In re Angel R.

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IN RE ANGEL R.*
(AC 36692)
Lavine, Alvord and Bishop, Js.
Argued November 20, 2014—officially released June 16, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Juvenile Matters at Bridgeport, B. Kaplan, J.)
James Jude Connolly, director of juvenile post con-
viction, with whom were Lindsey Guerrero, assistant
public defender, and, on the brief, Joshua Michtom,
assistant public defender, and Aaron J. Romano, for
the appellant (respondent).
Michael Besso, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, Gregory T. D’Auria, solicitor general, and Benja-
min Zivyon, assistant attorney general, for the appellee
(petitioner Commissioner of Children and Families).
Sandra J. Staub and David McGuire filed a brief for
the American Civil Liberties Union of CT as amicus
curiae.
Opinion
BISHOP, J. The respondent, Angel R., appeals from
the judgment of the trial court granting the motion filed
by the petitioner, the commissioner of the Department
of Children and Families (DCF), to transfer her from
DCF’s custody to the custody of the Department of
Correction (DOC). On appeal, the respondent claims
that General Statutes § 17a-12 (a) violates the federal
and Connecticut constitutions on the ground that its
application to the respondent deprives her of due pro-
cess in the following ways: (1) the statute is impermissi-
bly vague; and (2) the statute permits the court to order
her transferred from the care of DCF to DOC without
affording to her the procedural rights to which she is
entitled, specifically, the right to a trial by jury, and
the obligation that DCF prove its allegations by proof
beyond a reasonable doubt. She claims, as well, that the
court incorrectly denied her motion to dismiss DCF’s
transfer petition because her guilty plea in a prior delin-
quency proceeding to having violated General Statutes
§ 53a-167c was not knowing and voluntary.1 We agree,
in part, with the respondent’s due process claim regard-
ing the state’s burden of proof at a transfer hearing,
and, accordingly, reverse the judgment of the trial court.
The court’s memorandum of decision reveals the fol-
lowing undisputed facts and procedural history that are
relevant to our disposition of the respondent’s appeal.
The respondent is a seventeen year old transgender
female.2 She has been involved with DCF on and off
since the age of five. Throughout her lengthy history
with DCF, she has exhibited assaultive behavior toward
staff members, other juveniles, and females. On Novem-
ber 21, 2013, the respondent was adjudicated as delin-
quent on the basis of her guilty plea to assault on an
officer.3 She was thereafter committed to DCF pursuant
to General Statutes § 46b-140 for a period not to exceed
eighteen months. On the basis of this delinquency com-
mitment, the respondent was placed at the Mead-
owridge Academy in Swansea, Massachusetts
(Meadowridge). During her two month placement at
Meadowridge, the respondent evinced assaultive behav-
iors. On January 31, 2014, as a result of her assault
on a staff person, the respondent was removed from
Meadowridge and placed at the Connecticut Juvenile
Training School.
On February 4, 2014, pursuant to § 17a-12 (a), DCF
filed a motion to transfer the respondent to the John
R. Manson Youth Institution (Manson), a high security
institution run by DOC for young male offenders ranging
in age from fourteen to twenty-one years old, usually
with pending adult charges or serving adult sentences
as a consequence of having been tried in the Superior
Court as adults. On February 24, 2014, the respondent
filed a motion to dismiss DCF’s motion to transfer. After
holding a series of evidentiary hearings and making
findings of fact by a preponderance of the evidence,
the court, on March 20, 2014, denied the respondent’s
motion to dismiss and followed with an articulation of
its reasoning on April 8, 2014. Also, on April 8, 2014,
the court granted DCF’s motion to transfer the respon-
dent and ordered that the respondent be transferred to
the York Correctional Institution in Niantic (Niantic),
a correctional institution for females of all levels of
security operated by DOC.4 On May 6, 2014, the court
filed a memorandum of decision in support of its April
8 order to transfer. This appeal followed.5 Additional
facts will be set forth as necessary.
The statute at issue, § 17a-12 (a), provides: ‘‘When
the commissioner, or the commissioner’s designee,
determines that a change of program is in the best
interest of any child or youth committed or transferred
to the department, the commissioner or the commis-
sioner’s designee, may transfer such person to any
appropriate resource or program administered by or
available to the department, to any other state depart-
ment or agency, or to any private agency or organization
within or without the state under contract with the
department; provided no child or youth voluntarily
admitted to the department under section 17a-11 shall
be placed or subsequently transferred to the Connecti-
cut Juvenile Training School; and further provided no
transfer shall be made to any institution, hospital or
facility under the jurisdiction of the Department of Cor-
rection, except as authorized by section 18-87, unless
it is so ordered by the Superior Court after a hearing.
When, in the opinion of the commissioner, or the com-
missioner’s designee, a person fourteen years of age or
older is dangerous to himself or herself or others or
cannot be safely held at the Connecticut Juvenile Train-
ing School, if a male, or at any other facility within the
state available to the Commissioner of Children and
Families, the commissioner, or the commissioner’s des-
ignee, may request an immediate hearing before the
Superior Court on the docket for juvenile matters where
such person was originally committed to determine
whether such person shall be transferred to the John
R. Manson Youth Institution, Cheshire, if a male, or
the Connecticut Correctional Institution, Niantic, if a
female. The court shall, within three days of the hearing,
make such determination. If the court orders such trans-
fer, the transfer shall be reviewed by the court every
six months thereafter to determine whether it should
be continued or terminated, unless the commissioner
has already exercised the powers granted to the com-
missioner under section 17a-13 by removing such per-
son from the John R. Manson Youth Institution,
Cheshire or the Connecticut Correctional Institution,
Niantic. Such transfer shall terminate upon the expira-
tion of the commitment in such juvenile matter.’’6
The respondent raises three claims on appeal with
respect to the granting of DCF’s motion to transfer. The
first two issues implicate the respondent’s due process
rights under the United States and Connecticut constitu-
tions. The due process claims relate to whether the
statute in question is impermissibly vague and to
whether the transfer hearing afforded to the respondent
pursuant to the statute adequately protected her liberty
interests. The third issue relates to whether the respon-
dent’s plea that resulted in a delinquency finding was
knowing and voluntary. We take up each in turn.
I
As a preliminary matter, however, we must consider
whether the issues raised on appeal are moot because,
since the filing of this appeal, the respondent has been
returned to the custody of DCF and also because she
will attain the age of eighteen during this calendar year.
It is well established that ‘‘[m]ootness implicates
[this] court’s subject matter jurisdiction and is thus a
threshold matter for us to resolve.’’ (Internal quotation
marks omitted.) In re Emma F., 315 Conn. 414, 423,
107 A.3d 947 (2015). ‘‘Because mootness implicates this
court’s subject matter jurisdiction, it may be raised at
any time, including by this court sua sponte.’’ State v.
Charlotte Hungerford Hospital, 308 Conn. 140, 143, 60
A.3d 946 (2013). Accordingly, before reaching the merits
of this appeal, we must address the threshold issue of
whether the respondent’s claims are moot and, if so,
whether we have jurisdiction over the matter on the
basis of an exception to the mootness doctrine.
‘‘Mootness is a threshold issue that implicates subject
matter jurisdiction, which imposes a duty on the court
to dismiss a case if the court can no longer grant practi-
cal relief to the parties.’’ (Internal quotation marks omit-
ted.) New Image Contractors, LLC v. Village at
Mariner’s Point Ltd. Partnership, 86 Conn. App. 692,
698, 862 A.2d 832 (2004). ‘‘When, during the pendency
of an appeal, events have occurred that preclude an
appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot. . . . It is a well-settled general rule that the exis-
tence of an actual controversy is an essential requisite to
appellate jurisdiction; it is not the province of appellate
courts to decide moot questions, disconnected from the
granting of actual relief or from the determination of
which no practical relief can follow.’’ (Internal quota-
tion marks omitted.) In re Steven M., 264 Conn. 747,
754, 826 A.2d 156 (2003).
As noted, the respondent was returned to the custody
of DCF on June 24, 2014; see footnote 5 of this opinion;
additionally, the file reflects that she will reach the age
of majority prior to the end of 2015. In its brief, while
asserting that the matter is moot because the respon-
dent has been returned to its custody, DCF also con-
cedes that the matter may be reviewable under the
‘‘capable of repetition, yet evading review’’ exception
to the mootness doctrine.7 ‘‘To qualify under this excep-
tion, an otherwise moot question must satisfy the fol-
lowing three requirements: First, the challenged action,
or the effect of the challenged action, by its very nature,
must be of a limited duration so that there is a strong
likelihood that the substantial majority of cases raising
a question about its validity will become moot before
appellate litigation can be concluded. Second, there
must be a reasonable likelihood that the question pre-
sented in the pending case will arise again in the future,
and that it will affect either the same complaining party
or a reasonably identifiable group for whom that party
can be said to act as surrogate. Third, the question
must have some public importance. Unless all three
requirements are met, the appeal must be dismissed
as moot.’’ (Internal quotation marks omitted.) We the
People of Connecticut, Inc. v. Malloy, 150 Conn. App.
576, 583, 92 A.3d 961, cert. denied, 314 Conn. 919, 100
A.3d 850 (2014).
In the case of In re Steven M., supra, 264 Conn. 747,
which concerned § 17a-12 (a), our Supreme Court con-
fronted the mootness issue we now face. Id., 750. As
an initial matter, the court in In re Steven M. held that
the juvenile’s challenge under the statute was moot
because, during the pendency of the appeal, the juvenile
had reached the age of eighteen and was no longer in
the custody of DCF. Id., 754. Next, the court analyzed
whether the challenge qualified for review under the
‘‘capable of repetition, yet evading review’’ exception
to mootness. Id., 754–55. In particular, the court noted
that ‘‘[p]ursuant to General Statutes § 46b-141 (a), a
juvenile who has been convicted as a delinquent shall
be committed to the custody of the department [of
children and families] for (1) an indeterminate time up
to a maximum of eighteen months . . . . At any time
after commencement of that eighteen month time
period, the department may seek to have the juvenile
transferred pursuant to § 17a-12 (a).’’ (Footnote omit-
ted; internal quotation marks omitted.) Id., 755. On the
basis of the interplay between these two statutes, the
court held that ‘‘[t]he effect of the transfer order is thus
limited, by its very nature, to less than eighteen months
and, therefore, is of such a limited duration that a sub-
stantial majority of the cases in which such an order
is entered will evade review.’’ Id., 755–56. Furthermore,
the court held that there was a reasonable likelihood
that the questions presented by the case would arise
each time that DCF seeks to transfer a delinquent juve-
nile to the custody of DOC and that recurrence of this
issue would affect a reasonably identifiable group for
whom the juvenile could be said to act as surrogate.
Id., 756. Finally, the court concluded that the issue
presented a question of public importance. Id. On the
basis of the foregoing, the court held that the issues
presented in the juvenile’s challenge to § 17a-12 (a)
were ‘‘capable of repetition, yet evading review.’’ (Inter-
nal quotation marks omitted.) Id.
Our Supreme Court’s mootness analysis from In re
Steven M. is equally applicable to the case at hand.
Here, the respondent was committed as delinquent pur-
suant to § 46b-140 and is therefore subject to transfer
under § 17a-12 (a). Pursuant to § 46b-141, a juvenile
who has been convicted as a delinquent shall be in the
custody of DCF only for ‘‘an indeterminate time up to
a maximum of eighteen months . . . .’’ Therefore,
DCF’s ability to transfer a delinquent juvenile from its
own custody to the custody of DOC pursuant to § 17a-
12 (a) is limited to the eighteen month period when the
juvenile is in the custody of DCF. Furthermore, there
is a reasonable likelihood that the issues presented in
this appeal will arise each time that DCF seeks to trans-
fer a delinquent juvenile to the custody of DOC and
these issues will affect a reasonably identifiable group
for whom the respondent can be said to act as a surro-
gate. Finally, we conclude that the claims raised in
this appeal present a question of public importance,
specifically, whether a statute that permits the transfer
of a minor in the custody of DCF to be transferred to
DOC to be housed at Manson, if a male, or Niantic, if
female, is constitutional. Indeed, whether a delinquent
child committed to the state’s protective supervision
under DCF can legally be imprisoned in an adult penal
institution under the supervision of DOC raises ques-
tions fundamental to a fair society. On the basis of the
foregoing, we conclude that the questions presented
by this appeal are ‘‘capable of repetition, yet evading
review.’’ Accordingly, we address each of the claims
raised on appeal.
II
At the outset, we set forth certain precepts that guide
our constitutional analysis. ‘‘The constitutionality of a
statute presents a question of law over which our review
is plenary. . . . It is well established that a validly
enacted statute carries with it a strong presumption
of constitutionality, [and that] those who challenge its
constitutionality must sustain the heavy burden of prov-
ing its unconstitutionality beyond a reasonable doubt.
. . . The court will indulge in every presumption in
favor of the statute’s constitutionality . . . . There-
fore, [w]hen a question of constitutionality is raised,
courts must approach it with caution, examine it with
care, and sustain the legislation unless its invalidity
is clear.’’ (Citation omitted; internal quotation marks
omitted.) State v. McKenzie-Adams, 281 Conn. 486, 500,
915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248,
169 L. Ed. 2d 148 (2007), overruled in part on other
grounds by State v. Payne, 303 Conn. 538, 548, 34 A.3d
370 (2012).
Additionally, ‘‘this court has a duty to construe stat-
utes, whenever possible, to avoid constitutional infirmi-
ties . . . .’’ (Internal quotation marks omitted.) State
v. Cook, 287 Conn. 237, 245, 947 A.2d 307, cert. denied,
555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008).
‘‘Further, in evaluating [a] defendant’s challenge to the
constitutionality of [a] statute, we read the statute nar-
rowly in order to save its constitutionality, rather than
broadly in order to destroy it. We will indulge in every
presumption in favor of the statute’s constitutionality
. . . . In so doing, we take into account any prior inter-
pretations that this court, our Appellate Court and the
Appellate Session of the Superior Court have placed
on the statute. . . . Finally, we may also add interpre-
tive gloss to a challenged statute in order to render it
constitutional. In construing a statute, the court must
search for an effective and constitutional construction
that reasonably accords with the legislature’s underly-
ing intent.’’ (Citations omitted; footnote omitted; inter-
nal quotation marks omitted.) State v. Indrisano, 228
Conn. 795, 805–806, 640 A.2d 986 (1994).
A
The respondent claims that § 17a-12 (a) is unconstitu-
tional under the fourteenth amendment to the United
States constitution and article first, §§ 8 and 9, of the
Connecticut constitution because it is void for
vagueness. She argues that § 17a-12 (a) does not provide
fair notice of what conduct is prohibited, nor does it
establish minimum guidelines to govern law enforce-
ment. In particular, the respondent argues that because
the determination of whether to transfer an individual
from a secure juvenile setting to an adult prison requires
consideration of whether the individual is ‘‘dangerous’’
to himself, herself or others, the definition of the term
‘‘dangerous’’ must be explicated in the statute so that a
person potentially subject to the statute has reasonable
notice of what behavior may or may not be considered
to be dangerous. For example, as the respondent points
out, the notion of dangerousness could contemplate
behavior that poses no risk of physical danger but could
present a circumstance of moral danger. The statute,
however, does not address whether the term ‘‘danger-
ous’’ is intended to relate only to physical danger or is
intended to encompass other forms of danger as well.8
In response, DCF argues that § 17a-12 (a) is not void
for vagueness because the respondent’s conduct clearly
comes within the statute’s core of prohibited conduct.
Specifically, DCF argues that the respondent was on
notice that she could be subject to transfer to DOC
pursuant to § 17a-12 (a) because her assaultive behav-
iors have presented dangers, and, indeed, injuries to
others.
The determination of whether a statute is unconstitu-
tionally vague presents a question of law over which
our review is de novo. State v. Knybel, 281 Conn. 707,
713, 916 A.2d 816 (2007). ‘‘[A] penal statute [must] define
[a] criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohib-
ited and in a manner that does not encourage arbitrary
and discriminatory enforcement. . . . [This concept]
embodies two central precepts: the right to fair warning
of the effect of a governing statute or regulation and
the guarantee against standardless law enforcement.
. . . [T]he [most] important aspect of the vagueness
doctrine is not actual notice . . . but . . . the require-
ment that a legislature establish minimal guidelines to
govern law enforcement. . . . Thus, [i]n order to sur-
mount a vagueness challenge, a statute [must] afford a
person of ordinary intelligence a reasonable opportu-
nity to know what is permitted or prohibited . . . and
must not impermissibly [delegate] basic policy matters
to policemen, judges, and juries for resolution on an
ad hoc and subjective basis, with the attendant dangers
of arbitrary and discriminatory application. . . .
Finally, [i]f the meaning of a statute can be fairly ascer-
tained [the] statute will not be void for vagueness . . .
for [i]n most English words and phrases there lurk
uncertainties. . . . [T]he statute must contain some
core meaning within which the [respondent’s] actions
clearly fall. . . . References to judicial opinions involv-
ing the statute, the common law, legal dictionaries, or
treatises may be necessary to ascertain a statute’s mean-
ing to determine if it gives fair warning. . . .
‘‘For statutes that do not implicate the especially
sensitive concerns embodied in the first amendment,
we determine the constitutionality of a statute under
attack for vagueness by considering its applicability to
the particular facts at issue. . . . [T]o prevail on [her]
claim, the [respondent] must demonstrate . . . that the
statute, as applied to [her], deprived [her] of adequate
notice of what conduct the statute proscribed or that
[she] fell victim to arbitrary and discriminatory enforce-
ment.’’ (Internal quotation marks omitted.) State v. Ste-
phens, 301 Conn. 791, 801–802, 22 A.3d 1262 (2011).
‘‘The void for vagueness doctrine is a procedural due
process concept that originally was derived from the
guarantees of due process contained in the fifth and
fourteenth amendments to the United States constitu-
tion. The Connecticut constitution also requires that
statutes with penal consequences provide sufficient
notice to citizens to apprise them of what conduct is
prohibited.’’ (Internal quotation marks omitted.) State
v. Stuart, 113 Conn. App. 541, 560–61, 967 A.2d 532,
cert. denied, 293 Conn. 922, 980 A.2d 914 (2009). ‘‘In
undertaking such review, we make every presumption
in favor of the statute’s validity. . . . Accordingly, [t]o
demonstrate that [a statute] is unconstitutionally vague
as applied to [the respondent, she must] . . . demon-
strate . . . that [she] had inadequate notice of what
was prohibited or that [she was] the victim of arbitrary
and discriminatory enforcement.’’ (Citation omitted;
internal quotation marks omitted.) State v. LaFontaine,
128 Conn. App. 546, 550–51, 16 A.3d 1281 (2011).
As noted, the statute in question, § 17a-12 (a), sub-
jects a juvenile in the custody of DCF to being trans-
ferred from the custody of DCF to an adult correctional
facility ‘‘[w]hen, in the opinion of the commissioner, or
the commissioner’s designee, a person fourteen years
of age or older is dangerous to himself or herself or
others or cannot be safely held at the Connecticut Juve-
nile Training School, if a male, or at any other facility
within the state available to the Commissioner of Chil-
dren and Families . . . .’’9 (Emphasis added.)
The crux of the respondent’s vagueness argument is
that § 17a-12 (a) does not provide fair notice of what
conduct is prohibited. Specifically, she argues that the
term ‘‘dangerous’’ must be clearly defined in the body
of the statute because, as it is currently written, it does
not provide notice to individuals regarding what behav-
iors can result in transfer to an adult correctional
facility.
The facts here, which do not involve first amendment
issues, defeat the respondent’s claim that the statute is
void for vagueness as applied to her. Contrary to her
claim of inadequate notice of proscribed behavior, the
record amply supports the conclusion that the respon-
dent exhibited physically dangerous behaviors while
in the custody of DCF and was, in fact, adjudicated
delinquent on the basis of a physical assault. In light
of this history, the respondent’s claim that she was not
on notice that her behaviors could reasonably be seen
as dangerous to herself or others must fail. We conclude
that a person of ordinary intelligence in the respon-
dent’s circumstances would comprehend that the
assaultive behavior she exhibited could be found to
present a danger to others. In sum, we are persuaded
that a person of ordinary intelligence would understand,
from a fair reading of the statute, that physically
assaultive behaviors such as exhibited by the respon-
dent would subject a DCF ward to the transfer provi-
sions set forth in § 17a-12 (a). The statute is not void
for vagueness as applied to the respondent.
B
The respondent next claims that § 17a-12 (a) is uncon-
stitutional under the fifth, sixth, and fourteenth amend-
ments to the United States constitution and article first,
§§ 8 and 9, and § 19, of the Connecticut constitution,
as amended by article four of the amendments, because
it allows for the imprisonment of an individual without
procedural due process. Specifically, the respondent
argues that a transfer from DCF to DOC infringes on
a constitutionally protected liberty interest and that due
process requires that before a delinquent juvenile can
be deprived of this liberty interest, he or she must be
given certain procedural protections lacking in the sub-
ject statute such as the right to a jury trial and an
adjudication that is based on proof beyond a reasonable
doubt, adduced by DCF, that a person’s transfer from
DCF to DOC comports with the statute’s criteria for
transfer. In response, DCF claims that, absent facts
that a transfer under § 17a-12 (a) amounts to a penal
imprisonment and attendant major changes in the con-
ditions of confinement, the due process rights of a juve-
nile who has already been adjudicated as delinquent
are adequately protected by the manner in which the
transfer statute was applied to the respondent. Specifi-
cally, DCF argues that due process considerations do
not require that a juvenile subject to the provisions of
§ 17a-12 (a) be afforded the right to a trial by jury, and
a standard that requires proof by a preponderance of
evidence is appropriate to a person in the respondent’s
status. In sum, DCF claims that because the respondent
is already in the custody of the state, the risk to her of
a transfer from one place of confinement to another
does not warrant an elevated character of due process.
‘‘The requirements for a successful due process claim
are well established. The fourteenth amendment to the
United States constitution provides that the State [shall
not] deprive any person of life, liberty, or property,
without due process of law . . . . In order to prevail
on [her] due process claim, the [respondent] must prove
that: (1) [she] has been deprived of a property [or lib-
erty] interest cognizable under the due process clause;
and (2) the deprivation of the property [or liberty] inter-
est has occurred without due process of law.’’ (Empha-
sis omitted; internal quotation marks omitted.) State v.
Angel C., 245 Conn. 93, 104, 715 A.2d 652 (1998). ‘‘Liberty
interests protected by the Fourteenth Amendment may
arise from two sources—the Due Process Clause itself
and the laws of the States.’’ (Internal quotation marks
omitted.) Id. The United States Supreme Court has
‘‘repeatedly held that state statutes may create liberty
interests that are entitled to the procedural protections
of the Due Process Clause of the Fourteenth Amend-
ment.’’ Vitek v. Jones, 445 U.S. 480, 488, 100 S. Ct. 1254,
63 L. Ed. 2d 552 (1980). As a general matter, ‘‘[w]here
procedural due process must be afforded because a
liberty or property interest is within the Fourteenth
Amendment’s protection, there must be determined
what process is due in the particular context.’’ (Internal
quotation marks omitted.) Smith v. Organization of
Foster Families for Equality & Reform, 431 U.S. 816,
847, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977).
Finally, in this regard, we note that a due process
analysis cannot be conducted in a vacuum. Our
Supreme Court has repeatedly ‘‘stated that, [a] proce-
dural due process challenge to the validity of [a statute]
cannot proceed in the abstract. . . . It is a settled rule
of constitutional adjudication that a court will decide
the constitutionality of a statute only as it applies to
the particular facts at hand. . . . A party who chal-
lenges the constitutionality of a statute must prove that
the statute has adversely affected a protected interest
under the facts of his particular case and not merely
under some possible or hypothetical set of facts not
proven to exist. . . . Therefore, [a] claim that a statute
fails, on its face, to comport with the constitutional
requirements of procedural due process reflects a fun-
damental misunderstanding of the law of due process.
Due process is inherently fact-bound because due pro-
cess is flexible and calls for such procedural protections
as the particular situation demands. . . . The constitu-
tional requirement of procedural due process thus
invokes a balancing process that cannot take place in a
factual vacuum.’’ (Citations omitted; internal quotation
marks omitted.) State v. Long, 268 Conn. 508, 522–23,
847 A.2d 862 (en banc), cert. denied, 543 U.S. 969, 125
S. Ct. 424, 160 L. Ed. 2d 340 (2004). As noted by the
United States Supreme Court: ‘‘[D]ue process, unlike
some legal rules, is not a technical conception with a
fixed content unrelated to time, place and circum-
stances. . . . [D]ue process is flexible and calls for
such procedural protections as the particular situation
demands.’’ (Citation omitted; internal quotation marks
omitted.) Mathews v. Eldridge, 424 U.S. 319, 334–35,
96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); see also Jones v.
Connecticut Medical Examining Board, 309 Conn. 727,
736, 72 A.3d 1034 (2013).
In assessing the level of due process required in any
particular judicial setting, the Supreme Court, in
Mathews, set forth three factors to be considered in
balancing the respective interests of the parties: ‘‘First,
the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the
probable value, if any, of additional or substitute proce-
dural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.’’ Mathews v.
Eldridge, supra, 424 U.S. 335.
We turn now to an application of these principles to
the procedural facts at hand. As a juvenile committed
to DCF, the respondent is entitled to some level of due
process in a hearing that could subject her to incarcera-
tion in an adult correctional facility. The question pre-
sented to us entails an assessment of the character and
scope of such due process. To be sure, although juvenile
court hearings need not conform to all requirements of
adult criminal proceedings, juvenile proceedings ‘‘must
measure up to the essentials of due process and fair
treatment.’’ Kent v. United States, 383 U.S. 541, 562, 86
S. Ct. 1045, 16 L. Ed. 2d 84 (1966). Put another way and
as observed by the United States Supreme Court: ‘‘[T]he
applicable due process standard in juvenile proceedings
. . . is fundamental fairness.’’ McKeiver v. Pennsylva-
nia, 403 U.S. 528, 543, 91 S. Ct. 1976, 29 L. Ed. 2d
647 (1971).
But, while a juvenile is entitled to due process, the
specific contours of that right, in the setting of juvenile
proceedings, need not mirror adult proceedings.
‘‘Unlike an adult’s liberty interest, however, a juvenile’s
liberty interest always is limited by the state’s indepen-
dent parens patriae interest in preserving and promot-
ing the juvenile’s welfare, and must be qualified by the
recognition that juveniles, unlike adults, are always in
some form of custody. . . . Thus, due process does
not mandate elimination of all differences in the treat-
ment of juveniles. . . . Moreover, just as a criminal
conviction sufficiently extinguished the [adult] defen-
dant’s liberty interest to empower the State to confine
him in any of its prisons . . . unless the transfer to a
different facility constitutes a major change in the
conditions of confinement amounting to a grievous
loss . . . a juvenile who already has been adjudicated
delinquent and is in the custody of the state does not
possess the same liberty interest as a juvenile who
faces delinquency proceedings. A fortiori, a delinquent
juvenile who faces transfer proceedings pursuant to
§ 17a-12 (a) does not have the same liberty interest as
an adult who faces criminal proceedings.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) In re Steven M., supra, 264 Conn. 763.
As a threshold matter, we address DCF’s assertion
that our Supreme Court, in In re Steven M., supra, 264
Conn. 747, resolved all the due process issues presently
raised by the respondent in the appeal at hand. DCF
urges this court to rely on In re Steven M. as the sole
appellate authority on § 17a-12 (a), arguing that In re
Steven M. correctly analyzed United States Supreme
Court precedent and other decisions to determine that
a juvenile does not have the same level of liberty interest
during a transfer proceeding that she or he might have
if facing criminal or delinquency charges. DCF is correct
in that, pursuant to In re Steven M., the respondent,
when facing a transfer hearing under the subject statute,
does not have the same liberty interest as a criminal
defendant in adult proceedings or a juvenile facing
delinquency proceedings. Our Supreme Court, in In re
Steven M., said as much. See id., 763. That determina-
tion, however, does not settle the question of the partic-
ular quality of due process to which a juvenile is entitled
when confronted by a transfer application under § 17a-
12 (a). In In re Steven M., the court was not confronted
with the qualitative claims we face in the present appeal
requiring this court, on review, to elucidate the quality
and contours of due process necessary to a constitution-
ally adequate transfer hearing. In In re Steven M., the
respondent claimed that the court, in a statutory trans-
fer hearing, was required to find that such a transfer
was in the respondent’s best interest. Id., 756. Rejecting
this claim, the court held that the trial court, in such a
hearing, need only consider the child’s best interest and
that a transfer could be made properly, even absent a
finding that it was in a child’s best interest, if the court
finds that the child is dangerous to himself, herself, or
others or that DCF cannot safely maintain the child in
its custody. Id., 756–57. The court in In re Steven M.
held, as well, that the trial court, when conducting a
transfer hearing, should determine the child’s compe-
tency and, if the child is not competent, should appoint
a guardian ad litem for the child. Id., 764. Neither of
those issues is presented in the present appeal. In sum,
the specific procedural due process claims made in this
appeal were not presented in In re Steven M.
We consider next the respondent’s claim that she is
entitled to a trial by jury. She makes this claim on the
basis of her assertion that because, as a result of a
transfer hearing, she could be transferred to DOC where
she could be held in custody in an adult correctional
facility in which all the other inmates were afforded
the right to trial by jury, she should not be treated
differently merely because of her juvenile status.
In McKeiver v. Pennsylvania, supra, 403 U.S. 528,
the United States Supreme Court was confronted with
a claim by a juvenile that because due process applies
to juvenile delinquency proceedings, a juvenile should
not be adjudicated delinquent without the benefit of a
jury trial. Recognizing that post-Gault10 juveniles were
entitled to certain due process rights, the court in
McKeiver nevertheless declined to find that fundamen-
tal fairness dictated the right to a jury trial in juvenile
proceedings, stating: ‘‘[W]e conclude that trial by jury
in the juvenile court’s adjudicative stage is not a consti-
tutional requirement.’’ Id., 545. Although this claim pre-
sents a difficult question because the result of a transfer
order is that a juvenile is committed to a penal institu-
tion where only convicted inmates or those awaiting
trial are housed, we believe that the court’s reasoning
in McKeiver is applicable to a transfer hearing as well.11
There, the court expressed its concern that a trial by
jury could make the juvenile process fully adversary,
that the imposition of a jury requirement would not
necessarily strengthen fact finding, and that requiring
a jury would invariably introduce delays often against
the best interest of the child in question. Id., 545–50.
Although the court in McKeiver was considering the due
process need for a jury trial in a delinquency hearing, we
believe its reasoning is equally applicable to a transfer
hearing under § 17a-12, even though the result of such
a hearing could be the transfer of a child’s custody
to DOC.
We come to this conclusion, in part, on the basis of
the protections embedded in § 17a-12 (a) and by the
nature of the determinations that must be made in order
to properly act pursuant to the statute. Even though
the court, in this instance, granted DCF’s motion to
transfer the respondent to DOC, the court’s transfer
order was specific as to which correctional facility the
respondent would be transferred. It ordered: ‘‘The
Motion to Transfer Angel to the Commissioner of Cor-
rection is GRANTED. She is ordered transferred to
Niantic as a transgendered female.’’ Additionally, the
statute contemplates that DCF has a continuing role
in monitoring the juvenile’s well-being while in DOC’s
custody. The statute requires, as well, that if the court
orders a transfer, the court must conduct a review every
six months to determine whether the juvenile’s commit-
ment to DOC should continue or be terminated unless
the juvenile has already been returned to DCF’s
custody.
In addition to these statutory safeguards, there is the
practical consideration that the fact-finding prerequi-
sites to the statute’s application are better suited for
the determination of a judge than by lay members of a
jury. In order to make a transfer decision, a fact finder
must consider whether such a transfer is in a child’s
best interest, whether a child is dangerous to himself,
herself or others, whether DCF cannot safely retain
the child’s custody, and whether DOC offers a suitable
environment for such a juvenile. Lay people, however,
would not be required to have any knowledge of the
workings of DCF or DOC or the juvenile justice system
in order to be qualified as jurors. In balance, we believe
that a child’s best interests and the community’s con-
cerns are adequately protected by a hearing conducted
hearing before a judge without the need for a jury.
The respondent next claims that in pursuing a motion
to transfer, due process requires that the proponent
of the motion should bear the burden of proving its
allegations by proof beyond a reasonable doubt. In
response, DCF argues that a determination based on a
preponderance of the evidence adequately protects a
juvenile’s due process rights. We agree with the respon-
dent’s assertion that a preponderance standard of proof
does not adequately protect the juvenile’s liberty inter-
est at stake in a transfer hearing. We do not agree,
however, that due process considerations mandate that
DCF should be required to prove its allegations beyond
a reasonable doubt.
At the outset, we comment briefly on the character
of evidence that must be adduced at a transfer hearing
pursuant to § 17a-12 (a) in order for the statute to pass
constitutional scrutiny. As pointed out by our Supreme
Court in In re Steven M., supra, 264 Conn. 756, the
proponent of the transfer must introduce some evi-
dence that a transfer is in the juvenile’s best interest.
Although our Supreme Court indicated in In re Steven
M. that the trial court need not find that a transfer is,
in fact, in a juvenile’s best interest, it is a factor the
court should consider. Id. This factor requires evidence
that the anticipated conditions of incarceration under
the supervision of DOC are necessitated by the level
of the juvenile’s dangerousness and that the protections
and care afforded a juvenile under DCF supervision are
not extinguished by the transfer of a juvenile to an adult
penal facility. Additionally, the proponent must adduce
evidence that the juvenile is a danger to himself, herself,
or to others or cannot be safely held in DCF custody.
Id., 756–57. Our conclusion is rooted in due process
considerations and based on the practicality that DCF,
as the moving party to a transfer request pursuant to
§ 17a-12 (a), is in a far superior position to adduce
evidence relevant to the statute’s application than a
juvenile defending against such a transfer and a person,
presumably, with no independent knowledge of the cir-
cumstances that he or she may be facing if incarcerated
in a correctional facility.
We turn next to the question of the level of burden
of proof. In the case at hand, after hearing evidence
over the course of six days, the court found, on the basis
of a preponderance of the evidence, that the respondent
was too dangerous to be housed at a facility operated
by DCF and, accordingly, ordered her transferred to
the custody of DOC.
Contrary to DCF’s claims, we conclude that the
respondent has a liberty interest in not being transferred
from the protective umbrella of DCF to the penal envi-
ronment of a DOC institution such as Manson or Nian-
tic. We are, of course, mindful of our Supreme Court’s
dicta in In re Steven M.: ‘‘Unlike an adult’s liberty inter-
est . . . a juvenile’s liberty interest always is limited
by the state’s independent parens patriae interest in
preserving and promoting the juvenile’s welfare, and
must be qualified by the recognition that juveniles,
unlike adults, are always in some form of custody.’’
(Internal quotation marks omitted.) Id., 763. In stating
that a juvenile who has already been adjudicated a
delinquent does not have the same liberty interest as
an adult, the court in In re Steven M. did not conclude
or even suggest that a juvenile is devoid of any liberty
interest in not being confined in an adult correctional
facility. To the contrary, our Supreme Court’s discus-
sion in In re Steven M. must be read as being in harmony
with the court’s salutary comments recently made in
In re Jusstice W., 308 Conn. 652, 65 A.3d 487 (2012).
There, the court opined: ‘‘Connecticut’s juvenile justice
system is designed to provide delinquent minors with
guidance and rehabilitation . . . . The objective of
juvenile court proceedings is to determin[e] the needs of
the child and of society rather than adjudicat[e] criminal
conduct. The objectives are to provide measures of
guidance and rehabilitation . . . not to fix criminal
responsibility, guilt and punishment. . . . Thus the
child found delinquent is not perceived as a criminal
guilty of one or more offenses, but rather as a child in
need of guidance and rehabilitative services.’’ (Citations
omitted; internal quotation marks omitted.) Id., 666. In
light of the language of In re Jusstice W. regarding
the purpose of the juvenile justice system, we cannot
conclude that a juvenile subject to transfer from the
protections of DCF to be confined in a penal institution
under DOC supervision is shorn of due process rights.
Thus, we do not read In re Steven M. beyond its holding
to adopt a minimalist view of a juvenile delinquent’s
rights to due process when subject to transfer under
§ 17a-12 (a). And, as we have noted, the court in In re
Steven M. was not confronted with the specific due
process claims made in the case at hand.
We proceed with the acknowledgement that a juve-
nile, like an adult, is constitutionally entitled to proof
beyond a reasonable doubt when charged with a viola-
tion of criminal law and, thereby, subject to a delin-
quency determination. See In re Winship, 397 U.S. 358,
90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see also In re
Jason C., 255 Conn. 565, 767 A.2d 710 (2001).
The respondent, however, is not in the same legal
position as a juvenile, not yet committed to the state,
who is facing a delinquency charge. There, a juvenile
faces a risk of confinement, a significant loss of liberty.
Here, to the contrary, the respondent had already sus-
tained a loss of liberty by reason of the previous delin-
quency adjudication and attendant commitment. Thus,
the respondent’s liberty interest is attenuated from that
of a child who has not yet suffered a loss of liberty.
Nevertheless, such a child retains a liberty interest
in not being transferred to an institution that operates
under none of the child protective mandates embedded
in legislation regarding the operations of DCF.
A comparison of the disparate missions of the two
agencies is instructive. As indicated in General Statutes
§ 46b-121h, the intention of the juvenile justice system
is to ‘‘provide individualized supervision, care, account-
ability and treatment in a manner consistent with public
safety to those juveniles who violate the law. The juve-
nile justice system shall also promote prevention efforts
through the support of programs and services designed
to meet the needs of juveniles charged with the commis-
sion of a delinquent act. . . .’’ Furthermore, the goals
of the juvenile justice system, inter alia, are to: ‘‘(1)
Hold juveniles accountable for their unlawful behavior;
(2) Provide secure and therapeutic confinement to
those juveniles who present a danger to the community;
(3) Adequately protect the community and juveniles;
(4) Provide programs and services that are community-
based and are provided in close proximity to the juve-
nile’s community; (5) Retain and support juveniles
within their homes whenever possible and appropriate;
(6) Base probation treatment planning upon individual
case management plans; (7) Include the juvenile’s fam-
ily in the case management plan . . . .’’ General Stat-
utes § 46b-121h.
In contrast, DOC’s mission statement reads: ‘‘The
[DOC] shall strive to be a global leader in progressive
correctional practices and partnered re-entry initiatives
to support responsive evidence-based practices aligned
to law-abiding and accountable behaviors. Safety and
security shall be a priority component of this responsi-
bility as it pertains to staff, victims, citizens and offend-
ers.’’ State of Connecticut Department of Correction,
‘‘Mission Statement and Vision,’’ (last modified April
4, 2014), available at http://www.ct.gov/doc/lib/doc/pdf/
ad/ad0101.pdf (last visited June 5, 2015) (copy con-
tained in the file of this case in the Appellate Court
clerk’s office). Notably absent from DOC’s mission are
the child-protective and programmatic features of
DCF’s obligation to juveniles in its care. Given the dispa-
rate missions of DOC and DCF and, in particular, the
absence of any child-centric responsibilities in DOC’s
charter, we believe a juvenile has a heightened liberty
interest at stake in a transfer hearing under § 17a-12
(a) in which the proponent of such a transfer must,
constitutionally, be required to adduce proof adequate
to justify invoking the statute’s provisions at a standard
greater than a mere preponderance.
‘‘In cases involving individual rights, whether crimi-
nal or civil, [t]he standard of proof [at a minimum]
reflects the value society places on individual liberty.’’
(Internal quotation marks omitted.) Addington v.
Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d
323 (1979). ‘‘It is well established that, [w]here no stan-
dard of proof is provided in a statute, due process
requires that the court apply a standard which is appro-
priate to the issues involved. . . . [I]n any given pro-
ceeding, the minimum standard of proof tolerated by
the due process requirement reflects not only the weight
of the private and public interests affected, but also a
societal judgment about how the risk of error should
be distributed between the litigants. . . .
‘‘Thus, while private parties may be interested
intensely in a civil dispute over money damages, appli-
cation of a fair preponderance of the evidence standard
indicates both society’s minimal concern with the out-
come, and a conclusion that the litigants should share
the risk of error in roughly equal fashion. . . . When
the [s]tate brings a criminal action to deny a defendant
liberty or life, however, the interests of the defendant
are of such magnitude that historically and without
any explicit constitutional requirement they have been
protected by standards of proof designed to exclude
as nearly as possible the likelihood of an erroneous
judgment. . . . The stringency of the beyond a reason-
able doubt standard bespeaks the weight and gravity
of the private interest affected . . . society’s interest
in avoiding erroneous convictions, and a judgment that
those interests together require that society impos[e]
almost the entire risk of error upon itself. . . .
‘‘[The United States Supreme] Court has mandated an
intermediate standard of proof—clear and convincing
evidence—when the individual interests at stake in a
state proceeding are both particularly important and
more substantial than mere loss of money. . . . Not-
withstanding the state’s civil labels and good intentions
. . . this level of certainty [is] necessary to preserve
fundamental fairness in a variety of government-initi-
ated proceedings that threaten the individual involved
with a significant deprivation of liberty or stigma. . . .
‘‘In [Santosky v. Kramer, 455 U.S. 745, 769–70, 102
S. Ct. 1388, 71 L. Ed. 2d 599 (1982)], the United States
Supreme Court held that, in a hearing on a petition to
terminate parental rights, due process require[s] that
the state prove statutory termination criteria by a clear
and convincing evidence standard rather than by a fair
preponderance of the evidence standard.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Fish v. Fish, 285 Conn. 24, 69–71, 939 A.2d
1040 (2008).
In determining the appropriate standard of proof,
and recognizing that a juvenile who has already been
adjudicated as a delinquent does not have the same
liberty interest as an adult criminal defendant or a juve-
nile who has not already been adjudicated, we are per-
suaded that the liberty interest at stake in being
transferred from the custody of DCF to DOC is suffi-
ciently great to warrant the requirement that, before
ordering such a transfer, the court must be convinced
by evidence greater than a mere preponderance that
the requisites for transfer have been proven.
In granting a transfer motion under § 17a-12 (a), the
court gives its imprimatur to transferring a juvenile
from a facility operated by DCF under its care and
treatment mandate to a penal institution whose primary
purpose is to incarcerate criminal offenders in a secure
environment and whose purpose does not relate to the
state’s parens patriae responsibility to minors. We con-
clude, accordingly, that in order to protect the constitu-
tionality of the transfer statute, the burden should be on
DCF to adduce evidence regarding whether a transfer to
DOC is warranted by ‘‘clear and convincing evidence,’’
that the juvenile subject to transfer to DOC is a danger
to himself or herself or others or cannot be safely held
under the supervision of DCF. Some evidence must also
be adduced by the proponent that a transfer is in the
juvenile’s best interest.12 In In re Steven M., supra, 264
Conn. 763, our Supreme Court observed that ‘‘unless
the transfer to a different facility constitutes a major
change in the conditions of confinement amounting to
a grievous loss . . . a juvenile who already has been
adjudicated delinquent and is in the custody of the state
does not possess the same liberty interest as a juvenile
who faces delinquency proceedings.’’ (Citation omitted;
internal quotation marks omitted.) The ‘‘grievous loss’’
language employed in In re Steven M. stems from a
United States Supreme Court opinion in Vitek v. Jones,
supra, 445 U.S. 480. There, the court found that when
a person loses his liberty as a result of a criminal convic-
tion, the state is thus empowered to confine him in any
of its prisons, but the convicted criminal nevertheless
has a liberty interest in not being transferred to a mental
health facility. Id., 493. The court reasoned: ‘‘[C]hanges
in the conditions of confinement having a substantial
adverse impact on the prisoner are not alone sufficient
to invoke the protections of the Due Process Clause
[a]s long as the conditions or degree of confinement to
which the prisoner is subjected is within the sentence
imposed upon him.’’ (Internal quotation marks omit-
ted.) Id. In the case at hand, the respondent is not
confronted with a change in the conditions of her cus-
tody while a ward of DCF; instead, the statute in ques-
tion contemplates her transfer to a separate agency,
one with a fundamentally different societal purpose.
Requiring this quantum and character of proof pro-
vides a framework that assures that implementation of
the statute’s transfer provision is not tantamount to an
abdication of DCF’s parens patriae responsibility to
juveniles in its care.
In the case at hand, DCF was not held to a clear and
convincing standard regarding the respondent’s level
of dangerousness or its inability to safely maintain the
respondent in its care. As a consequence, the respon-
dent was denied due process in the transfer process.
Accordingly, the judgment of the court regarding trans-
fer cannot stand.
III
The respondent’s final claim is that the court erred
in finding that her plea, entered on November 13, 2013,
was knowing and voluntary. In particular, the respon-
dent argues that for her plea to be knowing and volun-
tary, she should have been informed that DCF had the
ability to request her transfer from its custody to the
custody of DOC because such a transfer constitutes a
direct consequence of the plea. In response, DCF argues
that the respondent’s placement under the supervision
of DOC after her adjudication of delinquency is an indi-
rect, collateral consequence and, therefore, the failure
to inform the respondent of her potential transfer to
the custody of DOC does not render her plea unknowing
or involuntary. We agree with DCF.
The following additional facts are relevant to our
resolution of the respondent’s claim. On November 13,
2013, the respondent entered a plea of guilty to the
charge of having violated § 53a-167c. At the time of the
respondent’s plea, the court canvassed the respondent.
The court asked, inter alia, for the respondent’s date
of birth, whether she was under the influence of any
substances, and whether she had an opportunity to
discuss her plea with her counsel. The court asked the
respondent whether she was satisfied with the advice
and assistance given to her by her counsel and whether
she understood the possible consequences of her plea.
Specifically, the court asked: ‘‘Do you understand that
if you’re adjudicated a delinquent, you can be commit-
ted to DCF for a period not to exceed forty-eight months
or four years and sent to residential placement? Do you
understand that?’’ The respondent answered: ‘‘Yes.’’ The
court then stated: ‘‘There is an agreement that you be
committed to DCF for a period not to exceed eighteen
months for direct placement. If, during the time—do
you understand that if—you’re going to go to residential
placement for a period of eighteen months. Prior to the
end of the eighteen month period DCF can ask to extend
your commitment for an additional eighteen months. If
that happens, you have a right to object to the extension,
request a hearing to contest that, and be represented by
an attorney. Do you understand that?’’ The respondent
affirmed: ‘‘Yes.’’
After the canvass, the court found that the plea was
‘‘knowingly, intelligently, and voluntarily entered into
with the adequate advice and effective assistance of
counsel.’’ After accepting the plea, the court concluded
that the respondent was ‘‘a convicted delinquent having
been found guilty of assault on an officer . . . .’’ In
addition, the court recited several procedural facts on
the record, including the terms of a motion for out-of-
state placement made by DCF. The court stated: ‘‘Basi-
cally, based on [the respondent’s] specialized needs
and issues, [her] current placement in detention is not
sufficient and that Meadowridge in Massachusetts is
the best place for [her] based on [her] behaviors.’’ The
court addressed the respondent and asked: ‘‘[I]t’s my
understanding that you’re in agreement with this out-
of-state placement and that you’ll go, is that correct?’’
The respondent replied: ‘‘Yes.’’ On the basis of the fore-
going, the court granted the motion for out-of-state
placement of the respondent and committed the respon-
dent to the ‘‘care and custody of DCF for direct place-
ment for a period not to exceed eighteen months.’’
We begin by setting forth the legal principles and
standard of review that guide our analysis. ‘‘Our cases
instruct that we conduct a plenary review of the circum-
stances surrounding the plea to determine if it was
knowing and voluntary. . . . A defendant entering a
guilty plea waives several fundamental constitutional
rights. . . . We therefore require the record affirma-
tively to disclose that the defendant’s choice was made
intelligently and voluntarily.’’ (Citation omitted; foot-
note omitted; internal quotation marks omitted.) In re
Fabian A., 106 Conn. App. 151, 157, 941 A.2d 411 (2008).
Next, ‘‘[a]n overview of the law governing pleas is
necessary for our disposition of this issue. A plea of
guilty or nolo contendere involves the waiver of several
fundamental constitutional rights and therefore must
be knowingly and voluntarily entered so as not to violate
due process. . . . These constitutional considerations
demand the utmost solicitude of which courts are capa-
ble in canvassing the matter with the accused to make
sure he has a full understanding of what the plea con-
notes and its consequences. . . .
‘‘There is no requirement, however, that the defen-
dant be advised of every possible consequence of such
a plea. . . . Although a defendant must be aware of
the direct consequences of a plea, the scope of direct
consequences is very narrow. . . . The failure to
inform a defendant as to all possible indirect and collat-
eral consequences does not render a plea unintelligent
or involuntary in a constitutional sense.’’ (Citations
omitted; internal quotation marks omitted.) In re Jason
C., supra, 255 Conn. 571–73.
‘‘The United States Supreme Court clearly has estab-
lished that constitutional due process protections apply
in the juvenile setting.’’ Id., 576. ‘‘Both case law and
Practice Book § 30a-4 mandate what a court must
address in canvassing a juvenile respondent. In In re
Jason C., [supra, 255 Conn. 570–71] our Supreme Court
stated that when accepting a plea agreement, due pro-
cess requires a court to advise a juvenile of possible
extensions to the delinquency commitment.’’ (Footnote
omitted; internal quotation marks omitted.) In re
Fabian A., supra, 106 Conn. App. 158–59. Furthermore,
the respondent cites Practice Book § 30a-4, which pro-
vides in relevant part: ‘‘To assure that any plea or admis-
sion is voluntary and knowingly made, the judicial
authority shall address the child or youth in age appro-
priate language to determine that the child or youth
substantially understands . . . (3) [t]he possible pen-
alty, including any extensions or modifications . . . .’’
In the present case, the court advised the respondent
that her adjudication as a delinquent meant that she
could be committed to DCF for a period not to exceed
four years, that the agreement was to commit her to
residential placement with DCF for eighteen months,
and that the eighteen month period could be extended.
The court further informed the respondent that she had
several rights with respect to a possible extension of
the commitment, including the right to object, the right
to request a hearing, and the right to be represented
by an attorney. As argued by the respondent, the court
did not discuss the possibility that she could subse-
quently be transferred from the custody of DCF to DOC.
As noted, due process does not require that the
respondent be advised of every possible consequence
of a plea. Instead, the respondent must be advised of
every possible direct consequence of a plea, such as
commitment to DCF and residential placement. Fur-
thermore, the failure to inform a juvenile of every possi-
ble indirect consequence of a plea does not render such
plea unknowing or involuntary. Here, the record amply
supports the conclusion that the court thoroughly
explained the direct consequences of the respondent’s
plea and gave her the opportunity to ask questions.
Transfer to DOC pursuant to § 17a-12 (a) is not a direct
consequence of the respondent’s delinquency adjudica-
tion. Rather, her adjudication as a delinquent placed
her in a category of juveniles who could be made subject
to the statute’s transfer provisions subject to the hap-
pening of events within her control and subsequent to
her plea. We believe that such a contingency is suffi-
ciently attenuated from the direct consequences of the
respondent’s plea and attendant adjudication that the
court has no constitutionally based obligation to can-
vass the juvenile as to the transfer statute’s potentiali-
ties. As a result, the respondent fails in her claim that
her plea was not knowing and voluntary.
IV
Having determined that the respondent’s due process
rights were violated on the ground that DCF failed to
prove, by clear and convincing evidence, its entitlement
to have the respondent transferred from its care to the
supervision of DOC pursuant to § 17a-12 (a), our inquiry
would normally turn to discerning the appropriate rem-
edy to re-enfranchise the juvenile with the rights she
was denied. In such a circumstance, this court would,
as a matter of course, remand the matter for a new
hearing with direction to afford the respondent the pro-
tections we have embedded in § 17a-12 (a) in order to
preserve its constitutionality. In this particular case,
however, because the respondent is back in the custody
of DCF and will reach the age of majority during this
calendar year, we are unable to provide her with any
practical relief from the court’s transfer order.
The judgment is reversed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
1
In making this assertion, the respondent apparently reasons that if her
plea to the delinquency charge was not knowing and voluntary, then she is
not properly in the custody of DCF as a juvenile delinquent and, therefore,
the transfer statute should not be applicable to her.
2
In general, the term ‘‘transgender female’’ refers to a person whose
assigned sex at birth was male but who identifies as female. See United States
Department of Justice, National Institute of Corrections, ‘‘Policy Review
and Development Guide: Lesbian, Gay, Bisexual, Transgender, and Intersex
Persons in Custodial Settings,’’ (August, 2013) p. 49, available at https://
s3.amazonaws.com/static.nicic.gov/Library/027507.pdf (last visited June 5,
2015) (copy contained in the file of this case in the Appellate Court
clerk’s office).
3
The record reveals that the respondent pleaded guilty to an underlying
charge of a violation of § 53a-167c, assault of public safety, emergency
medical, public transit or health care personnel.
4
DCF’s motion to transfer the respondent requested that she be sent to
Manson, which is an institution for young male offenders run by DOC.
Because the respondent identifies as a female and not as male, the court
ordered her transferred to Niantic, a correctional institution for female
offenders. Niantic is Connecticut’s only DOC institution for female offenders.
5
The respondent was transferred to the York Correctional Institution in
Niantic on April 8, 2014, and remained at that facility until June 24, 2014,
when she was transferred to the new secure female unit at the Solnit South
Facility, operated by DCF. Because the York Correctional Institution is
commonly referred to as Niantic, we shall use that term when referring to
the York Correctional Institution unless we are repeating verbatim what
has been stated elsewhere.
On July 13, 2014, the respondent was transferred back to the Connecticut
Juvenile Training School. On its home page, the training school is described
as a secure facility for boys adjudicated as delinquent and committed to
DCF. Additionally, we note the statutory mandate that: ‘‘On or after May
21, 2004, no female child committed to the Department of Children and
Families shall be placed in the Connecticut Juvenile Training School. . . .’’
General Statutes § 46b-140 (k). Nevertheless, the legality of the respondent’s
placement by DCF in a facility exclusively for males during this appeal has
not been raised as an issue for our consideration.
6
Two additional statutes are important to note, as they have the potential
to impact the placement of a delinquent juvenile once transferred pursuant
to § 17a-12 (a). The first, General Statutes § 18-87, pertains to the authority
of DOC to make an intra-department transfer and provides in relevant part:
‘‘The Commissioner of Correction may transfer any inmate of any of the
institutions of the Department of Correction to any other appropriate state
institution with the concurrence of the superintendent of such institution
or to the Department of Children and Families when the Commissioner of
Correction finds that the welfare or health of the inmate requires it. . . .’’
The second statute, General Statutes § 17a-13, pertains to DCF’s ability
to bring a delinquent juvenile back into its custody after the juvenile has
been transferred to DOC. Section 17a-13 provides: ‘‘Any person committed
to the Department of Children and Families who is transferred to the John
R. Manson Youth Institution, Cheshire, or the Connecticut Correctional
Institution, Niantic, pursuant to section 17a-12 shall be deemed, while so
transferred, to be under the jurisdiction of the Department of Correction
except that the Commissioner of Children and Families shall retain his
powers to remove such person and to place him in another facility or in
the community or to terminate the commitment. The jurisdiction of the
Department of Correction shall terminate upon the expiration of the commit-
ment as provided in subsection (a) of section 17a-8.’’
7
DCF qualifies its concession by suggesting that only the vagueness claim
is reviewable under the ‘‘capable of repetition, yet evading review’’ excep-
tion. Our review of whether the issues presented on appeal are moot is not
sculpted by the parties’ assertions or concessions.
8
To be sure, the term ‘‘dangerous,’’ without refinement, could be held to
encompass the behavior of a juvenile who, by such conduct, presents a
moral danger to other juveniles unaccompanied by any physical threat.
9
Although the statute, by plain language, could pertain to any juvenile
over fourteen years old who is in DCF custody, whether as a result of being
adjudicated as delinquent or through no fault of the juvenile, such as by
having been neglected or abandoned or having his or her parents’ rights
terminated, we need not discuss, in a vagueness as applied analysis, whether
the reach of the statute constitutionally extends beyond those committed
as a result of delinquency adjudications because the respondent herein was
committed as a delinquent.
10
The term ‘‘post-Gault’’ means cases decided after In re Gault, 387 U.S.
1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). In In re Gault, the United States
Supreme Court ruled that although a juvenile delinquency hearing need not
‘‘conform with all of the requirements of a criminal trial or even of the usual
administrative hearing, [such a] hearing must measure up to the essentials
of due process and fair treatment.’’ (Internal quotation marks omitted.)
Id., 30.
11
Indeed, the respondent’s claim for a jury trial may find some support
in our Supreme Court’s discussion of a transfer made under a predecessor
statute. In the matter of In re Appeal of Bailey, 158 Conn. 439, 262 A.2d
177 (1969), our Supreme Court responded to a certified question of whether
the statute that (then) permitted a transfer from the Connecticut School
for Boys to the Connecticut Reformatory was unconstitutional because it
allowed for the commitment of a person to a penal institution without first
having a criminal conviction. Part of the argument presented in In re Appeal
of Bailey was that the juvenile there had not been afforded a trial by jury.
Id., 443. In rejecting the juvenile’s claim, the court relied, primarily, on its
determination that the juvenile had not proven that the reformatory was a
penal institution. Id., 451.
In the case at hand, DCF cannot make such a claim. On its website, the
York Correctional Institution at Niantic defines itself as a ‘‘high-security
facility . . . the state’s only institution for female offenders.’’ State of Con-
necticut Department of Correction, ‘‘York Correctional Institution,’’ (last
modified February 25, 2015), available at http://www.ct.gov/doc/cwp/vie-
w.asp?q=265454 (last visited June 5, 2015) (copy contained in the file of
this case in the Appellate Court clerk’s office). The Manson Youth Institution
represents that it is ‘‘a level 4 high-security facility. It serves as the Depart-
ment’s primary location for housing sentenced inmates under the age of 21.’’
State of Connecticut Department of Correction, ‘‘Manson Youth Institution,’’
(last modified October 20, 2014), available at http://www.ct.gov/doc/cwp/
view.asp?a=1499&Q=265428&docNav=| (last visited June 5, 2015) (copy con-
tained in the file of this case in the Appellate Court clerk’s office). That both
Manson and Niantic are penal institutions cannot reasonably be challenged.
12
Although we need not elucidate the factors involved in determining the
juvenile’s best interest, they must include, at a minimum, a consideration
of the juvenile’s specific physical conditions of confinement; the extent to
which any programs of guidance and rehabilitation will be made available
to the juvenile while in DOC custody; and the individual needs and circum-
stances of the juvenile.