Dissent - In re Tyriq. T. ( 2014 )

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IN RE TYRIQ T.—DISSENT
EVELEIGH, J., with whom ROBINSON, J., joins, dis-
senting. I respectfully dissent. Until today, this court
has never held that an interlocutory order that requires
a determination of the best interests of the child was
not immediately appealable. In fact, ‘‘[t]his court has a
long history of concluding that, within the context of
family matters, orders that would otherwise be consid-
ered interlocutory constitute appealable final judg-
ments.’’ Khan v. Hillyer, 306 Conn. 205, 213, 49 A.3d
996 (2012). The statute governing the discretionary
transfer of cases from the juvenile matters docket to the
regular criminal docket of the Superior Court, General
Statutes (Supp. 2014) § 46b-127 (b) (1) (C),1 requires
the judge to consider, inter alia, whether ‘‘the best inter-
ests of the child and the public will not be served by
maintaining the case in the superior court for juvenile
matters.’’ I see no reason to abandon our long-standing
precedent of holding that an otherwise interlocutory
order that involves a determination of the ‘‘best inter-
ests of the child’’ is immediately appealable where there
is no clear legislative mandate to the contrary. There-
fore, I respectfully dissent.
The majority holds that, in light of the genealogy of
§ 46b-127, coupled with the relevant legislative history,
it is clear that the legislature did not intend for the
discretionary transfer of a juvenile from juvenile court
to adult court based upon a C, D, E or unclassified
felony to be a final judgment. I disagree. The majority
concludes that ‘‘the clear intent of the legislature is to
prohibit interlocutory appeals from discretionary trans-
fer orders.’’ The majority continues: ‘‘We agree with the
state that the legislature expressed a clear intent to
prohibit the immediate appeal of discretionary transfer
orders. As we explain herein, although the current statu-
tory text of § 46b-127 does not resolve the question of
whether a discretionary transfer order constitutes a
final judgment for purposes of appeal, we conclude, on
the basis of the genealogy of the transfer provisions,
read together with this court’s interpretation of the
legislative intent evident from the prior amendments
to those provisions, that under the current statutory
language a discretionary transfer order cannot be imme-
diately appealed. This interpretation of the discretion-
ary transfer provision results in a harmonious and
consistent body of law with respect to all of the transfer
provisions currently contained in § 46b-127.’’ I respect-
fully disagree.
Furthermore, I disagree with the majority’s failure to
analyze the question of whether an order under § 46b-
127 (b) (1) is immediately appealable under State v.
Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Despite
acknowledging that the statute is silent as to whether
the transfer order is immediately appealable, and
acknowledging that it is necessary to resort to legisla-
tive history to interpret the statute, the majority fails
to engage in the analysis required by Curcio.
In my view, statutory language currently set forth in
§ 46b-127 is completely different from previous ver-
sions, the legislative history is silent on the issue of
the finality of the judgment, our philosophy toward
juveniles has changed in recent years, and United States
Supreme Court case law has changed. Furthermore, this
court has routinely held that, where the best interests of
the child are a consideration, an otherwise interlocutory
ruling must be considered a final judgment. I disagree
with the majority that reading § 46b-127 (b) (1) in con-
nection with other transfer statutes mandates a conclu-
sion that the legislature clearly intended that a transfer
order under § 46b-127 (b) (1) is not immediately appeal-
able. Rather, I would read § 46b-127 (b) (1) in a manner
consistent with other statutes under which this court
has considered the best interests of the child and uni-
formly held that otherwise interlocutory orders were
immediately appealable under the second prong of Cur-
cio. Therefore, I would conclude that since § 46b-127
(b) (1) is silent as to whether a transfer is immediately
appealable, and that, under the second prong of Curcio,
the discretionary transfer of a juvenile from the Supe-
rior Court for juvenile matters to adult court is immedi-
ately appealable because such a transfer so concludes
the rights of the juveniles such that further proceedings
cannot affect them. Accordingly, I would conclude that
a juvenile may immediately appeal from an order under
§ 46b-127 (b) (1) and that the juvenile is entitled to a
stay of that order pending appeal.
I agree with the factual and procedural history set
forth by the majority in its opinion. I agree with the
majority that, in the first instance, ‘‘[w]hether the legis-
lature intended discretionary transfer orders issued pur-
suant to § 46b-127 (b) (1) to be final judgments for
purposes of appeal presents a question of statutory
interpretation over which we exercise plenary review.
See Ugrin v. Cheshire, 307 Conn. 364, 379, 54 A.3d 532
(2012). When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . . Kas-
ica v. Columbia, 309 Conn. 85, 93, 70 A.3d 1 (2013).’’
(Internal quotation marks omitted.)
I would add, however, the following regarding final
judgments: ‘‘The jurisdiction of the appellate courts is
restricted to appeals from judgments that are final. Gen-
eral Statutes §§ 51-197a and 52-263; Practice Book § [61-
1] . . . . The policy concerns underlying the final judg-
ment rule are to discourage piecemeal appeals and to
facilitate the speedy and orderly disposition of cases
at the trial court level. . . . The appellate courts have
a duty to dismiss, even on [their] own initiative, any
appeal that [they lack] jurisdiction to hear. . . . In
some instances, however, it is unclear whether an order
is an appealable final judgment. In the gray area
between judgments which are undoubtedly final and
others that are clearly interlocutory . . . this court has
adopted the following test, applicable to both criminal
and civil proceedings: An otherwise interlocutory order
is appealable in two circumstances: (1) where the order
or action terminates a separate and distinct proceeding,
or (2) where the order or action so concludes the rights
of the parties that further proceedings cannot affect
them. State v. Curcio, [supra, 191 Conn. 31]. . . . Solo-
mon v. Keiser, 212 Conn. 741, 745–46, 562 A.2d 524
(1989).’’ (Internal quotation marks omitted.) Canty v.
Otto, 304 Conn. 546, 554–55, 41 A.3d 280 (2012).
With these principles in mind, and in accordance
with § 1-2z, I begin with the text of the statute. General
Statutes (Supp. 2014) § 46b-127 (b) (1) provides as fol-
lows: ‘‘Upon motion of a prosecutorial official, the supe-
rior court for juvenile matters shall conduct a hearing
to determine whether the case of any child charged
with the commission of a class C, D or E felony or an
unclassified felony shall be transferred from the docket
for juvenile matters to the regular criminal docket of
the Superior Court. The court shall not order that the
case be transferred under this subdivision unless the
court finds that (A) such offense was committed after
such child attained the age of fourteen years, (B) there
is probable cause to believe the child has committed
the act for which the child is charged, and (C) the best
interests of the child and the public will not be served
by maintaining the case in the superior court for juvenile
matters. In making such findings, the court shall con-
sider (i) any prior criminal or juvenile offenses commit-
ted by the child, (ii) the seriousness of such offenses,
(iii) any evidence that the child has intellectual disabil-
ity or mental illness, and (iv) the availability of services
in the docket for juvenile matters that can serve the
child’s needs. Any motion under this subdivision shall
be made, and any hearing under this subdivision shall
be held, not later than thirty days after the child is
arraigned in the superior court for juvenile matters.’’
The statute itself then is silent as to whether it is a final
judgment for purposes of appeal.
Nevertheless, when considering § 46b-127 (b) (1) in
relation to the rest of that statute, I note that in General
Statutes (Supp. 2014) § 46b-127 (f) the legislature did
explicitly provide that ‘‘[t]he decision of the court con-
cerning the transfer of a youth’s case from the youthful
offender docket, regular criminal docket of the Superior
Court or any docket for the presentment of defendants
in motor vehicle matters shall not be a final judgment
for purposes of appeal.’’ I would conclude that the legis-
lature’s decision to include language in § 46b-127 (f)
explicitly providing that a transfer under that subsec-
tion is not a final judgment for purposes of appeal
indicates that the legislature knows how to include such
language if it chooses to do so, and the fact that it did
not do so in § 46b-127 (b) (1) suggests that the legisla-
ture may have intended for the other transfers to be
final judgments for purposes of an appeal. As we have
frequently stated, ‘‘it is a well settled principle of statu-
tory construction that the legislature knows how to
convey its intent expressly; e.g., Dept. of Public Safety
v. Freedom of Information Commission, 298 Conn.
703, 729, 6 A.3d 763 (2010); or to use broader or limiting
terms when it chooses to do so. See, e.g., Stitzer v.
Rinaldi’s Restaurant, 211 Conn. 116, 119, 557 A.2d 1256
(1989).’’ Scholastic Book Clubs, Inc. v. Commissioner
of Revenue Services, 304 Conn. 204, 219, 38 A.3d 1183,
cert. denied, U.S. , 133 S. Ct. 425, 184 L. Ed. 2d
255 (2012).
The state asserts, however, that the absence of any
language indicating that a transfer pursuant to § 46b-
127 (b) (1) is a final judgment for purposes of appeal
indicates that the legislature intended that it not be a
final judgment for purposes of appeal. The state asserts
that an interlocutory order is only appealable if the
legislature chooses to make it so in the statutory lan-
guage and we cannot read such language into a statute.
Because I find that § 46b-127 (b) (1) is subject to two
reasonable interpretations regarding whether a transfer
pursuant to that section constitutes a final judgment
for purposes of appeal, I would conclude that § 46b-127
(b) (1) is ambiguous, and, therefore, resort to legislative
history and extratextual sources.
I begin with the history of § 46b-127 (b) (1). In In re
Juvenile Appeal (85–AB), 195 Conn. 303, 306, 488 A.2d
778 (1985), this court first considered whether an order
transferring a case from the juvenile docket to the regu-
lar criminal docket was a final judgment for the pur-
poses of appeal. In that case, this court held that such
an order does not: (1) constitute a final judgment for
the purpose of appellate review; or (2) fall within the
exceptions to the final judgment rule outlined in Curcio.
Id., 306–307. At that time, the statute governing the
discretionary transfer of juvenile cases to the regular
criminal docket, General Statutes (Rev. to 1981) § 46b-
126,2 required a judge to determine that the juvenile
had attained the age of fourteen, find probable cause,
and determine that the nature of the charge qualified
for transfer. I note that the respondent in In re Juvenile
Appeal (85–AB) did not argue that the transfer order
was a final judgment, only that one of the Curcio excep-
tions applied. In re Juvenile Appeal (85–AB), supra,
307. It cannot be disputed that, since the date of that
decision, American jurisprudence regarding juveniles
has undergone tremendous change motivated by the
prevailing scientific understanding of adolescents’ cog-
nitive development. As a result of this new understand-
ing, Connecticut has now classified both sixteen year
olds and seventeen year olds as juveniles. See Public
Acts, Spec. Sess., June, 2007, No. 07-4, § 73.
The statute considered in In re Juvenile Appeal (85–
AB), General Statutes (Rev. to 1981) § 46b-126, like
the current version of § 46b-127 (b) (1), contained no
language indicating the legislature’s intent to either per-
mit or forbid interlocutory appeals of transfers. Accord-
ingly, this court did not engage in any analysis of
whether the legislature intended to allow interlocutory
appeals, instead concluding that the transfer was not
a final judgment and, therefore, should be analyzed
under the exceptions to the final judgment rule set forth
in Curcio.
Since our decision in the case of In re Juvenile Appeal
(85–AB), the legislature has made various changes to
the statutory language governing the discretionary
transfer of juvenile cases to the regular criminal docket.
Initially, the legislature responded to this court’s deci-
sion in In re Juvenile Appeal (85–AB) by adding explicit
statutory language making such transfers immediately
appealable. See Public Acts 1986, No. 86-185, § 1; see
also In re Michael S., 258 Conn. 621, 624 n.3, 784 A.2d
317 (2001). Specifically, the amendment added language
providing that ‘‘[a]n order by the court under this sec-
tion transferring a child from the docket for juvenile
matters to the regular criminal docket of the superior
court shall be a final judgment for purposes of appeal.’’
Public Act 86-185, § 1.
In 1994, the legislature convened a special session to
address gun violence and, therein, undertook a revision
of the statute governing mandatory transfers in relation
to certain gun related offenses. See Public Acts, Spec.
Sess., July, 1994, No. 94-2, § 6. The revised statute did
not explicitly bar interlocutory appeals, but omitted the
final judgment language that the legislature had added
in 1986. Spec. Sess. P.A. 94-2, § 6. In 1995, the legislature
moved the statutory language governing discretionary
transfers from § 46b-126 (a) to § 46b-127 (b). See foot-
note 2 of this opinion. In the course of making this
amendment, the legislature again chose to omit the final
judgment language that was added in 1986. Public Acts
1995, No. 95-225, §§ 13 and 39. The majority suggests
that the removal of the final judgment language from
§ 46b-127 indicates an intention by the legislature to
abandon the final judgment rule it put into place in
1986. In many instances, I would find this argument
persuasive. See State v. Johnson, 227 Conn. 534, 543,
630 A.2d 1059 (1993) (‘‘[w]hen the legislature amends
the language of a statute, it is presumed that it intended
to change the meaning of the statute and to accomplish
some purpose’’). This court has recognized many times,
however, that some statutory amendments may be
structural or linguistic and not substantive. See Gon-
salves v. West Haven, 232 Conn. 17, 24, 653 A.2d 156
(1995) (listing cases in which general rule presuming
that legislature intended to change meaning of statute
was not applied).
The 1986 amendment that made transfers subject to
an interlocutory appeal evinced the intention of the
legislature unequivocally; it added specific language to
the more general statute that this court interpreted in
In re Juvenile Appeal (85–AB) and, in so doing,
reversed the effect of this court’s decision. See In re
Michael S., supra, 258 Conn. 624 n.3. Had the legislature
intended to reverse that clear policy, it could have
replaced the final judgment language with phrasing indi-
cating that juvenile transfers are not final judgments
for purposes of appeal. See, e.g., General Statutes
(Supp. 2014) § 46b-127 (f). As we have frequently stated,
‘‘it is a well settled principle of statutory construction
that the legislature knows how to convey its intent
expressly . . . or to use broader or limiting terms
when it chooses to do so.’’ (Citation omitted.) Scholastic
Book Clubs, Inc. v. Commissioner of Revenue Services,
supra, 304 Conn. 219. Instead, the legislature simply
returned to the nonspecific language that gave rise to
In re Juvenile Appeal (85–AB). This omission does
little to suggest a clear legislative intention to abandon
the prior rule. ‘‘In the interpretation of a statute, a radi-
cal departure from an established policy cannot be
implied. It must be expressed in unequivocal language.’’
Jennings v. Connecticut Light & Power Co., 140 Conn.
650, 667, 103 A.2d 535 (1954).
I recognize, however, that the legislative history of
the statutory language governing transfers may best
be described as equivocal, with supportive arguments
being offered on both sides of the issue depending upon
the legislator whom one chooses as authority. For
instance, we stated in In re Michael S, supra, 258 Conn.
630–31 n.11 as follows: ‘‘We note that the problem pre-
sented by aging juveniles was recognized by the legisla-
ture when it enacted Spec. Sess. P.A. 94-2, § 6, deleting
the final judgment language from [the statute governing
mandatory transfers]. During debate on the proposed
legislation, Senator George Jepsen stated that the ability
to appeal from a transfer order ‘has been the focus of
much of the problems associated with Juvenile Court
actions because by the time an appeal is taken, the
juvenile is no longer a juvenile.’ 37 S. Proc., Pt. 10, July
13, 1994, Spec. Sess., p. 3630. Representative Edward
C. Graziani stated that ‘when you take an appeal [from
a transfer order], you can extend the period of time
before a resolution is done. The child is typically over
[sixteen by the time the appeal is decided], so the whole
issue is moot. Therefore, the state’s advocates do not
proceed to try to even attempt under our existing law
to get a transfer because the law is really defective.
[Under this] new law . . . there is no appeal. You can-
not appeal, so you cannot stop the clock when the
system goes forward, so the child doesn’t become [six-
teen] before justice is followed through.’ 37 H.R. Proc.,
Pt. 27, July 13, 1994 Spec. Sess., p. 9955.’’ In contrast,
when Representative Michael Lawlor, the cochairman
of the Judiciary Committee, presented the bill to the
House of Representatives, he said: ‘‘This bill does not in
any significant way change the meaning of the juvenile
transfer language.’’ 37 H.R. Proc., supra, pp. 9786–87.
Further, when the legislature undertook a more com-
prehensive reform of the statutes governing the juvenile
justice system the following year, the removal of the
provision regarding interlocutory appeals from the stat-
ute governing discretionary transfers was never explic-
itly discussed. See 38 H.R. Proc., Pt. 8, 1995 Sess., pp.
2933–42, remarks of Representative Lawlor. In fact, dur-
ing legislative debate on the 1995 reforms, Representa-
tive Dale Radcliffe, a vocal opponent of the initial
version of the bill because it failed, in his view, to
transfer enough children to adult court, criticized the
amendment then under debate because the only thing
it did to speed transfers was eliminate probable cause
and competency hearings in juvenile court. Id., pp.
2956–57. It is certainly arguable that the implication of
Representative Radcliffe’s remarks was that he under-
stood that the revisions being considered continued to
allow interlocutory appeals. The fact that this under-
standing was shared by many of the other legislators
is underscored by Representative Lawlor’s failure to
mention the fact that the elimination of the final appeal
language from the provisions governing discretionary
transfers would change a substantive part of the law,
despite presenting the bill to the chamber and summa-
rizing the provisions. Id., pp. 2933–42. Legislative debate
surrounding subsequent revisions of and amendments
to the juvenile transfer statute, including adoption of
the iteration of the statute at issue in the present case,
has not touched upon the question of interlocutory
appeals.
On the basis of this legislative history, I would con-
clude that the intent of the legislature in removing the
statutory language indicating that a transfer repre-
sented a final judgment for the purpose of an interlocu-
tory appeal is far from definitive. In my view, it is so
unclear that we must resort to a Curcio analysis in
order to determine if an appeal should be allowed. As
I stated previously in this opinion, ‘‘[i]n some instances,
however, it is unclear whether an order is an appealable
final judgment. In the gray area between judgments
which are undoubtedly final and others that are clearly
interlocutory . . . this court has adopted the following
test, applicable to both criminal and civil proceedings:
An otherwise interlocutory order is appealable in two
circumstances: (1) where the order or action terminates
a separate and distinct proceeding, or (2) where the
order or action so concludes the rights of the parties
that further proceedings cannot affect them. State v.
Curcio, [supra, 191 Conn. 31].’’ (Citation omitted; inter-
nal quotation marks omitted.) Solomon v. Keiser, supra,
212 Conn. 746.
I also would conclude that, in view of the many judi-
cial opinions and scientific studies which have changed
the entire landscape of juvenile law, it is necessary to
reevaluate our conclusions in In re Juvenile Appeal
(85–AB), which concluded that discretionary transfers
pursuant to General Statutes (Rev. to 1981) § 46b-126
did not satisfy the second prong of Curcio, and In re
Daniel H., 237 Conn. 364, 367, 678 A.2d 462 (1996),
which concluded that the legislature’s decision to
remove the final judgment language from the mandatory
transfer provision ‘‘eliminated the right to an immediate
appeal from a court order transferring a juvenile matter
to the regular criminal docket . . . .’’ I disagree with
the majority’s reliance on In re Daniel H., because that
case addressed the statute for the mandatory transfer
of juveniles and not the discretionary transfer statute
involved in this case. The mandatory transfer provision,
it must be stated, contains no language regarding the
best interests of the child. My principal issue with the
majority is that, in my view, this is an entirely new
statute, with new findings to be made by the trial judge,
which is different from statutes that this court has pre-
viously considered. It is important, in my opinion, that
we examine this new statute through the current lens
of evolving juvenile justice principles.
I would conclude that we must reexamine this court’s
Curcio analysis in In re Juvenile Appeal (85–AB)
because, in the years since that opinion was issued,
there have been numerous substantial changes to our
understanding of juvenile justice principles. For
instance, since that time, our nation has stopped execut-
ing people who were children when they committed
their crimes. Roper v. Simmons, 543 U.S. 551, 568–69,
125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). We have stopped
imposing sentences of life in prison without the possibil-
ity of parole upon people who were children when they
committed their crimes. Graham v. Florida, 560 U.S.
48, 74, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). We
have changed our state laws to recognize that sixteen
and seventeen year olds are still children, and should
remain, whenever possible, within the jurisdiction of
the juvenile court. See Spec. Sess. P.A. 07-4, § 73. All
of these developments were erected on the foundation
of a body of scientific knowledge not available to this
court in 1985.
An examination of these seminal United States
Supreme Court cases involving juvenile justice is
instructive to our understanding of the changing views
of juvenile justice. In Roper v. Simmons, supra, 543
U.S. 555–56, the United States Supreme Court reversed
itself on a question, presented just sixteen years earlier
in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969,
106 L. Ed. 2d 306 (1989), of whether the eighth amend-
ment to the United States constitution permits imposing
the death penalty on a person convicted of a crime
committed as a minor. In holding that the execution of
such offenders was unconstitutional, the United States
Supreme Court relied heavily on the large number of
states that had abolished the execution of juvenile
offenders since the Stanford ruling. Roper v. Simmons,
supra, 568. In explaining this trend, the court cited three
reasons: (1) ‘‘[A]s any parent knows and as the scientific
and sociological studies . . . tend to confirm, [a] lack
of maturity and an underdeveloped sense of responsibil-
ity are found in youth more often than in adults and
are more understandable among the young’’; (2) ‘‘juve-
niles are more vulnerable or susceptible to negative
influences and outside pressures, including peer pres-
sure’’; and (3) ‘‘the character of a juvenile is not as well
formed as that of an adult. The personality traits of
juveniles are more transitory, less fixed.’’ (Internal quo-
tation marks omitted.) Id., 569–70.
Two years after Roper was decided, Connecticut
joined the vast majority of sister states in extending
juvenile court jurisdiction to sixteen and seventeen year
olds. See Spec. Sess. P.A. 07-4, § 73. An examination of
the testimony considered by the legislature prior to
enacting this change indicates that the legislature was
attuned to the changing understanding of adolescence
reflected in Roper and the nationwide trends noted
therein. It also shows how much of the current informa-
tion about adolescents was unavailable to this court
when it decided In re Juvenile Appeal (85–AB). In my
view, if this information were available to this court
when it decided that case in 1985, a different result
would have been reached.
In In re Juvenile Appeal (85–AB), supra, 195 Conn.
312–13, this court considered whether the exceptions
to the final judgment rule set forth in State v. Curcio,
supra, 191 Conn. 31–34, were applicable to juvenile
transfer orders. As I explained previously in this opin-
ion, Curcio establishes that ‘‘[a]n otherwise interlocu-
tory order is appealable in two circumstances: (1)
where the order or action terminates a separate and
distinct proceeding, or (2) where the order or action
so concludes the rights of the parties that further pro-
ceedings cannot affect them.’’ Id., 31.
Tyriq T., the respondent in this case, does not claim
that the first Curcio exception applies. The Court in In
re Juvenile Appeal (85–AB) considered two arguments
regarding the second prong of Curcio. First, it consid-
ered the loss of privacy because matters are held in
public in the adult court as opposed to the privacy of
the juvenile court. In re Juvenile Appeal (85–AB),
supra, 195 Conn. 307–308. Second, there was concern
about the juveniles having direct contact with the adult
prison population. Id., 310. The court held that the first
ground did not satisfy the second prong of Curcio and
assumed that the Department of Correction would pro-
vide children in its custody with age appropriate ser-
vices or transfer them to any other appropriate state
institution as their needs required. Id., 308 and 310 n.5.
In 2007, the legislature heard testimony from then
Commissioner of Correction, Theresa Lantz, indicating
that sixteen and seventeen year old children in the
custody of the Department of Correction were not
receiving developmentally appropriate services in the
way they would if they were in the juvenile system,
notwithstanding the creation of a special facility for
them. Commissioner Lantz testified as follows: ‘‘I took
all the [sixteen] and [seventeen] year olds out of the
jails. . . . And we’ve tailored programs for that particu-
lar population. . . . And so one of the things that we’ve
really tried to concentrate [on] is giving them specific
programs, but we don’t provide the same level of ser-
vices that the juveniles get in the juvenile court system.’’
Conn. Joint Standing Committee Hearings, Executive
and Legislative Nominations, Pt. 1, 2007 Sess., pp.
229–30.
The admitted inadequacy of services provided to chil-
dren held in the custody of the Department of Correc-
tion—even when they are segregated from adult
prisoners—presents a very real risk of irreparable harm
when considered in the context of the current under-
standing of the importance of the adolescent years to
human cognitive and emotional development. ‘‘Adoles-
cence is a crucial and necessary period of plasticity
when brain circuitry and behavior are beginning to be
established. These changes in brain circuitry and func-
tioning that occur during adolescence most significantly
impact brain regions associated with response inhibi-
tion, planning, the calibration of risk and reward, and
emotion regulation. Moreover, the opportunities and
constraints created by a child’s environment play an
important role in this period of development.’’ (Foot-
notes omitted.) A. Giannetti, ‘‘The Solitary Confinement
of Juveniles in Adult Jails and Prisons: A Cruel and
Unusual Punishment,’’ 30 Buff. Pub. Int. L.J. 31, 45–46
(2011–2012). ‘‘Once the developmental window passes
for a juvenile, the brain cannot go back and redevelop
at some point in the future; the developmental effects
are likely permanent.’’ Id., 46–47.
It is important to note the long-term effects of the
inadequate provision of services to the children when
they are in adult detention. As Attorney Christina Ghio
noted when she testified in 2007 on behalf of the Office
of the Child Advocate in favor of legislation to raise
the juvenile jurisdiction age: ‘‘The inadequacy of the
adult criminal system to address the emotional and
developmental needs of teenagers is substantiated
through research demonstrating that youth incarcer-
ated in adult facilities are more likely to reoffend and
commit more serious crimes than youth who are tried
and treated in the juvenile system for the same crimes.’’
Conn. Joint Standing Committee Hearings, Judiciary,
Pt. 19, 2007 Sess., p. 6096. Research has shown that
even facilities specifically designed for children tend to
have suboptimal educational outcomes, and to provide
inadequate ancillary services such as special education,
social work, and psychology. See K. Burdick et al., ‘‘Cre-
ating Positive Consequences: Improving Education Out-
comes for Youth Adjudicated Delinquent,’’ 3 Duke F.
for L. & Soc. Change 5, 10–12 (2011). The shortcomings
of these resources often lead to greater high school
dropout rates and greater subsequent involvement with
the adult criminal justice system. Id., 13 n.50.
Legal developments subsequent to the change in the
age of juvenile jurisdiction in Connecticut indicate that
the evolution in legal understanding of the needs of
adolescents has continued. First, in 2010, the United
States Supreme Court ruled that life imprisonment with-
out parole for crimes committed by juveniles was also
unconstitutional. See Graham v. Florida, supra, 560
U.S. 74. In Graham, the United States Supreme Court
relied in a large part on the reasoning of Roper, conclud-
ing that ‘‘[n]o recent data provide reason to reconsider
the [c]ourt’s observations in Roper about the nature of
juveniles. As the petitioner’s amici point out, develop-
ments in psychology and brain science continue to show
fundamental differences between juvenile and adult
minds.’’ Id., 68.
Then, in 2012, the Connecticut legislature provided
the detailed procedure, at issue in this case, for
determining which juvenile cases are transferred to the
adult criminal docket. See Public Acts, Spec. Sess., June
2012, No. 12-1, § 280. This enactment made clear that
hearings on discretionary transfers from juvenile court
to adult court should occur, for the first time, in the
juvenile court, rather than in the adult court as required
by State v. Fernandes, 300 Conn. 104, 106, 12 A.3d 925,
cert. denied, U.S. , 131 S. Ct. 2469, 179 L. Ed.
2d 1213 (2011). See id., 129–30 (Eveleigh, J., dissenting).
The reason for this change was reflected in the testi-
mony of Judge Christine Keller to the Judiciary Commit-
tee in support of the bill: ‘‘We felt that, number one,
that due process hearing should take place before they
get over to adult court. We know what services are
available in juvenile court. We know what we can apply
to that child from the juvenile court array of services
and diversions. We may know the child a lot better than
the adult court, because we may have had the child in
front of us previously. Probation, one of the differences
between an adult court and a juvenile court is in juvenile
court, a probation officer is assigned the minute the
child walks into the courthouse . . . we don’t wait
until . . . the case is disposed of to assign a probation
officer. So the juvenile judge would waive the totality
of circumstances, the seriousness of the offense, the
child’s history with the juvenile court, and what we
could do for the child in the juvenile court and then
determine whether, okay, there’s not much more we
can do for this child, off they go to adult court or say,
no, it’s going to stay here on the discretionary transfers,
not the most serious ones.’’ Conn. Joint Standing Com-
mittee Hearings, Judiciary, Pt. 13, 2012 Sess., pp.
4167–68.
As this testimony before the legislature demon-
strates, because of the unique nature of juvenile court
and the unique services provided there, a juvenile who
is transferred from juvenile court to adult court suffers
an irreparable harm. The harm suffered by a wrongly
transferred juvenile is truly irreparable, for when ‘‘the
developmental window passes for a juvenile, the brain
cannot go back and redevelop at some point in the
future.’’ A. Giannetti, supra, 30 Buff. Pub. Int. L.J. 46–47.
I would add that, in my view, the lack of privacy is
irreparable. Once the juvenile has a public hearing he
cannot go to a judge to retrieve his privacy. Further,
we should not, in my view, ignore the fact that once
the juvenile goes to adult court his conviction could
result in a criminal record, unless he is granted youthful
offender status. Certainly, the imposition of a criminal
record on an individual is irreparable and is something
for which the juvenile may suffer repercussions the rest
of his life. A juvenile does not incur a criminal record
in juvenile court. Once the transfer occurs the possibil-
ity of a criminal record exists. Further, the juvenile that
is transferred to adult court may face the decision of
having to post bond through a bail bondsman, which
would result in an irreparable loss of money that would
not be incurred in juvenile court. We have previously
held an immediate appeal was appropriate because the
order required the aggrieved party to engage in some
coercive action, such as paying money that could not
be recovered on a subsequent appeal. Litvaitis v. Lit-
vaitis, 162 Conn. 540, 548–49, 295 A.2d 519 (1972) (con-
cluding pendente lite order for payment of support was
final judgment); Hiss v. Hiss, 135 Conn. 333, 336–38,
64 A.2d 173 (1949) (concluding pendente lite order for
temporary support was final judgment). Certainly, the
juvenile would never have the opportunity to recover
the funds needed to post bond. Further, if a juvenile
in adult court cannot make bond, he will receive less
frequent reviews of his detention. See Practice Book
§ 30-10 (requiring that juveniles receive detention
review hearing every fifteen days). Hearings in the juve-
nile court also ensure that, to the court’s satisfaction,
the juvenile is receiving the proper services. The juve-
nile loses the use of the juvenile probation officer if a
transfer is ordered.
As I explained previously in this opinion, General
Statutes (Supp. 2014) § 46b-127 (b) (1) (C) requires that
the court find, inter alia, that ‘‘the best interests of the
child and the public will not be served by maintaining
the case in the superior court for juvenile matters.’’ It
is this ‘‘best interests’’ finding that separates this statute
from the youthful offender statute and makes any com-
parison to other transfer statutes inapposite. The youth-
ful offender statute does not carry any ‘‘best interests
of the child’’ language. In fact, it is difficult to conjure
up a scenario when the best interests of the child would
ever be served by a transfer to adult court given the
absence of privacy, inadequate services and the possi-
bility of a public record.
Further, the very presence of the best interests test
is an important new element in any consideration under
the second prong of Curcio. It is my position that this
statute has changed so substantively that any resort to
an analysis based upon its genealogy is misplaced. A
hearing regarding the best interests of the child was
simply not required in prior revisions of the statute.
The adequacy of that hearing and the court’s findings
must be subject to appellate review before the transfer
is completed. If there is no review at that time, in my
view, the purpose and meaning of Curcio has become
meaningless. In State v. Fernandes, supra, 300 Conn.
127, this court held that ‘‘[t]herefore, when, as here,
treatment as a juvenile is the presumptive norm, and
treatment as an adult is the exception, the right to
juvenile status vests in the juvenile, and the discretion-
ary transfer to criminal court, which is a revocation of
juvenile status, constitutes a deprivation of a liberty
interest cognizable under the due process clause.’’ In
order to protect these due process rights the legislature
now requires that the court consider, as one of the
requirements of transfer, that the best interests of the
child will not be served by maintaining him in the juve-
nile system. This required finding represents a sea
change in the statute that did not exist when: (1) we
decided In re Juvenile Appeal (85–AB); (2) the 1994
or 1995 amendments were passed; or (3) we decided
In re Daniel H. Therefore, any reliance on those cases,
or on the genealogy of § 46b-127 (b) (1), is misplaced
and it is more appropriate to engage in an analysis
under Curcio.
We have previously determined that orders of tempo-
rary custody under General Statutes § 46b-56, which
require a finding on the best interests of the child, are
immediately appealable. Madigan v. Madigan, 224
Conn. 749, 750–51, 620 A.2d 1276 (1993). In considering
orders for temporary custody under § 46b-56, this court
has stated that ‘‘we consider orders of temporary cus-
tody in light of these constitutional considerations and
reaffirm our conclusion that an immediate appeal of [a
court order of temporary custody] is the only reason-
able method of ensuring that the important rights sur-
rounding the parent-child relationship are adequately
protected.’’ (Internal quotation marks omitted.) In re
Shamika F., 256 Conn. 383, 404, 773 A.2d 347 (2001).
This court continued: ‘‘[T]he best interest of the chil-
dren, especially their interest in family stability, sup-
ports our analysis. . . . Therefore, we conclude that
temporary custody orders are immediately appealable
not only to protect a parent’s interests in their children,
but also to protect the individual interests of the chil-
dren.’’ Id., 405–406. Likewise, in In re Jeisean M., 270
Conn. 382, 404–405, 852 A.2d 643 (2004), this court held
that an extension of commitment, which also requires
a factual finding regarding the child’s best interests, is
an immediately appealable final judgment.
As the foregoing demonstrates, this court has rou-
tinely determined that, where the individual best inter-
ests of a child are concerned, orders affecting those
interests are appealable final judgments. This is the
harmonious body of law which, in my view, we should
maintain. In fact, my research has not revealed a case
involving a statute that contained language regarding
the ‘‘best interests’’ of a child in which this court has
not allowed an immediate appeal from an interlocutory
order of any kind. Certainly, the revocation of juvenile
status, which we have held to be a liberty interest;
see State v. Fernandes, supra, 300 Conn. 111; must
constitute an appealable judgment under Curcio.
Indeed, once the juvenile is transferred he loses valu-
able services and his privacy. Further, he loses the right
to have his detention reviewed every fifteen days. He
may lose the right to be released to his parents or
guardian, or other suitable person or agency without
the possibility of having to incur the expense of posting
a bond, which may or may not become problematic. In
this case, the required finding regarding best interest
was recently added to the statute. When a court makes
a ruling that may affect those interests, it follows that
Curcio requires that ruling to constitute an appealable
final judgment.
The opinion of the majority, in my view, leads to the
absurd result that before a juvenile can challenge a
judge’s decision to transfer the juvenile to adult court,
the juvenile must give up his or her right to privacy,
be hindered by a public criminal record, and give up
valuable services that may aid his or her development
while an appeal is pending. The majority contends that
this result is mandated by the deletion of the final judg-
ment wording in the statute. As noted earlier, I respect-
fully disagree with this conclusion because the wording
of this statute is completely different from the earlier
versions, and both our case law and our acceptance of
scientific studies regarding juveniles mandate a differ-
ent result. There are specific findings which now must
be made by the trial court prior to ordering the transfer.
What if, for instance, the judge failed to make the best
interest finding, yet ordered the transfer to adult court?
Is the majority’s position such that a juvenile would
have to wait for a trial in adult court before the juvenile
could appeal the judge’s clear error committed in juve-
nile court? The consequences of such a result are much
too severe for the juvenile and, in my view, directly
contrary to the intent of Curcio.
During legislative debates in 1994, some of the legisla-
tors remarked that the final judgment clause should be
removed from the mandatory transfer provision
because the transfer appeals took too long. It is note-
worthy that the appellate system of the Judicial Branch
of this state has recognized this deficiency and insti-
tuted a system in which all juvenile appeals are expe-
dited and the number of extensions has been
significantly reduced. Presently, the average case takes
a total of approximately six months from the time the
appeal is filed until the appellate decision. In the Appel-
late Court the period is 185.94 days. In the Supreme
Court the period is 183.44 days. These statistics demon-
strate a vast improvement in the time period within
which an appeal involving juvenile matters is presently
heard.3 In the present case, the respondent was trans-
ferred to adult court on November 15, 2012. The order
was not stayed. At the time of oral argument on March
20, 2014, his case still had not been heard in adult court.
He has lost sixteen months of services he could have
had in juvenile court. He has also lost the benefit of
having sixteen months of supervision by a juvenile pro-
bation officer. His hearings have been open to the pub-
lic, and he now faces the possibility of having a criminal
record. How could this transfer have possibly been in
his best interests? If indeed, the 1994 act omitted the
provision providing for an immediate appeal from man-
datory transfers was because those appeals took too
long, the pendulum has swung 180 degrees; in the
absence of a speedy trial motion, it takes far longer to
try the juvenile in adult court, compared to the time in
which the juvenile could have an appeal heard in the
appellate system.
I would, therefore, conclude that the discretionary
transfer order of a juvenile from the Superior Court for
juvenile matters to the Superior Court for adult matters
meets the second prong of Curcio and, therefore, is an
appealable interlocutory order. In view of the potential
irreparable harm to the juvenile, I would conclude that
a stay should be in place while the appeal is pending,
and the juvenile should continue to receive juvenile
services during the course of the appeal. He should also
continue to be supervised by his juvenile probation
officer. The effect on both the juvenile and his or her
family is too devastating to allow a discretionary order
to languish while the juvenile endures a criminal trial
without the benefit of having the transfer order
reviewed by an appellate court.
I would conclude both that the order was an appeal-
able final judgment under Curcio and that the best
interests of the juvenile demanded that he stay within
the jurisdiction of the Superior Court for juvenile mat-
ters while the appeal was pending. Accordingly, I would
reverse the judgment of the Appellate Court. Therefore,
I respectfully dissent.
1
As the majority notes, § 46b-127 has recently been amended in a manner
not relevant to the present appeal. See footnote 1 of the majority opinion;
see also Public Acts 2013, No. 13-258, § 5. Hereinafter, unless otherwise
noted, all references to § 46b-127 are to the version appearing in the 2014
supplement to the General Statutes.
2
As noted by the majority, the legislature moved the statutory provision
governing discretionary transfers from § 46b-126 (a) to § 46b-127 (b) in 1995.
See Public Acts 1995, No. 95-225, §§ 13 and 39.
3
Obviously, in the vast minority of juvenile cases in which certification
is granted from the Appellate Court to the Supreme Court, which represents
a very small percentage of the overall statistics, the time period from filing
to decision is longer.