IN RE TYRIQ T.
Supreme Court of Connecticut
DISSENT
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EVELEIGH, J., with whom ROBINSON, J., joins, dissenting. I respectfully dissent. Until today, this court has never held that an interlocutory order that requires a determination of the best interests of the child was not immediately appealable. In fact, “[t]his court has a long history of concluding that, within the context of family mаtters, orders that would otherwise be considered interlocutory constitute appealable final judgments.” Khan v. Hillyer, 306 Conn. 205, 213, 49 A.3d 996 (2012). The statute governing the discretionary transfer of cases from
The majority holds that, in light of the genealogy of
Furthermore, I disagree with the majority‘s failure to analyze the question of whether an order under
In my view, statutory language currently set forth in
I agree with the factual and procedural history set forth by the majority in its opinion. I agree with the majority that, in the first instance, “[w]hether the legislature intended discretionary transfer orders issued pursuant to
I would add, however, the following regarding final judgments: “The jurisdiction of the appellate courts is restricted to appeals from judgments that are final.
With these principles in mind, and in accordance with
Nevertheless, when considering
The state asserts, however, that the absence of any language indicating that a transfer pursuant to
I begin with the history of
Id., 306-307. At that time, the statute governing the discretionary transfer of juvenile cases to the regular criminal docket,
The statute considered in In re Juvenile Appeal (85-AB),
Since our decision in the case of In re Juvenile Appeal (85-AB), the legislature has made various changes to the statutory language governing the discretionary transfer of juvenile cases to the regular criminal docket. Initially, the legislature responded to this court‘s decision in In re Juvenile Appeal (85-AB) by adding explicit statutory language making such transfers immediately appealable. See
In 1994, the legislature convened a special session to address gun violence and, therein, undertook a revision of the statute governing mandatory transfers in relation to certain gun related offenses. See
The 1986 amendment that made transfers subject to an interlocutory appeal evinced the intention of the legislature unequivocally; it added specific language to
I recognize, however, that the legislative history of the statutory language governing transfers may best be described as equivocal, with supportive arguments being offered on both sides of the issue depending upon the legislator whom one chooses as authority. For instance, we stated in In re Michael S, supra, 258 Conn. 630-31 n.11 as follows: “We note that the problem presented by aging juveniles was recognized by the legislature when it enacted
Further, when the legislature undertook a more сomprehensive reform of the statutes governing the juvenile justice system the following year, the removal of the provision regarding interlocutory appeals from the statute governing discretionary transfers was never explicitly discussed. See 38 H.R. Proc., Pt. 8, 1995 Sess., pp. 2933-42, remarks of Representative Lawlor. In fact, during legislative debate on the 1995 reforms, Representative Dale Radcliffe, a vocal opponent of the initial version of the bill because it failed, in his view, to transfer enough children to adult court, criticized the amendment
On the basis of this legislative history, I would conclude that the intent of the legislature in removing the statutory language indicating that a transfer represented a final judgment for the purpose of an interlocu-tory appeal is far from definitive. In my view, it is so unclear that we must resort to a Curcio analysis in order to determine if an appeal should be allowed. As I stated previously in this opinion, “[i]n some instances, however, it is unclear whether an order is an appealable final judgment. In the gray area between judgments which are undoubtedly final and others that are clearly interlocutory . . . this court has adopted the following test, applicable to both criminal and civil proceedings: An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, [supra, 191 Conn. 31].” (Citation omitted; internal quotation marks omitted.) Solomon v. Keiser, supra, 212 Conn. 746.
I also would conclude that, in view of the many judicial opinions and scientific studies which have changed the entire landscape of juvenile law, it is necessary to reevaluate our conclusions in In re Juvenile Appeal (85-AB), which concluded that discretionary transfers pursuant to
I would conclude that we must reexamine this court‘s Curcio analysis in In re Juvenile Appeal (85-AB) because, in the years since that opinion was issued, there have been numerous substantial changes to our understanding of juvenile justice principles. For instance, since that time,
An examination of these seminal United States Supreme Court cases involving juvenile justice is instructive to our understanding of the changing views of juvenile justice. In Roper v. Simmons, supra, 543 U.S. 555-56, the United States Supreme Court reversed itself on a question, presented just sixteen years earlier in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), of whether the eighth amendment to the United States constitution permits imposing the death penalty on a person convicted of a crime committed as a minor. In holding that the execution of such offenders was unconstitutional, the United States Supreme Court relied heavily on the large number of states that had abolished the execution of juvenile offenders since the Stanford ruling. Roper v. Simmons, supra, 568. In explaining this trend, the court cited three reasons: (1) “[A]s any parent knows and as the scientific and sociological studies . . . tend to confirm, [a] lack of maturity and an underdeveloped sense оf responsibility are found in youth more often than in adults and are more understandable among the young“; (2) “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure“; and (3) “the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.” (Internal quotation marks omitted.) Id., 569-70.
Two years after Roper was decided, Connecticut joined the vast majority of sister states in extending juvenile court jurisdiction to sixteen and seventeen year olds. See
In In re Juvenile Appeal (85-AB), supra, 195 Conn. 312-13, this court considered whether the exceptions to the final judgment rule set forth in State v. Curcio, supra, 191 Conn. 31-34, were applicable to juvenile transfer orders. As I explained previously in this opinion, Curcio establishes that “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31.
Tyriq T., the respondent in this case, does not claim that the first Curcio exception applies. The Court in In re Juvenile Appeal (85-AB) considered two arguments regarding the second prong of Curcio. First, it considered the loss of privacy because matters are held in public in the adult court as opposed to the privacy of the juvenile court. In re Juvenile Appeal (85-AB), supra, 195 Conn. 307-308. Second, there was concern about the juveniles having direct contact with the adult prison population. Id., 310. The court held that the first ground did not satisfy the second prong of Curcio and assumed that the Department of Correction would provide children in its custody with age appropriate services or transfer them to any other appropriate state institution as their needs required. Id., 308 and 310 n.5.
In 2007, the legislature heard testimony from then Commissioner of Correction, Theresa Lantz, indicating that sixteen and seventeen year old children in the custody of the Department of Correction were not receiving developmentally appropriate services in the way they would if they were in the juvenile system, notwithstanding the creation of a special facility for them. Commissioner Lantz testified as follows: “I took all the [sixteen] and [seventeen] year olds out of the jails. . . . And we‘ve tailored programs for that particular population. . . . And so one of the things that we‘ve really tried to concentrate [on] is giving them specific programs, but we don‘t provide the same level of services that the juveniles get in the juvenile court system.” Conn. Joint Standing Committee Hearings, Executive and Legislative Nominations, Pt. 1, 2007 Sess., pp. 229-30.
The admitted inadequacy of services provided to children held in the custody of the Department of Correction—even when they are segregated from adult prisoners—presents a very real risk of irreparable harm when considered in the context of the current understanding of the importance of the adolescent years to human cognitive and emotional development. “Adolescence is a crucial and necessary period of plasticity whеn brain circuitry and behavior are beginning to be established. These changes in brain circuitry and functioning that occur during adolescence most significantly impact brain regions associated with response inhibition, planning, the calibration of risk and reward, and emotion regulation. Moreover, the opportunities and constraints created by a child‘s environment play an important role in this period of development.” (Footnotes omitted.) A. Giannetti, “The Solitary Confinement of Juveniles in Adult Jails and Prisons: A Cruel and Unusual Punishment,” 30 Buff. Pub. Int. L.J. 31, 45-46 (2011-2012). “Once the developmental window passes for a juvenile, the brain cannot go back and redevelop at some point in the future; the developmental effects are likely permanent.” Id., 46-47.
It is important to note the long-term effects of the inadequate provision of services to the children when they are in adult detention. As Attorney Christina Ghio noted when she testified in 2007 on behalf of the Office of the Child Advocate in favor of legislation to raise the juvenile jurisdiction age: “The inadequacy of the adult criminal system to address the emotional and developmental needs of teenagers is substantiated through research demonstrating that youth incarcerated in adult facilities are more likely to reoffend and commit more serious crimes than youth who are tried and treated in the juvenile system for the same crimes.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 19, 2007 Sess., p. 6096. Research has shown that even facilities specifically designed for children tend to have suboptimal educational outcomes, and to provide inadequate ancillary services such as special
Legal developments subsequent to the change in the age of juvenile jurisdiction in Connecticut indicate that the evolution in legal understanding of the needs of adolescents has continued. First, in 2010, the United States Supreme Court ruled that life imprisonment without parole for crimes committed by juveniles was also unconstitutional. See Graham v. Florida, supra, 560 U.S. 74. In Graham, the United States Supreme Court relied in a large part on the reasoning of Roper, concluding that “[n]o recent data provide reason to reconsider the [c]ourt‘s observations in Roper about the nature of juveniles. As the petitioner‘s amici point out, developments in psychology аnd brain science continue to show fundamental differences between juvenile and adult minds.” Id., 68.
Then, in 2012, the Connecticut legislature provided the detailed procedure, at issue in this case, for determining which juvenile cases are transferred to the adult criminal docket. See
As this testimony before the legislature demоnstrates, because of the unique nature of juvenile court and the unique services provided there, a juvenile who is transferred from juvenile court to adult court suffers an irreparable harm. The harm suffered by a wrongly transferred juvenile is truly irreparable, for when “the developmental window passes for a juvenile, the brain cannot go back and redevelop at some point in the future.” A. Giannetti, supra, 30 Buff. Pub. Int. L.J. 46-47. I would add that, in my view, the lack of privacy is irreparable. Once the juvenile has a public hearing he cannot go to a judge to retrieve his privacy. Further, we
As I explained previously in this opinion,
Further, the very presence of the best interests test is an important new element in any consideration under the second prong of Curcio. It is my position that this statute has changed so substantively that any resort to an analysis based upon its genealogy is misplaced. A hearing regarding the best interests of the child was simply not required in prior revisions of the statute. The adequacy of that hearing and the court‘s findings must be subject to appellate review before the transfer is completed. If there is no review at that time, in my view, the purpose and meaning of Curcio has become meaningless. In State v. Fernandes, supra, 300 Conn. 127, this court held that “[t]herefore, when, as here, treatment as a juvenile is the presumptive norm, and treatment as an adult is the exception, the right to juvenile status vests in the juvenile, and the discretionary transfer to criminal court, which is a revocation of juvenile status, constitutes a deprivation of a liberty interest cognizable under the due process clause.” In order to protect these due process rights the legislature now requires that the court consider, as one of the requirements of transfer, that the best interests of the child will not be served by maintaining him in the juvenile system. This required finding represents a sea change in the statute that did not exist
We have previously determined that orders of temporary custody under
As the foregoing demonstrates, this court has routinely determined that, where the individual best interests of a child are concerned, orders affecting those interests are appealable final judgments. This is the harmonious body of law which, in my view, we should maintain. In fact, my research has not revealed a case involving a statute that contained language regarding the “best interests” of a child in which this court has not allowed an immediate appeal from an interlocutory order of any kind. Certainly, the revocation of juvenile status, which we have held to be a liberty interest; see State v. Fernandes, supra, 300 Conn. 111; must constitute an appealable judgment under Curcio. Indeed, once the juvenile is transferred he loses valuable services and his privacy. Further, he loses the right to have his detention reviewed every fifteen days. He may lose the right to be released to his parents or guardian, or other suitable person or agency without the possibility of having to incur the expense of posting a bond, which may or may not become problematic. In this case, the required finding regarding best interest was recently added to the statute. When a court makes a ruling that may affect those interests, it follows that Curcio requires that ruling to constitute an appealable final judgment.
The opinion of the majority, in my view, leads to the absurd result that before a juvenile can challenge a judge‘s decision to transfer the juvenile to adult court, the juvenile must give up his or her right to privacy, be hindered by a public criminal record, and give up valuable services that may aid his or her development while an appeal is pending. The majority contends that this result is mandated by the deletion of the final judgment wording in the statute. As noted earlier, I respectfully disagree with this conclusion because the wording of this statute is completely different from the earlier versions, and both our case law and our acceptance of scientific studies regarding juveniles mandate a different result. There are specific findings
During legislative debates in 1994, some of the legislators remarked that the final judgment clause should be removеd from the mandatory transfer provision because the transfer appeals took too long. It is noteworthy that the appellate system of the Judicial Branch of this state has recognized this deficiency and instituted a system in which all juvenile appeals are expedited and the number of extensions has been significantly reduced. Presently, the average case takes a total of approximately six months from the time the appeal is filed until the appellate decision. In the Appellate Court the period is 185.94 days. In the Supreme Court the period is 183.44 days. These statistics demonstrate a vast improvement in the time period within which an appeal involving juvenile matters is presently heard.3 In the present case, the respondent was transferred to adult court on November 15, 2012. The order was not stayed. At the time of oral argumеnt on March 20, 2014, his case still had not been heard in adult court. He has lost sixteen months of services he could have had in juvenile court. He has also lost the benefit of having sixteen months of supervision by a juvenile probation officer. His hearings have been open to the public, and he now faces the possibility of having a criminal record. How could this transfer have possibly been in his best interests? If indeed, the 1994 act omitted the provision providing for an immediate appeal from mandatory transfers was because those appeals took too long, the pendulum has swung 180 degrees; in the absence of a speedy trial motion, it takes far longer to try the juvenile in adult court, compared to the time in which the juvenile could have an appeal heard in the appellate system.
I would, therefore, conclude that the discretionary transfer order of a juvenile from the Superior Court for juvenile matters to the Superior Court for adult matters meets the second prong of Curcio and, therefore, is an appealable interlocutory order. In view of the potential irreparable harm to the juvenile, I would conclude that a stay should be in place while the appeal is pending, and the juvenile should continue to receive juvenile services during the course of the appeal. He should also continue to be supervised by his juvenile probation officer. The effect on both the juvenile and his or her family is too devastating to allow a discretionary order to languish while the juvenile endures a criminal trial without the benefit of having the transfer order reviewed by an appellate court.
I would conclude both that the order was an appealable final judgment under Curcio and that the best interests of the juvenile demanded that he stay within the jurisdiction of the Superior Court for juvenile matters while the appeal was pending. Accordingly, I would reverse the judgment of the Appellate Court. Therefore, I respectfully dissent.