IN RE ANGEL R.*
(AC 36692)
Lavine, Alvord and Bishop, Js.
Argued November 20, 2014—officially released June 16, 2015
(Appeal from Superior Court, judicial district of Fairfield, Juvenile Matters at Bridgeport, B. Kaplan, J.)
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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.
Opinion
BISHOP, J. 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
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.2 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.3 She was thereafter committed to DCF pursuant to
On February 4, 2014, pursuant to
The statute at issue,
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.
I
As a preliminary matter, however, we must consider whether the issues raised on appeal are moot because, 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., 315 Conn. 414, 423 (2015). ‘‘Because mootness implicates this court’s subject matter jurisdiction, it may be raised at any time, including by this court sua sponte.’’ State v. Charlotte Hungerford Hospital, 308 Conn. 140, 143 (2013). Accordingly, before reaching the merits of this appeal, we must address the threshold issue of whether the respondent’s claims are moot and, if so, whether we have jurisdiction over the matter on the basis of an exception to the mootness doctrine.
‘‘Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties.’’ (Internal quotation marks omitted.) New Image Contractors, LLC v. Village at Mariner’s Point Ltd. Partnership, 86 Conn. App. 692, 698 (2004). ‘‘When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’’ (Internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 754 (2003).
As noted, the respondent was returned to the custody of DCF on June 24, 2014; see footnote 5 of this opinion; additionally, the file reflects that she will reach the age of majority prior to the end of 2015. In its brief, while asserting that the matter is moot because the respondent has been returned to its custody, DCF also concedes that the matter may be reviewable under the ‘‘capable of repetition, yet evading review’’ exception to the mootness doctrine.7
‘‘To qualify under this exception, an otherwise moot question must satisfy the following three requirements: First, the challenged action, or the effect of the challenged action, by its very nature, must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.’’ (Internal quotation marks omitted.) We the People of Connecticut, Inc. v. Malloy, 150 Conn. App. 576, 583 (2014).
In the case of In re Steven M., supra, 264 Conn. 747, which concerned
Our Supreme Court’s mootness analysis from In re Steven M. is equally applicable to the case at hand. Here, the respondent was committed as delinquent pursuant to
II
At the outset, we set forth certain precepts that guide our constitutional analysis. ‘‘The constitutionality of a statute presents a question of law over which our review is plenary. . . . It is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy
Additionally, ‘‘this court has a duty to construe statutes, whenever possible, to avoid constitutional infirmities . . . .’’ (Internal quotation marks omitted.) State v. Cook, 287 Conn. 237, 245 (2008). ‘‘Further, in evaluating [a] defendant’s challenge to the constitutionality of [a] statute, we read the statute narrowly in order to save its constitutionality, rather than broadly in order to destroy it. We will indulge in every presumption in favor of the statute’s constitutionality . . . . In so doing, we take into account any prior interpretations that this court, our Appellate Court and the Appellate Session of the Superior Court have placed on the statute. . . . Finally, we may also add interpretive gloss to a challenged statute in order to render it constitutional. In construing a statute, the court must search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Indrisano, 228 Conn. 795, 805–806 (1994).
A
The respondent claims that
‘‘For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. . . . [T]o prevail on [her] claim, the [respondent] must demonstrate . . . that the statute, as applied to [her], deprived [her] of adequate notice of what conduct the statute proscribed or that [she] fell victim to arbitrary and discriminatory enforcement.’’ (Internal quotation marks omitted.) State v. Stephens, 301 Conn. 791, 801–802 (2011).
‘‘The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the
As noted, the statute in question,
The crux of the respondent’s vagueness argument is that
The facts here, which do not involve first amendment issues, defeat the respondent’s claim that the statute is void for vagueness as applied to her. Contrary to her claim of inadequate notice of proscribed behavior, the record amply supports the conclusion that the respondent exhibited physically dangerous behaviors while in the custody of DCF and was, in fact, adjudicated delinquent on the basis of a physical assault. In light of this history, the respondent’s claim that she was not on notice that her behaviors could reasonably be seen as dangerous to herself or others must fail. We conclude that 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. In sum, we are persuaded that a person of ordinary intelligence would understand, from a fair reading of the statute, that physically assaultive behaviors such as exhibited by the respondent would subject a DCF ward to the transfer provisions set forth in
B
The respondent next claims that
‘‘The requirements for a successful due process claim are well established. The
Finally, in this regard, we note that a due process analysis cannot be conducted in a vacuum. Our Supreme Court has repeatedly ‘‘stated that, [a] procedural due process challenge to the validity of [a statute] cannot proceed in the abstract. . . . It is a settled rule of constitutional adjudication that a court will decide the constitutionality of a statute only as it applies to the particular facts at hand. . . . A party who challenges the constitutionality of a statute must prove that the statute has adversely affected a protected interest under the facts of his particular case and not merely under some possible or hypothetical set of facts not proven to exist. . . . Therefore, [a] claim that a statute fails, on its face, to comport with the constitutional requirements of procedural due process reflects a fundamental misunderstanding of the law of due process. Due process is inherently fact-bound because due process is flexible and calls for such procedural protections as the particular situation demands. . . . The constitutional requirement of procedural due process thus invokes a balancing process that cannot take place in a factual vacuum.’’ (Citations omitted; internal quotation marks omitted.) State v. Long, 268 Conn. 508, 522–23 (2004). As noted by the United States Supreme Court: ‘‘[D]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . [D]ue process is flexible and calls for such procedural protections as the particular situation demands.’’ (Citation omitted; internal quotation marks omitted.) Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976); see also Jones v. Connecticut Medical Examining Board, 309 Conn. 727, 736 (2013).
In assessing the level of due process required in any particular judicial setting,
We turn now to an application of these principles to the procedural facts at hand. As a juvenile committed to DCF, the respondent is entitled to some level of due process in a hearing that could subject her to incarceration in an adult correctional facility. The question presented to us entails an assessment of the character and scope of such due process. To be sure, although juvenile court hearings need not conform to all requirements of adult criminal proceedings, juvenile proceedings ‘‘must measure up to the essentials of due process and fair treatment.’’ Kent v. United States, 383 U.S. 541, 562 (1966). Put another way and as observed by the United States Supreme Court: ‘‘[T]he applicable due process standard in juvenile proceedings . . . is fundamental fairness.’’ McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971).
But, while a juvenile is entitled to due process, the specific contours of that right, in the setting of juvenile proceedings, need not mirror adult proceedings. ‘‘Unlike an adult’s liberty interest, however, a juvenile’s liberty interest always is limited by the state’s independent parens patriae interest in preserving and promoting the juvenile’s welfare, and must be qualified by the recognition that juveniles, unlike adults, are always in some form of custody. . . . Thus, due process does not mandate elimination of all differences in the treatment of juveniles. . . . Moreover, just as a criminal conviction sufficiently extinguished the [adult] defendant’s liberty interest to empower the State to confine him in any of its prisons . . . unless the transfer to a different facility constitutes a major change in the conditions of confinement amounting to a grievous loss . . . a juvenile who already has been adjudicated delinquent and is in the custody of the state does not possess the same liberty interest as a juvenile who faces delinquency proceedings. A fortiori, a delinquent juvenile who faces transfer proceedings pursuant to
As a threshold matter, we address DCF’s assertion that our Supreme Court, in In re Steven M., supra, 264 Conn. 747, resolved all the due process issues presently raised by the respondent in the appeal at hand. DCF urges this court to rely on In re Steven M. as the sole appellate authority on
We consider next the respondent’s claim that she is entitled to a trial by jury. She makes this claim on the basis of her assertion that because, as a result of a transfer hearing, she could be transferred to DOC where she could be held in custody in an adult correctional facility in which all the other inmates were afforded the right to trial by jury, she should not be treated differently merely because of her juvenile status.
In McKeiver v. Pennsylvania, supra, 403 U.S. 528, the United States Supreme Court was confronted with a claim by a juvenile that because due process applies to juvenile delinquency proceedings, a juvenile should not be adjudicated delinquent without the benefit of a jury trial. Recognizing that post-Gault10 juveniles were entitled to certain due process rights, the court in McKeiver nevertheless declined to find that fundamental fairness dictated the right to a jury trial in juvenile proceedings, stating: ‘‘[W]e conclude that trial by jury in the juvenile court’s adjudicative stage is not a constitutional requirement.’’ Id., 545. Although this claim presents a difficult question because the result of a transfer order is that a juvenile is committed to a penal institution where only convicted inmates or those awaiting trial are housed, we believe that the court’s reasoning in McKeiver is applicable to a transfer hearing as well.11
We come to this conclusion, in part, on the basis of the protections embedded in
In addition to these statutory safeguards, there is the practical consideration that the fact-finding prerequisites to the statute’s application are better suited for the determination of a judge than by lay members of a jury. In order to make a transfer decision, a fact finder must consider whether such a transfer is in a child’s best interest, whether a child is dangerous to himself, herself or others, whether DCF cannot safely retain the child’s custody, and whether DOC offers a suitable environment for such a juvenile. Lay people, however, would not be required to have any knowledge of the workings of DCF or DOC or the juvenile justice system in order to be qualified as jurors. In balance, we believe that a child’s best interests and the community’s concerns are adequately protected by a hearing conducted before a judge without the need for a jury.
The respondent next claims that in pursuing a motion to transfer, due process
At the outset, we comment briefly on the character of evidence that must be adduced at a transfer hearing pursuant to
We turn next to the question of the level of burden of proof. In the case at hand, after hearing evidence over the course of six days, the court found, on the basis of a preponderance of the evidence, that the respondent was too dangerous to be housed at a facility operated by DCF and, accordingly, ordered her transferred to the custody of DOC.
Contrary to DCF’s claims, we conclude that the respondent has a liberty interest in not being transferred from the protective umbrella of DCF to the penal environment of a DOC institution such as Manson or Niantic. We are, of course, mindful of our Supreme Court’s dicta in In re Steven M.: ‘‘Unlike an adult’s liberty interest . . . a juvenile’s liberty interest always is limited by the state’s independent parens patriae interest in preserving and promoting the juvenile’s welfare, and must be qualified by the recognition that juveniles, unlike adults, are always in some form of custody.’’ (Internal quotation marks omitted.) Id., 763. In stating that a juvenile who has already been adjudicated a delinquent does not have the same liberty interest as an adult, the court in In re Steven M. did not conclude or even suggest that a juvenile is devoid of any liberty interest in not being confined in an adult correctional facility. To the contrary, our Supreme Court’s discussion in In re Steven M. must be read as being in harmony with the court’s salutary comments recently made in In re Jusstice W., 308 Conn. 652 (2012). There, the court opined: ‘‘Connecticut’s juvenile justice system is
We proceed with the acknowledgement that a juvenile, like an adult, is constitutionally entitled to proof beyond a reasonable doubt when charged with a violation of criminal law and, thereby, subject to a delinquency determination. See In re Winship, 397 U.S. 358 (1970); see also In re Jason C., 255 Conn. 565, 767 A.2d 710 (2001).
The respondent, however, is not in the same legal position as a juvenile, not yet committed to the state, who is facing a delinquency charge. There, a juvenile faces a risk of confinement, a significant loss of liberty. Here, to the contrary, the respondent had already sustained a loss of liberty by reason of the previous delinquency adjudication and attendant commitment. Thus, the respondent’s liberty interest is attenuated from that of a child who has not yet suffered a loss of liberty.
Nevertheless, such a child retains a liberty interest in not being transferred to an institution that operates under none of the child protective mandates embedded in legislation regarding the operations of DCF.
A comparison of the disparate missions of the two agencies is instructive. As indicated in
In contrast, DOC’s mission statement reads: ‘‘The [DOC] shall strive to be a global leader in progressive correctional practices and partnered re-entry initiatives to support responsive evidence-based practices aligned to law-abiding and accountable
‘‘In cases involving individual rights, whether criminal or civil, [t]he standard of proof [at a minimum] reflects the value society places on individual liberty.’’ (Internal quotation marks omitted.) Addington v. Texas, 441 U.S. 418, 425 (1979). ‘‘It is well established that, [w]here no standard of proof is provided in a statute, due process requires that the court apply a standard which is appropriate to the issues involved. . . . [I]n any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants. . . .
‘‘Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a fair preponderance of the evidence standard indicates both society’s minimal concern with the outcome, and a conclusion that the litigants should share the risk of error in roughly equal fashion. . . . When the [s]tate brings a criminal action to deny a defendant liberty or life, however, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. . . . The stringency of the beyond a reasonable doubt standard bespeaks the weight and gravity of the private interest affected . . . society’s interest in avoiding erroneous convictions, and a judgment that those interests together require that society impos[e] almost the entire risk of error upon itself. . . .
‘‘[The United States Supreme] Court has mandated an intermediate standard of proof—clear and convincing evidence—when the individual interests at stake in a state proceeding are both particularly important and more substantial than mere loss of money. . . . Notwithstanding the state’s civil labels and good intentions . . . this level of certainty [is] necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with a significant deprivation of liberty or stigma. . . .
‘‘In [Santosky v. Kramer, 455 U.S. 745, 769–70 (1982)], the United States Supreme Court held that, in a hearing on a petition to terminate parental rights, due process require[s] that the state prove statutory termination criteria by a clear and convincing evidence standard rather than by a fair preponderance of the evidence standard.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.) Fish v. Fish, 285 Conn. 24, 69–71 (2008).
In determining the appropriate standard of proof, and recognizing that a juvenile who has already been adjudicated as a delinquent does not have the same liberty interest as an adult criminal defendant or a juvenile who has not already been adjudicated, we are persuaded that the liberty interest at stake in being transferred from the custody of DCF to DOC is sufficiently great to warrant the requirement that, before ordering such a transfer, the court must be convinced by evidence greater than a mere preponderance that the requisites for transfer have been proven.
In granting a transfer motion under
Requiring this quantum and character of proof provides a framework that assures that implementation of the statute’s transfer provision is not tantamount to an abdication of DCF’s parens patriae responsibility to juveniles in its care.
III
The respondent’s final claim is that the court erred in finding that her plea, entered on November 13, 2013, was knowing and voluntary. In particular, the respondent argues that for her plea to be knowing and voluntary, she should have been informed that DCF had the ability to request her transfer from its custody to the custody of DOC because such a transfer constitutes a direct consequence of the plea. In response, DCF argues that the respondent’s placement under the supervision of DOC after her adjudication of delinquency is an indirect, collateral consequence and, therefore, the failure to inform the respondent of her potential transfer to the custody of DOC does not render her plea unknowing or involuntary. We agree with DCF.
The following additional facts are relevant to our resolution of the respondent’s claim. On November 13, 2013, the respondent entered a plea of guilty to the charge of having violated
After the canvass, the court found that the plea was ‘‘knowingly, intelligently, and voluntarily entered into with the adequate advice and effective assistance of counsel.’’ After accepting the plea, the court concluded that the respondent was ‘‘a convicted delinquent having been found guilty of assault on an officer . . . .’’ In addition, the court recited several procedural facts on the record, including the terms of a motion for out-of-state placement made by DCF. The court stated: ‘‘Basically, based on [the respondent’s] specialized needs and issues, [her] current placement in detention is not sufficient and that Meadowridge in Massachusetts is the best place for [her] based on [her] behaviors.’’ The court addressed the respondent and asked: ‘‘[I]t’s my understanding that you’re in agreement with this out-of-state placement and that you’ll go, is that correct?’’ The respondent replied: ‘‘Yes.’’ On the basis of the foregoing, the court granted the motion for out-of-state placement of the respondent and
We begin by setting forth the legal principles and standard of review that guide our analysis. ‘‘Our cases instruct that we conduct a plenary review of the circumstances surrounding the plea to determine if it was knowing and voluntary. . . . A defendant entering a guilty plea waives several fundamental constitutional rights. . . . We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.’’ (Citation omitted; footnote omitted; internal quotation marks omitted.) In re Fabian A., 106 Conn. App. 151, 157 (2008).
Next, ‘‘[a]n overview of the law governing pleas is necessary for our disposition of this issue. A plea of guilty or nolo contendere involves the waiver of several fundamental constitutional rights and therefore must be knowingly and voluntarily entered so as not to violate due process. . . . These constitutional considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. . . .
‘‘There is no requirement, however, that the defendant be advised of every possible consequence of such a plea. . . . Although a defendant must be aware of the direct consequences of a plea, the scope of direct consequences is very narrow. . . . The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.’’ (Citations omitted; internal quotation marks omitted.) In re Jason C., supra, 255 Conn. 571–73.
‘‘The United States Supreme Court clearly has established that constitutional due process protections apply in the juvenile setting.’’ Id., 576. ‘‘Both case law and Practice Book § 30a-4 mandate what a court must address in canvassing a juvenile respondent. In In re Jason C., [supra, 255 Conn. 570–71] our Supreme Court stated that when accepting a plea agreement, due process requires a court to advise a juvenile of possible extensions to the delinquency commitment.’’ (Footnote omitted; internal quotation marks omitted.) In re Fabian A., supra, 106 Conn. App. 158–59. Furthermore, the respondent cites Practice Book § 30a-4, which provides in relevant part: ‘‘To assure that any plea or admission is voluntary and knowingly made, the judicial authority shall address the child or youth in age appropriate language to determine that the child or youth substantially understands . . . (3) [t]he possible penalty, including any extensions or modifications . . . .’’
In the present case, the court advised the respondent that her adjudication as a delinquent meant that she could be committed to DCF for a period not to exceed four years, that the agreement was to commit her to residential placement with DCF for eighteen months, and that the eighteen month period could be extended. The court further informed the respondent that she had several rights with respect to a possible extension of the commitment, including the right to object, the right to request a hearing, and the right to be represented by an attorney. As argued by the respondent, the court did not discuss the possibility that she could subsequently be transferred from the custody of DCF to DOC.
As noted, due process does not require that the respondent be advised of
IV
Having determined that the respondent’s due process rights were violated on the ground that DCF failed to prove, by clear and convincing evidence, its entitlement to have the respondent transferred from its care to the supervision of DOC pursuant to
The judgment is reversed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of