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In re K.G.

Court of Appeals of The District of Columbia

February 15, 2018

In re K.G., Appellant.

          Argued October 7, 2017

         Appeal from the Superior Court of the District of Columbia (DEL-440-17) (Hon. Jennifer M. Anderson, Trial Judge)

          Terrence Austin, Public Defender Service, with whom Samia Fam, Jaclyn S. Frankfurt, and Stefanie Schneider, Public Defender Service, were on the brief for appellant.

          John W. Donovan, Assistant Attorney General, with whom Karl Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief for appellee.

          Before Beckwith and Easterly, Associate Judges, and Ruiz, Senior Judge.


          PER CURIAM

         On further consideration of the court's October 8, 2017, judgment that reversed the trial court order detaining appellant, remanded the case for further proceedings, and stated that an opinion would follow and it appearing that the mandate previously issued, it is

         ORDERED, sua sponte, that the Clerk shall recall the mandate and issue the attached opinion explaining the court's October 8, 2017, judgment.


         Under our juvenile delinquency system, the District of Columbia recognizes that children, because of their cognitive and emotional immaturity, should not be treated like adults. This differentiation applies across the board to all decisions made in the life of a juvenile delinquency case, including a detention decision under D.C. Code §§ 16-2310 and -2312 (2017 Supp.), the subjects of this opinion.[1] Under D.C. Code § 16-2310, the default prior to final disposition is not to detain children alleged or even proven to have committed delinquent acts. Instead, the statute favors keeping children with their families and communities as they receive beneficial rehabilitative services. Recent amendments to the detention statute have only reinforced that detention is a last resort, authorized only (1) if, after an assessment of the individual child and the particular circumstances, the trial court concludes detention is either required "to protect the person or property of others from significant harm" or necessary "to secure the child's presence" in court, or (2) as a narrow exception to (1), if a child alleged to have committed a "dangerous crime"-limited to specified gun crimes-fails to demonstrate detention is not warranted. D.C. Code § 16-2310 (a).

         In this case, the information presented to the trial court-the fact of K.G.'s new arrest for commission of another drug offense while his juvenile case was pending and his failure to comply with some conditions of his release-was legally insufficient to sustain the trial court's determination that the detention of K.G. was "required to protect the person or property of others from significant harm." D.C. Code § 16-2310 (a)(1). K.G. took an interlocutory appeal pursuant to D.C. Code § 16-2328 (2013 Repl), and this court issued an order, within the requisite statutory timeframe, see infra note 33, reversing the trial court's decision. See Appendix. We now explain our reasoning.

         I. Facts and Procedural History

         On April 22, 2017, the District charged K.G., then seventeen, with one count of possession of a controlled substance (cocaine) with intent to distribute, and one count of possession of a controlled substance (cocaine).[2] K.G. initially remained in his grandmother's care but was later placed in shelter care, i.e., a physically unrestricted facility, D.C. Code § 16-2301 (14) (defining shelter care).[3] After entering a plea of involvement to one count of possession of cocaine, K.G. was returned to the custody of his grandmother, pending disposition.

         K.G. returned to court on October 3 for his dispositional hearing, but his hearing did not go forward. Instead, K.G.'s probation officer reported to the trial court that K.G. had been arrested on August 30, 2017, and, because he was now eighteen, had been charged as an adult with two counts of distribution of a controlled substance (cocaine) and one count of possession of a controlled substance (cocaine) with intent to distribute.[4] The trial court in the adult case had released K.G. to the community, where he had apparently resided without further incident. But now, almost five weeks later, the Office of the Attorney General (OAG), litigating this case on behalf of the District government, asked the trial court in his juvenile case to remove K.G. from the community and place him at the Youth Services Center (YSC), a secured facility.[5]

         Counsel for K.G. opposed the government's request and argued that detention was not justified under the juvenile detention statute as recently revised. Counsel emphasized that there was "no indication that [K.G.] was armed, or used any weapons, or harmed anyone physically." Counsel represented that K.G. had "been responding to his supervision" in the adult case and had been attending school, and argued that if the trial court were concerned about K.G., "[s]helter [h]ouse placement would be the least restrictive alternative appropriate" under the circumstances.

         The trial court granted the OAG's detention request. As the basis for its decision, the court relied on D.C. Code § 16-2310 (a)(1) (authorizing detention "prior to a factfinding hearing or a dispositional hearing" if it is "required to protect the person or property of others from significant harm") and determined that K.G. was "a significant danger to others." The court's reasoning for this determination was twofold.

         The court first focused on the nature of K.G.'s new adult charges, specifically the fact that "there's been probable cause to believe that [K.G. is] selling cocaine, which is . . . dangerous." The court noted that "the City Council believes [distribution of cocaine is] a dangerous crime; and so, I do think it's . . . significant risk of harm to others - I mean, cocaine is dangerous and . . . that's what the statute[6] says." The court further observed that "to me selling drugs is . . . dangerous .... [I]t does have the risk of substantial harm."

         The court also focused on K.G.'s recidivism and general noncompliance with supervision. The court expressed concern that "people can't supervis[e] [K.G.], " as evidenced by his new arrest for charges similar to those that had initiated his juvenile case. The court also noted K.G.'s noncompliance with his curfew, his failure to enroll in drug treatment, and his failure to complete computer training.[7] The court agreed that, by themselves, K.G.'s technical violations did not warrant detention (although, the court noted, they would justify K.G.'s placement in a shelter house). But the court stated, "when you look at the whole combination, " along with his prior history on release and his new adult charges, "I do believe he's a danger to the community."

         To memorialize its decision, the court issued a standardized form "Order for Detention Pending Further Division Action." The court checked two boxes on the form indicating that it had determined that detention was required "to protect the person of others . . . based on . . . the nature and circumstances of the pending charge" and "to protect the respondent's own person."[8] After the issuance of the court's order, counsel filed both a notice of appeal pursuant to D.C. Code § 16-2328 (a), which requires a juvenile to note an appeal from a detention order within two days, and a motion for reconsideration.[9] The trial court denied the motion for reconsideration after the parties filed pleadings with this court but before this court heard oral argument.[10]

         II. The Detention Decision

         A. The Evolution of the Juvenile Detention Statute

         By creating a juvenile justice system distinct from the adult criminal justice system, Congress communicated its objective to treat children who are alleged to have committed crimes differently from their adult counterparts. With the passage of D.C. Code § 16-2301.02, the Council of the District of Columbia subsequently memorialized its "purpose ... to create a juvenile justice system . . . that will treat children as children in all phases of their involvement, while protecting the needs of communities and victims alike." (emphasis added). This "purpose" provision sets forth a number of "goals ... for delinquency cases, " which, in addition to reaffirming a commitment to due process protections, [11] convey a desire to support children in the community, to support their families, and to pursue rehabilitation, not punishment, "with the goal of creating productive citizens."[12] Section 16-2301.02 also establishes goals of holding "child[ren] found to be delinquent accountable for [their] actions, taking into consideration the child[ren]'s age, education, mental and physical condition, background, and all other relevant factors"[13] and "provid[ing] for the safety of the public."[14] Lastly, the statute seeks to "achieve the foregoing goals in the least restrictive settings necessary, with a preference at all times for the preservation of the family and the integration of parental, guardian, or custodial accountability and participation in treatment and counseling programs."[15]

         Because the goals of § 16-2301.02 apply to "all phases" of a juvenile delinquency case, other statutory provisions addressing juvenile detention before a factfinding hearing or a dispositional hearing-D.C. Code § 16-2310 (setting forth the criteria for detaining children alleged to be delinquent) and D.C. Code § 16-2312 (setting forth the procedures for detaining children alleged to be delinquent)-must be read and applied with the purpose and goals of § 16-2301.02 in mind.

         Section 16-2310 recognizes a default rule that children alleged to be delinquent should not be detained before final disposition of their juvenile case. It provides that "[a] child [alleged to be delinquent] shall not be placed in detention prior to a factfinding hearing[16] or a dispositional hearing[17] . . . unless it appears from available information that detention is required" either "(1) to protect the person or property of others from significant harm, or (2) to secure the child's presence at the next court hearing." D.C. Code § 16-2310 (a). The default against placing a child alleged to be delinquent in detention prior to a dispositional hearing is subject to a limited exception under § 16-2310 (a-l)(1) which creates "a rebuttable presumption that detention is required to protect the person or property of others if the judicial officer finds by a substantial probability that the child" either "(A) Committed a dangerous crime or a crime of violence while armed with or having readily available a pistol, firearm, or imitation firearm" or "(B) Committed CPWL, carrying a pistol without a license." Notably, § 16-2310 (a-1) employs the definitions of "dangerous crime" and "crime of violence" in the adult detention statute[18] but carves out a number of offenses, including "[a]ny felony offense under Chapter 9 of Title 48 (Controlled Substances)." D.C. Code § 16-2310(a-l)(2)(B).

         Current restrictions on the placement of juveniles in detention prior to a delinquency disposition are the product of successive amendments to § 16-2310 that promote keeping children in the community and out of a jail-like setting.[19]With the passage of the Comprehensive Youth Justice Amendment Act of 2016 (CYJAA), [20] language in § 16-2310 (a)(1) that had permitted detention of a child alleged to be delinquent "to protect the person or property ... of the child" was deleted, in recognition that placing a child in a jail-like setting for his own protection was inappropriate and potentially dangerous.[21] Additionally, the provision in § 16-2310 (a)(1) that had permitted detention of a child alleged to be delinquent if "required to protect the person or property of others" was further constricted to compel a showing that detention was required to protect the person or property of others from significant harm.'''' (emphasis added).[22]

         Similarly, the 2007 amendment of the detention statute that created the presumption in favor of detention if there is a substantial probability that a child committed an offense involving a firearm, see D.C. Code § 16-2310 (a-1), [23] also signaled a desire to minimize juvenile detention pre-disposition. The Council could have replicated the analogous provision for adult detention decisions, which creates a rebuttable presumption authorizing detention in a broader array of circumstances, including when an adult has committed a felony drug crime while on release in another case. Compare D.C. Code § 16-2310 (a-1) with D.C. Code § 23-1322 (c) (2017 Supp.). And indeed the Council did just that in emergency legislation that was in effect for three months in 2006.[24] But the Council ultimately did not make the provisions of the emergency legislation permanent. Instead, the Council opted for the much more restrictive presumption limited to crimes involving firearms, and in all other cases it continued to require a showing that the criteria for detention under § 16-2310 (a) were satisfied.[25] See supra note 23.

         These revisions to the juvenile detention statute are in keeping with and were in part inspired by "[r]ecent research ... on the development of the brain during adolescence, " which indicates that detaining children for poor decisionmaking to punish or educate them is simply ineffective and may be counterproductive. Council Comm. on the Judiciary, Report on Bill ...

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