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February 12, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Ricardo M. Urbina, Trial Judge

Before Rogers, Chief Judge, and Schwelb and Farrell, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: The reformers who championed the establishment of juvenile courts in the United States envisioned a system in which youthful law violators would receive treatment and other forms of rehabilitation and thereby become productive members of society without forever being tarnished by criminal records as a result of youthful indiscretions. See In re Gault, 387 U.S. 1, 15, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1966). While the visions of the reformers did not always comport with the reality of juvenile court systems, hope persists that the system will work. Even today this hope appears not to be totally unrealistic in view of the experts' Conclusion that "confined juveniles in the District of Columbia are, for the most part, neither violent nor chronic offenders." *fn1 Clearly, there is no lack of recognition of the need to expand the services that are available to such juveniles. On July 24, 1986, the parties agreed and the trial Judge approved a Consent Decree that called for "an assessment and study of the juvenile population in existing YSA juvenile facilities . . . to determine an appropriate configuration and design for the confinement of children in the custody of YSA." *fn2 In the view of the trial Judge the Decree represented a "monumental effort" to bring about correction of conditions for such youth.

In this appeal the District of Columbia contends that the trial Judge exceeded his authority under the Consent Decree in ordering the District to take actions to which it had not consented. Specifically, the District maintains that the Judge erred in ordering (1) five secure decentralized facilities that would replace existing secure institutions, (2) a cap of 60 on the number of juveniles in residential placements outside the District, where there is no representative plaintiff and the question had not been at issue in the case, (3) a case management system that is the functional equivalent of a system previously agreed upon by the parties, and (4) broad-ranging management reforms in YSA. It further contends that the Judge abused his discretion by ordering caps on the number of securely detained juveniles recommended by the Panel, but rejecting the Panel's recommendation for judicial reforms necessary to achieve the caps. Finally, the District contends that the Judge erred in enforcing the one-juvenile-per-room provision of the Consent Decree by entering a new mandatory injunction to which the District never agreed, requiring that the District transfer juveniles to shelter or group homes within ten days of the determination that they are suitable for less secure confinement. Appellees respond that in view of the District's pervasive noncompliance with the Decree for three and one half years, this court should, with one exception regarding decentralization of secure facilities, affirm because the trial Judge did not impose any new duties on the District, but simply fleshed out the provisions of the decree in a more specific remedial order.

Finding ourselves in total agreement with the parties and the trial Judge that improvements in the alternatives to secure detention are imperative for juveniles who do not require secure detention, we nevertheless conclude that portions of the Judge's orders exceeded his authority under the Consent Decree. We do so with some reluctance since the District's record of compliance with the Decree leaves much to be desired and the Judge exercised considerable restraint, on several occasions agreeing to the District's requests precisely because he acknowledged some of the bureaucratic and administrative problems that YSA was experiencing. Still, the Decree of July 24, 1986, was limited in scope and, in turn, limited what the Judge was authorized to do in ordering compliance with it.

The Consent Decree agreed to by the parties, and approved by the trial Judge, was limited to the design of placement alternatives for youth no longer requiring secure confinement, and expressly recognized that the requirement for secure placement of juveniles was subject to judicial authority beyond the control of the parties. Hence the orders of the trial Judge regarding decentralization of the secure facilities, placements outside the District of Columbia, and the management of the YSA were beyond the scope of the four corners of the Decree and beyond the Judge's authority. Otherwise we affirm. The trial Judge recognized that the demographics of securely committed juveniles had changed since the Panel's report in adopting the Panel's cap recommendations. The decree as well as the Judge's orders afforded the District the opportunity to adapt to changed circumstances and to submit new figures. See Order of April 8, 1988 and Memorandum Order "D," notes 14 & 16, infra. What the court did not do was ignore the District's agreement to implement a juvenile Justice system with a variety of community based services and thereby reduce the time youth were inappropriately housed in secure facilities. Further, in view of the provisions of the Consent Decree designed to minimize the time that a juvenile remained in a secure facility if found suitable for less restrictive confinement, and the provisions of Memorandum Orders "C" and "D," note 16, (infra), from which the District did not appeal, the Judge did not exceed his authority in ordering, over three years after the decree had been entered, that the District remove children within ten days.


Jerry M., representing appellees, the class of detained *fn3 and committed *fn4 children confined at the District of Columbia's secure juvenile institutions, filed suit challenging the failure of the District of Columbia and those officials *fn5 responsible for administering the juvenile facilities (District) to provide appropriate care, rehabilitation, and treatment to them in violation of the Constitution and the District of Columbia Code. After extensive pretrial discovery and briefing, the parties presented a settlement agreement to the trial Judge on July 17, 1986. Following a hearing on July 24, 1986, during which the parties responded to concerns raised by the trial Judge, and modified their agreement accordingly, the Judge approved the settlement agreement and entered the Consent Decree as a binding judgment.

The Consent Decree was based on three general principles. The first principle was "the right of children to be housed and provided services in the least restrictive setting consistent with the protection of the public, the youth's individual needs and with applicable court rules, statutory and constitutional provisions." The second principle was the right of a child not to be in secure confinement when capable of functioning effectively in a community based program. The third principle was that a child should remain in pretrial detention for the shortest possible period and in no event to exceed 30 days or, in the case of a pretrial shelter house placement, 45 days, but recognized that the presence of juveniles in pretrial detention for longer periods as a result of court delays would require the District to provide additional detention slots.

The Decree established a panel of three experts (Panel), one named by the appellees, one selected by the appellants, and one chosen by the parties, to "determine the appropriate number of juveniles in need of secure confinement in the District and to develop a system for appropriate care, services, and placement of securely confined juveniles in YSA custody." *fn6 The Decree also appointed a monitor to make findings and recommendations "concerning steps to be taken to achieve compliance." The Panel was to base its determination of the number of children who could be securely confined on its "assessment of the current population within YSA custody," and to "prepare a specific comprehensive plan for the design, development, and implementation of community-based programming and alternatives with specific objectives and time tables in accordance with the [three general] principles set forth in [the Decree]." In addition, the Panel was to establish "standards and procedures as well as a mechanism for ongoing review and community placement of all detained and committed children confined in YSA custody." *fn7 Provision was made for exceptions in emergencies and the housing of a number of children in secure facilities in excess of the number provided in the Panel's plan as a result of a court order. Other provisions concerned conditions at institutions and required housing limitations, *fn8 minimum standards for staffing and training, improvements in diagnostic services, treatment planning through individual service plans (ISP) and Team Leaders, as well as education, recreational, and mental health services and medical services. *fn9 The Decree further provided that appellees would not seek to have the District defendants held in contempt of court so long as they had taken "all reasonable steps, employing their utmost diligence, to ensure substantial compliance with" this Decree.

The Panel submitted to the trial Judge on March 11, 1987, its final plan of 48 recommendations which the Panel advised were "intrinsically connected to one another." The Panel explicitly stated, however, that it did "not attempt to address issues of implementation" and that its report "should not be considered a detailed work plan." *fn10 The recommendations revolved around four areas that the panelists considered to be prerequisites for change: YSA accountability based on an integrated case management system; expansion of the options in the service delivery system; emphasis on the neighborhood in an effort to strengthen families and thereby reduce delinquency; and a cooperative public-private partnership. Specifically, the plan included increased use of diversion from prosecution, temporary housing for youth whose parents cannot be located, increased use of "home detention," short term foster care, alternatives to secure detention, creation of therapeutic group homes for committed youths, creation of programs for juvenile drug users including new treatment facilities and youth-run businesses; regular review of placements; increased involvement of community groups in providing services; and improved record keeping and monitoring of placements. It also explicitly called for the Family Division to assure faster processing of juvenile cases within 180 days. *fn11 The plan envisioned a detention program approximately half the size of that then in existence. *fn12

The parties filed written responses to the plan, and on October 9, 1987, the trial Judge issued Memorandum Order "A," approving the Panel's plan with modifications. *fn13 The District thereafter filed a motion to alter or amend Memorandum Order "A" on the grounds that the trial Judge had altered the Panel's plan by eliminating the commitment of the judiciary to prompt hearings, and that the data relied on by the Panel were no longer current in light of the number of juveniles ordered held in secure detention and the sharp rise in the percentage of such juveniles with drug charges (from 19% to 40%). The Judge denied the motion on April 8, 1988. While acknowledging that the demographics, as the District maintained, appeared to have changed in the past year, the Judge placed the obligation on the District to present a proposal matching current realities. *fn14 On March 28, 1988, in response to Memorandum Order "A," the District had submitted what, in the Judge's view, was "an impressive sixty-eight (68) page plan to the Court that provided for an expanded continuum of care," that was "broader in some respects than Memorandum Order 'A,' on its face . . . not fully responsive to the Court's Order." The trial Judge issued written interrogatories to the parties on April 29, 1988, and following a hearing on May 9, 1988, issued Memorandum Order "B" on May 20, 1988, which reaffirmed the Panel plan and, "with reluctance," adopted the District's requests for extended periods of time in which to comply. *fn15 The District noted an appeal from Memorandum Order "A" on May 9, 1988, and appealed Memorandum Order "B" on June 20, 1988. The District also appeals the trial court's Memorandum Order "E," dated May 24, 1989, ordering sanctions and remedial relief based on its March 10, 1989, determination that the District was in contempt of both the Consent Decree and Memorandum Order "C," dated October 14, 1988. *fn16 All appeals were consolidated.


Waiver of Appellate Rights. *fn17 We address first appellees' threshold contention that the District's appeals must be dismissed because the plain meaning of the waiver section of the Consent Decree prohibits the District from appealing. *fn18 The District maintains that it did not waive its right of appeal from those aspects of the trial Judge's orders that exceed the Decree's delegation of authority to the Panel and the trial court. Included in these are the trial Judge's orders altering the Panel's final plan by accepting numbers ...

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