In re Darien S.

• Decision Date: 23 March 2004
• Docket Number: (AC 23748).
• Citation: 842 A.2d 1177,82 Conn. App. 169
• Court: Connecticut Court of Appeals
• Parties: IN RE DARIEN S.

82 Conn. App. 169

842 A.2d 1177

IN RE DARIEN S.¹

(AC 23748).

Appellate Court of Connecticut.

Argued December 5, 2003.

Officially released March 23, 2004.

West, McLachlan and Peters, Js.

James J. Connolly, supervisory assistant public defender, for the appellant (respondent).

Michael Besso, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Sonia S. Stoloff, assistant attorneys general, for the appellee (petitioner).

Opinion

PETERS, J.

After a juvenile has been committed as a delinquent to the custody of the commissioner of children and families (commissioner), he has a statutory right to a hearing on a permanency plan for his future placement. General Statutes § 46b-141 (b) and (c). The principal issue in this case is whether, at such a hearing, the commissioner is required to make an evidentiary showing of a compelling need for the juvenile's continued commitment before the expiration of his term of commitment. The trial court held that the statute did not include such a requirement. We affirm the court's judgment in favor of the commissioner.

As required by General Statutes § 46b-141 (d),² the commissioner initiated the present proceeding by filing a permanency plan for the respondent juvenile, Darien S. (juvenile). The stated purpose of the permanency plan was "[r]eunification of the [juvenile] with [his mother]."

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 § 46b-141 (d) in holding that the permanency plan hearing did not require the commissioner to show a compelling need for his continued commitment until the expiration of his term of commitment, (2) mischaracterized the permanency plan goal that was submitted by the commissioner and thereby relieved the commissioner of her greater burden of proving the validity of the permanency plan under § 46b-141 (d) (5) and, (3) violated his federal and state constitutional rights to due process by denying him a plenary hearing at which he could present evidence, and confront and cross-examine the state's witnesses.

Because each of the juvenile's claims involves questions of law, our review is plenary. See In re Haley B., 262 Conn. 406, 411, 815 A.2d 113 (2003). We agree with the judgment of the trial court.

I MOOTNESS

As a threshold matter, we must decide whether intervening events have caused the juvenile's appeal to become moot.³ We lack subject matter jurisdiction to consider the merits of a moot case. Loisel v. Rowe, 233 Conn. 370, 377-78, 660 A.2d 323 (1995).

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., 264 Conn. 747, 826 A.2d 156 (2003). These requirements are that similar actions in the future (1) will encounter similar time constraints precluding appellate review, (2) will affect a group of similar complainants for whom this litigant may reasonably serve as a surrogate and (3) will similarly raise a question of public importance. Loisel v. Rowe, supra, 233 Conn. 382. In In re Steven M., the court found that these requirements had been met by a juvenile challenging the validity of his transfer to the commissioner of correction at a time when the juvenile was no longer in custody. In re Steven M., supra, 755-56. These precedents govern this case.

We may proceed, therefore, to an examination of the merits of the juvenile's appeal in light of the applicable statutory law. Because a juvenile delinquent has no common-law right to a permanency plan, this appeal is governed solely by the enactments of our legislature unless these statutes are constitutionally defective.

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 § 46b-141 (d). The validity of this assertion raises a question of first impression. We know of no Connecticut case, and the parties have cited none, that discusses the constituent elements of a permanency plan for a juvenile delinquent.⁴

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.⁵ See the Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, §§ 1-310, 94 Stat. 500 (codified at 42 U.S.C. §§ 620-628, 670-679a [1988 Ed.]) and the Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, §§ 101-501, 111 Stat. 2115 (codified as amended in various sections of 42 U.S.C. [2000 Ed.]).⁶ As a condition for state access to federal funding, these statutes required the states to engage in permanency planning for children in temporary state custody. 42 U.S.C. § 670 (2000 Ed.); Suter v. Artist M., 503 U.S. 347, 350-51, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992).

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 42 U.S.C. § 671 (a) (15) (2000 Ed.). Within twelve months of foster home placements, state courts must hold permanency hearings to consider the future status of each child. 42 U.S.C. § 675 (5) (C) (2000 Ed.). Congress also requires states to make specific choices about the appropriate permanent placement of children in their care by specifying whether the child will be returned to a parent, placed for adoption, placed with a relative, referred to legal guardianship or, if a compelling reason is shown, placed in another planned permanent living arrangement. 42 U.S.C. § 675 (5) (C) (2000 Ed.); 45 C.F.R. § 1356.21 (b) (2) (i).

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 to receive federal funds.⁷ Specifically, the legislature has implemented a permanency planning process for all children in its custody, including those who are admitted voluntarily; General Statutes § 17a-11 (d); adjudicated as neglected or dependent; General Statutes § 46b-129 (k); or convicted as delinquent. General Statutes § 46b-141 (d).

Notably, the last of these enactments, § 46b-141, the statute presently at issue, has no direct relationship to congressional concerns about delay in the permanent placement of neglected children. Nonetheless, the statute borrows from federal law in requiring reasonably prompt permanency planning.

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.⁸ We now turn to the precise claims raised by the juvenile.

III 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 hearing required by § 46b-141 (d) and a hearing on the continuation of his commitment to the custody of the commissioner. The trial court held that § 46b-141 (d) does not require the commissioner, at a permanency hearing, to establish the basis for delinquent's continued commitment until the expiration of his term of commitment. We agree with the trial court.

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 § 46b-141 (e),⁹ for termination of his commitment before the permanency plan hearing.¹⁰ He bases his claim on the fact that the goal the court approved, pursuant to § 46b-141 (d) (1), included the phrase "revocation of commitment." In response, the commissioner argues that the type of "revocation" contemplated at a permanency plan hearing is a goal of future rather than immediate revocation of commitment. We agree with the commissioner....