IN RE ANGEL R. [*]
Argued, November 20, 2014
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Petition to adjudicate the respondent minor a delinquent, brought to the Superior Court in the judicial district of Fairfield, Juvenile Matters at Bridgeport, where the respondent was presented to the court, B. Kaplan, J., on a plea of guilty to assault of a public safety officer; judgment adjudicating the respondent minor delinquent and committing the respondent minor to the custody of the Commissioner of Children and Families; thereafter, the court denied the respondent minor's motion to dismiss and granted the motion filed by the petitioner, the Commissioner of Children and Families, to transfer custody of the respondent minor to the Department of Correction, and the respondent minor appealed to this court.
The respondent minor, who had been adjudicated delinquent, appealed to this court from the judgment of the trial court granting the motion filed by the petitioner, the Commissioner of Children and Families, to transfer the respondent from the custody of the petitioner to the custody of the Department of Correction. The respondent previously had been committed to the petitioner's custody for a period not to exceed eighteen months, as permitted by statute (§ 46b-141), after being adjudicated delinquent on the basis of her plea of guilty to a charge of assault of an officer. Thereafter, the petitioner sought the transfer pursuant to statute (§ 17a-12 [a]), claiming that the respondent had a history of assaultive behavior while in the petitioner's custody. The trial court found, by a preponderance of the evidence, that the respondent was too dangerous to be housed in a facility operated by the petitioner, and ordered her transferred to the custody of the Department of Correction.
Subsequently, the respondent, who would attain the age of eighteen during 2015, was returned to the petitioner's custody. On appeal, the respondent claimed, inter alia, that § 17a-12 (a) was unconstitutional because it was void for vagueness as applied to her and deprived her of due process by permitting her to be transferred to the Department of Correction without having first been afforded certain procedural rights.
1. Because the petitioner's ability to transfer a delinquent juvenile from the custody of the Department of Children and Families to that of the Department of Correction is limited to the eighteen month period provided in § 46b-141 and, thus, there is a reasonable likelihood that the issues presented in this appeal would arise each time the petitioner seeks to transfer a delinquent juvenile to the custody of the Department of Correction, the respondent's appeal was not moot, as it met the requirements for review under the capable of repetition, yet evading review exception to the mootness doctrine; moreover, the claims in this appeal will affect a reasonably identifiable group for whom the respondent can be said to act as a surrogate, and whether § 17a-12 (a) permits the transfer of a minor in the petitioner's custody to the Department of Correction is a question of public importance and raises questions fundamental to a fair society.
2. The respondent could not prevail on her claim that § 17a-12 (a) was unconstitutional because it was void for vagueness as applied to her, which was based on her claim that § 17a-12 (a) did not define the term " dangerous" and, thus, did not provide fair notice of the conduct it prohibited; the record amply supported the conclusion that the respondent had exhibited physically dangerous behavior while in the petitioner's custody and had been adjudicated delinquent on the basis of a physical assault, and a person of ordinary intelligence in the respondent's circumstances would comprehend that the assaultive behavior she exhibited could be found to present a danger to others and would subject such person to the transfer provisions in § 17a-12 (a).
3. This court concluded that the respondent had a constitutionally protected liberty interest in not being transferred from the custody of the Department of Children and Families to the custody of the Department of Correction, and that she was denied due process at the transfer hearing because the petitioner was not held to the clear and convincing standard of proof regarding the respondent's level of dangerousness or the petitioner's inability to safely maintain the respondent in the petitioner's care:
a. Contrary to the respondent's claim, she was not entitled to a jury trial at the transfer hearing, as a child's best interests and the community's concerns are adequately protected by a 5 hearing before a judge, § 17a-12 (a) contemplates a continuing role for the petitioner in monitoring a juvenile's well-being in the petitioner's custody and requires the court to conduct a review every six months to determine if the juvenile's commitment to the Department of Correction should continue, and the fact-finding prerequisites to the application of § 17a-12 (a) are better suited to a judge, who would have knowledge of the workings and the fundamentally different societal purposes of the Department of Children and Families, the Department of Correction, and the juvenile justice system.
b. In order to protect the constitutionality of § 17a-12 (a), the petitioner has the burden to adduce evidence that the transfer to the Department of Correction is warranted by clear and convincing evidence and that the juvenile subject to the transfer is a danger to himself, herself or others, or cannot be safely held under the petitioner's supervision, and some evidence must be adduced by the petitioner that the transfer is in the juvenile's best interest.
4. The respondent's claim that her guilty plea was unknowing or involuntary because she was not informed that she could be transferred to the Department of Correction was unavailing; because the transfer to the Department of Correction was not a direct consequence of the respondent's delinquency adjudication, the court had no constitutional obligation to canvass her as to the potentialities of § 17a-12 (a), and the record amply supported the conclusion that the court, during its canvass of the respondent, explained the direct consequences of her plea and gave her the opportunity to ask questions.
5. Because the respondent had been returned to the petitioner's custody and would reach the age of majority during 2015, there was no practical relief from the trial court's transfer order that could be provided to the respondent, and the judgment of the trial court was reversed.
James Jude Connolly, director of juvenile post conviction, with whom were Lindsey Guerrero, assistant public defender, and, on the brief, Joshua Michtom, assistant public defender, and Aaron J. Romano, for the appellant (respondent).
Michael Besso, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner Commissioner of Children and Families).
Sandra J. Staub and David McGuire filed a brief for the American Civil Liberties Union of CT as amicus curiae.
Lavine, Alvord and
[157 Conn.App. 829] The respondent, Angel R., appeals from the judgment of the trial court granting the motion filed by the petitioner, the commissioner of the Department of Children and Families (DCF), to transfer her from DCF's custody to the custody of the Department of Correction (DOC). On appeal, the respondent claims that General Statutes § 17a-12 (a) violates the federal and Connecticut constitutions on the ground that its application to the respondent deprives her of due process in the following ways: (1) the statute is impermissibly vague; and (2) the statute permits the court to order her transferred from the care of DCF to DOC without affording to her the procedural rights to which she is entitled, specifically, the right to a trial by jury, and the obligation that DCF prove its allegations by proof beyond a reasonable doubt. She claims, as well, that the court incorrectly denied her motion to dismiss DCF's transfer petition because her guilty plea in a prior delinquency proceeding to having violated General Statutes § 53a-167c [157 Conn.App. 830] was not knowing and voluntary. We agree, in part, with the respondent's due process claim regarding the state's burden of proof at a transfer hearing, and, accordingly, reverse the judgment of the trial court.
The court's memorandum of decision reveals the following undisputed facts and procedural history that are relevant to our disposition of the respondent's appeal. The respondent is a seventeen year old transgender female. She has been involved with DCF on and off since the age of five. Throughout her lengthy history with DCF, she has exhibited assaultive behavior toward staff members, other juveniles, and females. On November 21, 2013, the respondent was adjudicated as delinquent on the basis of her guilty plea to assault on an officer. She was thereafter committed to DCF pursuant to General Statutes § 46b-140 for a period not to exceed eighteen months. On the basis of this delinquency commitment, the respondent was placed at the Meadowridge Academy in Swansea, Massachusetts (Meadowridge).
During her two month placement at Meadowridge, the respondent evinced assaultive behaviors. On January 31, 2014, as a result of her assault on a staff person, the respondent was removed from Meadowridge and placed at the Connecticut Juvenile Training School.
[157 Conn.App. 831] On February 4, 2014, pursuant to § 17a-12 (a), DCF filed a motion to transfer the respondent to the John R. Manson Youth Institution (Manson), a high security institution run by DOC for young male offenders ranging in age from fourteen to twenty-one years old, usually with pending adult charges or serving adult sentences as a consequence of having been tried in the Superior Court as adults. On February 24, 2014, the respondent filed a motion to dismiss DCF's motion to transfer. After holding a series of evidentiary hearings and making findings of fact by a preponderance of the evidence, the court, on March 20, 2014, denied the respondent's motion to dismiss and followed with an articulation of its reasoning on April 8, 2014. Also, on April 8, 2014, the court granted DCF's motion to transfer the respondent and ordered that the respondent be transferred to the York Correctional Institution in Niantic (Niantic), a correctional institution for females of all levels of security operated by DOC. On May 6, 2014, the court filed a memorandum of decision in support of its April 8 order to transfer. This appeal followed. Additional facts will be set forth as necessary.
[157 Conn.App. 832] The statute at issue, § 17a-12 (a), provides: " When the commissioner, or the commissioner's designee, determines that a change of program is in the best interest of any child or youth committed or transferred to the department, the commissioner or the commissioner's designee, may transfer such person to any appropriate resource or program administered by or available to the department, to any other state department or agency, or to any private agency or organization within or without the state under contract with the department; provided no child or youth voluntarily admitted to the department under section 17a-11 shall be placed or subsequently transferred to the Connecticut Juvenile Training School; and further provided no transfer shall be made to any institution, hospital or facility under the jurisdiction of the Department of Correction, except as authorized by section 18-87, unless it is so ordered by the Superior Court after a hearing. When, in the opinion of the commissioner, or the commissioner's
designee, a person fourteen years of age or older is dangerous to himself or herself or others or cannot be safely held at the Connecticut Juvenile Training School, if a male, or at any other facility within the state available to the Commissioner of Children and Families, the commissioner, or the commissioner's designee, may request an immediate hearing before the Superior Court on the docket for juvenile matters where such person was originally committed to determine whether such person shall be transferred to the John R. Manson Youth Institution, Cheshire, if a male, or the Connecticut Correctional Institution, Niantic, if a female. The court shall, within three days of the hearing, make such determination. If the court orders such transfer, the transfer shall be reviewed by the court every six months thereafter to determine whether it should [157 Conn.App. 833] be continued or terminated, unless the commissioner has already exercised the powers granted to the commissioner under section 17a-13 by removing such person from the John R. Manson Youth Institution, Cheshire or the Connecticut Correctional Institution, Niantic. Such transfer shall terminate upon the expiration of the commitment in such juvenile matter." 
The respondent raises three claims on appeal with respect to the granting of DCF's motion to transfer. The first two issues implicate the respondent's due process rights under the United States and Connecticut constitutions. The due process claims relate to whether the statute in question is impermissibly vague and to whether the transfer hearing afforded to the respondent pursuant to the statute adequately protected her liberty interests. The third issue relates to whether the respondent's plea that resulted in a delinquency finding was knowing and voluntary. We take up each in turn.
As a preliminary matter, however, we must consider whether the issues raised on appeal are moot because, [157 Conn.App. 834] since the filing of this appeal, the respondent has been returned to the custody of DCF and also because she will attain the age of eighteen during this calendar year.
It is well established that " [m]ootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve." (Internal quotation marks omitted.) In re Emma F., ...