In re Darien S.
- Reporters:
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- Before:
- Peters
Opinion
After a juvenile has been committed as a delinquent to the custody of the commissioner of children and families (commissioner), he has a statu-toiy right to a hearing on a permanency plan for his future placement.
As required by
On September 4, 2002, the trial court held a hearing, at which the juvenile was represented by counsel, to review the permanency plan. After determining that the permanency plan was in the best interest of the juvenile, the court approved its “goal of revocation of commitment and placement of the [juvenile] with the mother . . . .” The juvenile has appealed from that judgment.
The underlying facts are undisputed. The juvenile was first committed to the custody of the commissioner on September 28, 2001, as a result of his conviction as a delinquent for violation of a court order, interference with a police officer and assault of a police officer. His subsequent conviction for assault on commission personnel led to the extension of his commitment until October 16, 2003.
The juvenile raises three issues in his appeal from the trial court’s approval of the commissioner’s permanency plan. He claims that the court (1) misconstrued
Because each of the juvenile’s claims involves questions of law, our review is plenary. See In re Haley B.,
MOOTNESS
As a threshold matter, we must decide whether intervening events have caused the juvenile’s appeal to become moot.
The issue of mootness arises out of the fact that, on October 16, 2003, during the pendency of this appeal, the juvenile’s commitment expired. As a result, the commissioner no longer has any jurisdiction over him. It follows, as the parties concede, that this court’s judgment cannot affect the rights of this juvenile.
The parties argue, however, that we should nevertheless consider this appeal on its merits because the juvenile’s claims fall under the “capable of repetition, yet evading review” exception to the mootness doctrine. We agree.
An otherwise moot question may qualify for review under the “capable of repetition, yet evading review” exception if the appeal meets three requirements recently reiterated by our Supreme Court in In re Steven M.,
II
HISTORY OF PERMANENCY PLANS
The juvenile’s principal claim on appeal is that the obligation to present a permanency plan for judicial approval inherently encompasses the obligation to establish the necessity for a juvenile’s continued commitment to the commissioner. In his view, such an obligation is implicit in the text of
Because our statute is modeled on permanency planning as a matter of federal law, it is useful to review the history of federal permanency plans for children who have been removed from their parents. Federal permanency planning arose first under federal statutes concerning neglected children. Congress sought a remedy for children who, after removal from their parents, were languishing in foster care rather than being placed permanently in adoptive homes.
Current federal law for permanency planning requires states to institute plans demonstrating “reasonable efforts” to reunify abused and neglected children with their parents after the children’s placement in foster care. See
In response to these federal initiatives, our legislature passed several pieces of legislation to keep the state in compliance with federal law and thereby to continue
Notably, the last of these enactments,
No Connecticut appellate court has had the opportunity to consider and to interpret permanency plans as applied to delinquents. The novelty of our inquiry is underscored by the apparent absence of analogous cases in other jurisdictions.
Ill
CHALLENGE TO AN ONGOING COMMITMENT AT A PERMANENCY HEARING
The juvenile renews in this court his claim that there is a mandatory linkage between a permanency plan
From the outset of the permanency plan proceedings, the juvenile consistently has argued that the commissioner had an obligation to show a compelling reason for the continuation of his commitment. Concededly, he did not himself file a motion, pursuant to
We must decide the scope of a
On its face,
Furthermore, the significance of the absence of a requirement to prove the necessity for a continued com
The arguments that the juvenile offers in rebuttal of this textual analysis are unpersuasive. First, he maintains that we should read the statutory procedures that have been established in the abused-neglect context into delinquency proceedings. Second, he posits that the trial court had inherent power to terminate a com
We conclude, therefore, that the trial court properly construed
IV
DISCREPANT CHARACTERIZATIONS OF PERMANENCY PLAN GOAL
Even if every placement plan does not require proof of the need for continued commitment, the juvenile argues that his case is different because of a discrepancy between the wording of the commissioner’s proposed permanency plan and the court’s permanency plan order. According to the juvenile, as a result of this discrepancy, the validity of the permanency plan order must be tested in accordance with the stricter mandate of subdivision (5) of
The verbal discrepancy that is the focus of the juvenile’s claim is undeniable. In the commissioner’s plan, submitted on a standard commission form, she recommended that, in the best interest of the juvenile, the
Asked to clarify its ruling with respect to this issue, the court reaffirmed that the “[commissioner’s] permanency plan goal of reunification with mother is in the child’s best interest.” As a result, the court held, “in accordance with the language of [
According to the juvenile, the commissioner’s omission of the words, “revocation of commitment,” in her permanency plan proposal barred the court from treating the plan as conforming with the placement goal of reunification and revocation of commitment set out in
Applying the rules of statutory construction described previously, we must examine the text of
As an initial matter, the juvenile assumes that the statute’s articulation of the goal of “revocation,” as specified in
For similar reasons, we can find no legal significance in the commissioner’s recommendation that the juvenile be reunified with his mother without an express reference to termination of his commitment. Indeed, one could envisage a plan for reunification that would involve supervised home visits during the remainder of the period of commitment. During this period, the commissioner would have had the right to revoke the commitment early;
Furthermore, a logical extension of the juvenile’s argument would be the creation of a new permanency goal of “reunification, without revocation” as an example of the “other planned permanent living arrangement” goal articulated in
In light of these considerations, we conclude that the trial court properly approved the commissioner’s permanency plan goal of revocation and reunification as articulated in
V
DUE PROCESS CHALLENGE
The juvenile’s final claim is that the trial court violated both his federal and state constitutional rights
At the outset, we note those issues on which the commissioner and the juvenile agree. It is common ground that a committed delinquent is entitled to participate in a “permanency hearing,” at which “the court shall review and approve a permanency plan that is in the best interest of the child . . . .”
Moreover, the juvenile had a right to contest the merits of his commitment at the time of his initial commitment. At that juncture, he and his parents had due process rights to counsel, cross-examination, confrontation and notice of charges, and to present their own testimony. See
Rather, as we have already held, a permanency hearing pursuant to
In conclusion, we hold that the trial court properly construed the terms of
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
This issue was raised sua sponte by this court prior to oral argument.
A few cases have described the permanency planning process for neglected children in the context of a proceeding for the termination of parental rights. See, e.g., In re Candace H.,
See L. Adler, “The Meanings of Permanence: A Critical Analysis of the Adoption and Safe Families Act of 1997,” 38 Harv. J. on Legis. 1, 2 (2001).
Our Supreme Court also expressed an early concern for the placement of foster care children. “The well-known deleterious effects of prolonged temporary placement on the child . . . makes continuing review by [the commissioner] of all temporary custody and commitment cases imperative. Where appropriate, the agency can and must take unilateral action either to reunite families or to terminate parental rights as expeditiously as possible to free neglected children for placement and adoption in stable family settings.” In re Juvenile Appeal (83-CD),
See, e.g., 44 H.R. Proc., Pt. 15,2001 Sess., p. 5048, remarte by Representative Gail K. Hamm (“[t]he amendment [to our child protection laws] makes numerous changes to conform our state law to the federal Adoption and Safe Families Act of . . . 1997”); 44 H.R. Proc., Pt. 23, 2001 Spec. Sess., p. 7940, remarks by Representative John W. Thompson (“[The amendments to
The sparseness of out-of-state case law may be explained by the fact that while all fifty states have adopted permanency plan procedures for abused and neglected children, only five other states have adopted similar procedures for delinquent children. These five states are California, Kansas, Kentucky, New York and Wisconsin. See
The trial court noted in its memorandum of decision that the juvenile’s counsel intended to file a motion for termination but never explicitly did so. The reason for the juvenile’s decision not to file a motion pursuant to
Because the relevant statutory text and the relationship of that text to other statutes is not plain and unambiguous, we need not consider the effect of Public Acts 2003, No. 03-154, § 1. Jones v. Kramer,
See, e.g.,
The legislature’s choice to require the commissioner to show why a commitment should be continued in the abused-neglect context and not in the delinquency context may be explained by the relevant term limits. In 2001, the legislature amended
We need not, therefore, decide what proof is required to show a “compelling need.”
The juvenile has not offered any analysis of his claims under our state constitution. We decline, therefore, to discuss the merits of his state constitutional law representations.
The court’s decision did not deny the juvenile or his parents or guardians the opportunity to file an independent motion for termination of the commitment at any time.
In his reply brief, for the first time on appeal, the juvenile challenged the commissioner’s representation that he had agreed to the substantive terms of the permanency plan. We decline to review the merits of 1his contention.
First, as a procedural matter, we have repeatedly held that a reply brief is not the proper vehicle for curing an omission in the appellant’s brief. See, e.g., State v. Wilson,
Second, in addition to the importance of providing notice and an opportunity to reply to the opposing party, another policy reason for limiting the review of claims initially raised in a reply brief is that it encourages consistency. There was evidently confusion at trial arising out of disagreement about the nature of the juvenile’s equivocal objection to the permanency plan. Analytically, the question was whether acquiescence in the proposed plan meant acquiescence only in the goal of reunification with the mother or whether it also meant acquiescence in the timing of this reunification. This verbal sparring should not obscure the undeniable fact that the juvenile wanted immediate reunification while the commissioner wanted to postpone the reunification until the expiration of the juvenile’s term of commitment. The juvenile apparently was concerned about the place of his commitment for the remainder of his term.
We leave to another day the type of hearing afforded to a juvenile who properly objects to the terms of a permanency plan.