender. As the Supreme Court noted in Ayers: “An individual between the ages
of 1[5] and 18 is as capable of violent action as is an older individual.”17 He,
therefore, remains an “adult” offender for the PFDCF charges and will be expected
to answer to those charges. Notwithstanding this mandate, the analysis available
under § 1101(b) asks the Court to weigh certain factors to determine if this 16-
year-old Defendant may still be amenable to the State’s rehabilitative efforts. In
other words, does it make sense for both courts to be involved in the disposition of
the case, where a youth can have access to rehabilitative services but also face the
consequences of the adult charges‘?

The Court begins its analysis of § 1011(b)’s four factors by flipping the
normal analysis on its head. Traditionally this final, or “catchall,” factor is
addressed last under § 1011(b). Under this factor, the Court may consider any
factors “which, in the judgment of the Court are deemed relevant.” The Court

purposely starts with this final factor because it was impliedly the State’s primary

 

17 stare v. Ayers, 260 A.zd 162, 171 (Dei. 1969).
10

and only argument against transfer, and because Defendant presents a unique
argument in favor of transfer that also falls under this factor. Further complicating
this analysis is the testimony presented through YRS representative, Jennifer
Skinner, related to the YRS policies/practices, and the practical effect they have on
a youth if the Court decides to transfer the case back to Family Court.

Defendant makes an excellent argument that this catchall factor weighs in
his favor where the delay uniquely associated with this case is highly relevant to
the Court’s analysis. Defendant emphasizes that this is a 28-defendant gang
participation case and trial is not scheduled until the end of this year. Assuming
the best case scenario (i.e., no continuances or other delays in this case), Defendant
has been detained since he was fifteen in May 2016 and he will be nearly halfway
to eighteen when he gets to trial. Defendant suggests that if some of his charges
are transferred back to Family Court, he is still young enough to receive up to five
years of Family Court supervision, and at least two and a half years of
rehabilitative services, and then return to this Court to face his adult firearm
charges

The Court agrees that Defendant’s age and rehabilitation opportunities are
highly relevant. Although months or years might not be an unusual timeframe for
a case to get to trial, for purposes of amenability, it is highly relevant, especially,

for this juvenile Defendant. By age fourteen, he was on the radar of all three

ll

divisions charged with addressing his multi-faceted and complex issues For the
eighteen months he remains incarcerated through YRS, he goes without “services,”
as those terms are defined by DSCYF from the sister divisions in DFS, PBH, and
YRS.18 The argument successfully makes the point that services and time are still
available to him at YRS if sent back to Family Court. Unfortunately, YRS will not
service him while he carries adult charges This result places this youth between
the proverbial rock and hard place, and is at the core of the State’s position against
a transfer.

The State argues, as it often does, that because it has charged Defendant
with firearm offenses that invoke this Court’s exclusive jurisdiction, the
companion charges are inextricably intertwined with the firearm charges for which
transfer is unavailable Accordingly, the State essentially argues that,
notwithstanding the other § 101 l(b) factors, this factor is determinative and
strongly suggests that this Court should retain jurisdiction over the companion
charges

The problem with the State’s argument is that it places undue emphasis on

one catchall provision among the other § 10ll(b) factors The State’s

 

18 This is not to say that he is not receiving some support at the detention center. However, it is
misguided to suggest that he is receiving therapy while detained Except for Cognitive
Behavioral Therapy (“CBT”), this “therapy” is not addressing his mental health diagnoses, his
substance abuse problems, or child welfare needs. Educationally, he may be getting schooling
but it does not appear that he has access_nor has he been assessed for_special education
services despite his obvious cognitive and developmental challenges

12

contention_that the Court’s exclusive jurisdiction over the PFDCF charges is
dispositive as to the companion charges_~was addressed in State v. Anclerson
where the Supreme Court expressly rejected the State’s position that a juvenile was
not entitled to a reverse amenability hearing (for the remaining charges) because it
had charged him with these enumerated firearm offenses.]9 Arza’ersorz recognized
the importance of the reverse amenability process as “providing a judicial check on
prosecutorial overcharging_a function with implications of important equal
protection and due process guarantees in the prosecution of certain offenses.”20

Moreover, from a statutory construction perspective, it would ring
inconsistent for the General Assembly to enumerate certain explicit statutory
factors in § 1011(b), but permit the State’s charging decision to override these
express factors.Z] Were the State’s charging decision the sole determinative factor
at the reverse amenability stage, the result would necessarily be that, whenever the
State charged a juvenile with PFDCF, this charging decision would force the

companion charges to remain in this Court no matter how much the other statutory

factors leaned towards transfer. lf the legislature intended this result when it

 

19 See State v. Ana'erson, 697 A.2d 379, 384 (Del. 1997) (“The State’s argument does not square
with the plain language of [§ 1011].”).

211 1a (quoting Hughes, 653 A.2d at 245; Marzne 1, 607 A.zd ar 1209-12).

21 cf la see also Rubick v. sea lmzmmem corp., 766 A.zd 15, is (Dei. 2000) (“The ruies 6f
statutory construction are well settled. The goal, in all cases, is ‘to ascertain and give effect to
the intent of the legislature.’ If the statute is unambiguous there is no room for interpretation,
and the plain meaning of the words controls.”).

13

placed PFDCF in the exclusive jurisdiction of this Court, then there would be no
reason for this Court to review the statutory factors expressly set out under
§ 1011.22 An automatic transfer would occur. To make judicial review a pro
forma exercise not only runs counter to the rulings in Marine 1 and II, Hnghes, and
Anderson, it is flawed based on recent United States Supreme Court decisions that
have struck down automatic provisions without judicial oversight for juvenile
offenders as unconstitutional.23 Nonetheless, the evidence presented through YRS
highlights the flaws in our current system and our reverse amenability
considerations

The State agency, or DSCYF through YRS, presents a curious stance on
how the agency will process the delivery of juvenile justice services to Defendant
even if this Court determines that he is amenable to the Family Court. Although
not statutorily mandated, YRS will not provide services if Defendant has pending
adult charges in this Court. The practical reality, as this Court has determined in
prior reverse amenability decisions, is that since YRS will not provide services

while a juvenile has pending adult charges, severance of the charges would only

 

22 cf Rubick, 766 A.zd ar is.

23 See, e.g., Miller v. Alabama, 132 S.Ct. 2455 (2012) (mandatory life imprisonment without
parole statute for juveniles violates Eight Amendment; fact-finder must have opportunity to

consider mitigating circumstances before imposing such penalty). See also State v. Aalim,---
N.E.3d----, 2016 WL 7449237 (Ghio Dec. 22, 2016) (holding Ohio’s mandatory transfer statute
for juveniles violates due process under Ohio Constitution).

14

serve to delay services because the Defendant is forced to remain at the detention
center pending disposition of his Superior Court charges24 One would suggest that
the logical solution would be to resolve the adult charges first. However, Ms.
Skinner testified that if a youth is convicted as an adult offender, he is no longer
considered a youth, and cannot receive services through YRS. Moreover, it will
not provide services to a youth to age twenty-one even if the Family Court
extended its jurisdiction accordingly.25

The YRS policies raise two concerns YRS has custody of a juvenile and is
responsible with providing services to youth until age nineteen yet will not do so
while the youth has pending charges as an adult offender. The testimony from
YRS was that the State’s charging decision alone makes him non-amenable This
is regardless of Defendant’s ability to respond to rehabilitation or the likelihood
that the State will obtain an adult conviction. Second, YRS remains mandated to
only provide services to a youth to age nineteen, regardless of whether the Family
Court extends its jurisdiction to age twenty-one. The result appears to be a de

facto deprivation of services to a youth who may be amenable to the Family Court.

 

24 Ms. Skinner cited staff security reasons as reasons youth with pending services should not be
“mixed” with adjudicated youth. Since they face adult charges, they are likely not going to be
incentivized to behave while in youth facilities

25 see 10 Del. C. §§ 928-29 (2013 & supp. 2016) routinng Famiiy courts ability to extend
jurisdiction over certain juveniles up to age 21).

15

This catch-22 effect of the YRS administrative policies hamstrings this
Court’s analysis Even if a determination is made that both courts should remain
involved in the disposition of charges against a juvenile offender because he is
both amenable to services as he transitions into adulthood, and shall remain
answerable to the adult offenses, the fact that the agency charged with servicing
him will not do so is a significant factor. When cross-examined, l\/ls. Skinner
testified that she was unsure how these policies came into being and confirmed that
they did not appear to be statutorily mandated

Where YRS will prohibit access to services post-adjudication if a juvenile
has pending adult charges, the State has routinely dovetailed this policy in support
of its argument against a transfer. lt follows that traditional arguments of
severance and joinder under Rules 8 and 14 have prevailed to persuade the Court
against transfer as both judicially economic and to avoid the delay of services as a
“relevant” factor. The policies of YRS have made it easy for the State to simply
state that-~due to its charging decision-transfer is unavailable, unnecessary, or
meaningless This is accurate. Unfortunately, it also runs counter to the intent of
10 Del. C. § 1011, making the reverse amenability process for a juvenile facing
adult offenses an exercise in futility for the youth and a rubber-stamping waste of

judicial resources for the Court.

16

The time-sensitive nature of reverse amenability requires a defendant file the
motion for transfer within 30 days of arraignment, and for this Court to hold a
hearing within 30 days of said filing.26 The sense of urgency exists for juveniles,
unlike for adults, because the proverbial window is closing each day for the
rehabilitative services offered only through YRS and Family Court. YRS policies,
however, do not appear to be in sync with the same sense of urgency intended by
General Assembly. The policies vitiate the spirit of § 1011 and impede the time-
sensitive nature of the reverse amenability process

As to the “catchall” provision, this Court reluctantly must accept that a
transfer to Family Court would do nothing but delay Defendant’s access to services
while he remains detained awaiting disposition of his adult charges The only
efficient choice is to keep the charges together so that Defendant is working solely
with one Court. This factor weighs against a transfer.

II. Section 1011(b) Factor One: Nature of Present Offense and Extent and

Nature of Defendant’s Prior Record

Albeit somewhat a pro forma exercise for the reasons above stated,
§ 1011(b) directs the Court to look at the present offense and then the extent and
nature of Defendant’s prior record. As to this factor, the offenses are manifestly

serious: he is facing violent felonies that carry lengthy minimum mandatory prison

 

116 10 Del. C. § 1011(6).
17

sentences This clearly weighs against a transfer. However, the second prong of
the first § 1011(b) factor weighs in favor of transfer.

While Defendant has a long history of child abuse and behavioral and
mental health through DFS and PBH, his juvenile delinquency history through
YRS is minimal. His first arrest came at age thirteen for Driving Without a
License for riding his mother’s mini bike. This charge was nolle prossed.
Notably, the State presented evidence from Ms. Skinner who testified that, because
his history is minimal, but for the PFDCF charges, he would be amenable to the
services of YRS.

In June 2015, Defendant became active for the first time with YRS at age
fourteen when charged with serious charges, including Robbery First Degree. The
charges stayed in Family Court and were nolle prossed, except for an adjudication
of delinquency for Conspiracy Third Degree. He was ordered to Wraparound
Delaware where the response was good. He was successfully discharged from this
program on March 31, 2016 and completed his community service with a
construction company. He was compliant when placed on pre-trial supervision and
was otherwise successful during his probationary period.

Defendant’s criminal record consists of two incidents, albeit serious, at the
age of fourteen and fifteen respectively. ln other contexts, the United States

Supreme Court has recognized the “mitigating qualities of youth,” which includes

18

a judicial and scientific recognition of the juvenile’s proclivity to act impulsively
and irresponsibly due to innumerable intrinsic and extrinsic factors27

Analogously, and given Defendant’s age in this case, this factor splits in
favor of a transfer. While the charges are serious, the nature and extent of his prior
record occurred within a one-year period when Defendant was between fourteen
and fifteen-years old and he complied with the rehabilitation efforts favorably. All
evidence suggests he is amenable to transfer but the YRS policies would result in
his continued detention pending disposition of his adult firearm charges
III. Section 1011(b) Factor Two: Nature of Past Treatment and

Rehabilitative Efforts and Defendant’s Response Thereto

The next § 1011(b) factor assesses “[t]he nature of past treatment and
rehabilitative efforts and the nature of the defendant’s response thereto, if any.”

This Court finds that this factor weighs in favor of transfer.

 

27 Miller v. Alabama, 132 S.Ct. 2455, 2467 (2012) (quoting Johnson v. Texas, 509 U.S. 350, 367
(1993)). Roper v. Simmons and its progeny reflect the greater attention that is now placed on the
peculiarities inherent in juvenile conduct See Roper v. Simmons, 543 U.S. 551 (2005). See also
Montgomery v. Louisiana, 136 S.Ct. 718 (2016); Miller, 132 S.Ct. 2455; Graham v. Florida, 560
U.S. 48 (2010). This Eight Amendment jurisprudence recognizes that juveniles possess a “lack
of maturity and . . . underdeveloped sense of responsibility” that leads to reckless, impulsive, and
heedless risk-taking. Roper, 543 U.S. at 569 (quoting Johnson, 509 U.S. at 367). They “are
more vulnerable . . . to negative influences and outside pressures,” including from their family
and peers Id. (citing Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)). Juveniles have limited
“control . . . over their own environment” and lack the ability to extricate themselves from
horrific, crime-producing settings Id. (citing Laurence Steinberg & Elizabeth S. Scott, Less
Guilly by Reason of Adolescence: Developmenial Immatnrily, Diminished Responsibility, and the
Juvenile Death Penally, 58 AM. PSYCHOLOGIST 1009, 1014 (2003)). And because a child’s
character is not as “well formed” as an adult’s, his traits are “less fixed” and his actions are less
likely to be “evidence of irretrievabl[e] deprav[ity].” Id. at 570 (citing ERIK H. ERIKSON,
IDENTITY; YoUTH AND CRisis (1968)).

19

Despite Defendant’s behavioral/mental health needs, educational challenges
and violent/traumatic familial environment, Defendant stayed out of the juvenile
justice systeme Four months prior to his first YRS placement, when Defendant was
fourteen and a half years old, Defendant’s uncle was murdered while recording
music at the Rose Hill Community Center. This relative was Defendant’s healthy
male role model; a “real uncle” who played basketball with Defendant.
Notwithstanding this traumatic loss, no grief treatment or counseling was ever
provided to Defendant. This time period appears to coincide with the beginning of
Defendant’s substance abuse history, at age fourteen. No substance abuse
counseling or treatment was provided.

From an educational standpoint, Defendant’s academies were at risk for
math, reading, and writing, and it is unclear why he was not assessed for special
education services A review of his education records reveals that he struggled
with his behavior and academies for years, which required Rockford Center
placements At age thirteen, mental health service providers, through PBH,
ordered or recommended services for Defendant. However, his family did not
follow-up and he went without services At age fourteen, Delaware Guidance
Services recommended services for his mental health diagnoses including ODD.
F or reasons that are not clear, all services were discontinued, likely due to his

admission at Rockford Center.

20

As to this factor, Defendant faced inordinate challenges with little assistance
from the adults in his life, except from perhaps his maternal grandmother. By way
of reference, Defendant’s history is different than the defendant in State v. Benson,
where the Superior Court denied the transfer to Family Court of a seventeen-year-
old charged with firearms and companion charges28 The Court noted, in weighing
the § 1011(b) factors, that:

ln terms of his social development, there is no indication
that this Defendant was subject to physical or emotional
abuse by his family, nuclear or extended Equally absent
is evidence of involvement with alcohol or illegal drugs
Lastly, at the time of the hearing, he was still enrolled as
a student in a local public high school.29

This Court finds that Defendant received minimal prior treatment However,
what little treatment he received he complied with and successfully completed As
such, the second § 1011(b) factor weighs in favor of a transfer to Family Court,
deemed meaningless unless the agency agrees to provide services while Defendant
has pending adult charges
IV. Section l011(b) Factor Three: Whether the Interests of Societv and

Defendant Are Served bv Trial in Family Court or Superior Court

As to the third § 1011(b) factor, the Court looks at “[w]hether the interests of

society and the defendant would be best served by” the transfer to Family Court.

 

21 1998 wL 755185(1)@1. super Juiy 17, 1998).

29 1a at *2.
21

When assessing this factor, this Court is guided by State v. Johnson, where the
Superior Court determined that it was “not in the interests of society to place the
remaining charges in Family Court for treatment Defendant does not need and that
[YRS] cannot provide. . . .”30

Dr. Timme and Ms. Batista presented undisputed evidence that Defendant
needs services that can be provided through YRS. Ms. Skinner concurred that, but
for the State’s charging decision on the firearm offenses, Defendant is amenable to
the services they could offer at YRS. This factor also weighs in favor of a transfer.

CONCLUSION

Defendant moved through the spectrum of the DSCYF, identifying first as a
child who was neglected, dependent and abused lt is not uncommon to see how
these traumatic adverse childhood events would affect his behavioral and mental
states Left untreated, it should come as no surprise that Defendant landed in the
criminal justice system.

Interestingly, the undisputed evidence was promising YRS and Defendant’s
experts established that Defendant is amenable to Family Court if transferred back.
After weighing the § 1011(b) factors, this Court finds that although amenable, the

rationale for a transfer would meet resistance under existing YRS policies that

focus on the pending adult firearm charges Given the current state of the

 

30 2012 wL 2835024, at *4 (Del. super June 15, 2012).
22

DSCYF/YRS structure, the charging decision of the State has the effect of
automatically forcing the matter to remain in this Court. Should YRS be amenable
(no pun intended) to modify its existing policies, the Court’s ruling would have
been different The hope is that YRS will review its existing practices to better
comport with the mandates and the spirit of our juvenile transfer system.

Therefore, Defendant’s Motion to Transfer his companion charges must be

DENIED.

IT IS SO ORDERED.

  

//\/ /W
VivianL. Meditf/ la

Judge //

L///

oc: Prothonotary
cc: Patrick J. Collins, Esquire
Mark. A. Denney, Esquire
Jennifer Skinner, Master Family Service Specialist

23

