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11/20/91 W.L.

November 20, 1991


Appeal from the Superior Court of the District of Columbia; (Hon. Susan Holmes Winfield, Trial Judge)

Before Steadman, Schwelb, and Wagner, Associate Judges.

The opinion of the court was delivered by: Wagner

Wagner, Associate Judge: Appellant, now a fifteen year old, was adjudicated to be a child in need of supervision (CINS) for habitual truancy from school under D.C. Code § 16-2301 (8)(A)(i) (1989). A Disposition order was entered by the court on June 6, 1989 under the terms of which the child was committed restrictively for an indeterminate period not to exceed two years to the Department of Human Services of the District of Columbia (DHS). *fn1 The Disposition order also provided for the child's immediate placement at the Hoffman Home, a residential facility in Pennsylvania. After placement at the Hoffman Home, W.L. returned to court for an intermediate review on March 16, 1990. W.L. absconded from custody after the court proceeding, and an Order for Custody was issued on March 21, 1990 for the child's return. *fn2 W.L. was not located for two months, and upon his return to custody, the trial court entered an order for W.L. to be kept temporarily at the Receiving Home for Children (Receiving Home) and to be segregated from adjudicated delinquents because of his status as a CINS. The trial Judge denied W.L.'s motion for reconsideration, and on June 14, 1990, returned the child to the Receiving Home (with a similar segregation order) pending completion of psychiatric, psychological, and physical examinations, and an educational assessment and location of another residential facility which would accept him. On appeal, appellant argues that the order for W.L.'s placement at the Receiving Home violates D.C. Code § 16-2320 (d) (1989) which prohibits placement of children adjudicated in need of supervision in a facility for delinquents. Finding no error on this record, we affirm.

At the hearing on W.L.'s motion for reconsideration of placement, government counsel and Neil Hoffman an employee of the Receiving Home, represented that the Receiving Home is a facility for detained youth awaiting trial. However, Hoffman reported that adjudicated delinquent children are placed at the Receiving Home pursuant to orders of the Superior Court and that fifteen such children (or half of the population) were at the facility as of the date of the hearing. Only two other CINS children were at the Receiving Home during W.L.'s stay, and W.L. was allowed recreation periods with them. W.L. was given a private room, although he was on a unit where some committed delinquents were housed. Hoffman represented that children are placed on various units according to gender and size and that all children at the facility attend the same school and participate in therapy or counseling together.

Having determined that there was no alternative secure placement to assure that W.L. would remain available for the assessments necessary to facilitate an appropriate placement, *fn3 the trial court ordered that respondent be held at the Receiving Home and segregated from delinquent youths. *fn4 Upon entering the challenged order, the trial Judge emphasized repeatedly the requirement that W.L. not be commingled with delinquent children and that the re quirement of separation be observed for all activities, including school.

By the time of the argument on appeal, the trial court had ordered W.L. to be placed in a group home. W.L. was no longer being detained under the order appealed from. *fn5 Therefore, we determine first whether this development moots the issue raised on appeal. We hold that it does not, as the issue is one "capable of repetition, yet evading review." See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911). The Supreme Court has confined this exception to the mootness doctrine, absent a class action, to situations where: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975) (citing Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975)).

This court has declined to adhere strictly to the requirements set forth in Weinstein. See Lynch v. United States, 557 A.2d 580, 582 (D.C. 1989). The quasi-class action nature of a case, while a factor to be considered in a mootness challenge, is not a necessary condition to deciding an issue. Id. at 582-83. In Lynch, this court reaffirmed an earlier decision in which we declined to hold moot a challenge to a pretrial detention statute, although appellant entered pleas of guilty and was no longer held under the statute. United States v. Edwards, 430 A.2d 1321, 1324 n.2 (D.C. 1981) (en banc), cert. denied, 455 U.S. 1022, 72 L. Ed. 2d 141 , 102 S. Ct. 1721 (1982). The facts presented here are somewhat analogous to those presented in Edwards. In Edwards, appellant challenged his detention under a pretrial detention statute (D.C. Code § 23-1322 (1973)). We concluded that the limited time for pretrial detention brought the case within the mootness exception. Edwards, supra. The same rationale persuades us that the issue raised here on appeal is appropriate for review.

The District argued in its brief that W.L. could not reasonably be expected to be again in a status which would preclude his placement with adjudicated delinquents because the government planned to file a new CINS petition when W.L. returned to custody. Thus, appellee reasoned, any future order for W.L.'s detention at the Receiving Home would be within the purview of either D.C. Code § 16-2313 (b)(3) (which specifically authorizes the detention of CINS children in a facility for delinquents provided they are not commingled) or D.C. Code § 16-2320 (d) (which authorizes such a placement for children who previously have been found to be in need of supervision). Indeed, this court was notified after argument that W.L. has since been adjudicated delinquent. Thus, as to W.L., any prohibition of his future detention with other delinquents has been eliminated. However, the limited time that a child remains in the Receiving Home while awaiting placement in a foster home or an institution prevents full litigation of the issue before cessation of the challenged action. The presence of this factor warrants Disposition of the issue on the merits. See In re Morris, 482 A.2d 369, 372 (D.C. 1984) (the question whether emergency hospitalization was lawful was not rendered moot by change in patient's status to voluntary and subsequent discharge). Therefore, we hold that appellant's case is not moot.

The trial court's order was premised on the Conclusion that the controlling statute authorizes placement of a CINS child at the Receiving Home provided the child is not commingled with adjudicated delinquents. Appellant argues that although D.C. Code § 16-2313 (b)(3) so provides, a separate statutory provision precludes placement of CINS children in such facilities unless there is a second CINS adjudication. The section of the Code appellant relies upon reads as follows:

No child found in need of supervision, unless also found delinquent, shall be committed to or placed in an institution or facility for delinquent children; except that if such child has previously been found in need of supervision and the Division, after hearing, so finds, the Division may specify that such child be committed to or placed in an institution ore facility for delinquent children.

D.C. Code § 16-2320 (d) (1989).

A statute must be interpreted consistent with its plain meaning when its language is clear. Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc). The foregoing statutory provision does not state clearly that a second CINS adjudication is a prerequisite to a CINS child's placement in a facility for delinquents. Where the statutory language is ambiguous or otherwise unclear, we look to the legislative history for guidance in interpreting it. Id. at 754. We find that there is also some ambiguity in the legislative history of this section of the Code.

The history of 16-2320 (d) *fn6 explains the meaning of, and rationale for the provision as follows:

Also, the Senate District Committee has revised the provision in subsection (d) of proposed section 16-2316, District of Columbia Code, so as to implement the precise recommendation of the HEW Guide. Under the bill as reported a child found to be in need of supervision may at the outset be confined along with other such children only. The bill as introduced permitted the court to direct that such a child at the outset be confined with delinquents; but under the revised provision confinement with delinquents can be ordered only when the child's conduct in an institution or otherwise under treatment with others in his category in fact proves to be unsatisfactory. The reasoning approved by the committee in this regard is that, if confinement as a delinquent is appropriate at the outset, then a delinquency petition should be brought.

S. Rep. No. 620, 91st Cong., 1st Sess. 7 (1969). This explanation seems to suggest that although the original Disposition order cannot provide for the child's placement in a facility for delinquents, such a placement can be ordered if the child's conduct proves unsatisfactory in the facility designated initially. Id. However, the summary for the provision, which appears later in the report, states:

A child found to be in need of supervision cannot be placed in an institution or facility for delinquents unless he is also found delinquent, or unless he is alleged and found to be in need or (sic) supervision a second time and the Division specifically orders ...

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