PEOPLE OF THE VIRGIN ISLANDS IN THE INTEREST OF: A.A.P., a minor

Opinions

Opinion

For Publication

IN THE SUPREME COURT OF THE VIRGIN ISLANDS

PEOPLE OF THE VIRGIN ISLANDS IN ) S Ct Civ No 2020 0103 THE INTEREST OF A A P , a Minor ) S Ct Civ No 2020 0108 ) Re Super Ct JD No 30’2019(STT) ) ) ) )

On Appeal from the Superior Court of the Virgin Islands Division of St Thomas & St John Superior Court Judge Hon Debra S Watlington

Considered June 8, 2021 Filed January 11 2024

Cite as 2024 V13

BEFORE RHYS S HODGE, Chief Justice, MARIA M CABRET, Associate Justice, and IVE ARLINGTON SWAN Associate Justice

APPEARANCES

Adam G Christian, Esq Ogletree Deakins, LLC St Thomas U S VI Attorney)?» Appellant

Michael R Francisco, Esq Assistant Attorney General St Thomas U S V I Attorneyfor Appellee

OPINION OF THE COURT

CABRET, Associate Justice

1

Opinion of the Court

Page 2 of [0

1| 1 A A P , a minor, appeals from a final order of the Family Division of the Superior Court

ending his probation, closing his case, and transferring him to the Department of Human Services

(“DHS”) for continued supervision The Superior Court denied A A P s motion for reconsideration

of the final order, which is also the subject of this appeal For the reasons that follow, we reverse

the Superior Court’s order

I FACTUAL AND PROCEDURAL BACKGROUND

1] 2 This case arises from a juvenile criminal complaint filed against A A P in the Superior

Court alleging that he participated in a fight on St Thomas (JA 53) The government charged

A A P with aiding and abetting one count of third degree assault, three counts of simple assault

one count of riot, and one count ofdisturbing the peace (JA 54) A A P accepted a plea agreement

pleading delinquent to one count of simple assault (JA 59) In return for his plea, the government

dropped all remaining charges, and recommended to the court that A A P complete six months of

probation, while abiding by certain conditions and requirements (JA 59, 76) The court

adjudicated A A P delinquent and required him to complete six months of probation (JA 63, 76

77)

1] 3 During the pendency of the probationary period, DHS notified the court that A A P had

consistently violated several terms of his probation (JA 19, 22, 45 46, 67, 109, 132 n 9) The

Superior Court then held several probation review hearings and conducted what would be the last

review hearing on June 30, 2020, where A A P s deficient performance regarding his probation

conditions was noted on the record with all parties present (JA 1 1) After the hearing, the Superior

Court ordered A A P s probation to be maintained for the original time period (until August 19,

2020) and again ordered that A A P comply with the original conditions of probation (JA 92 93)

On August 13, 2020, DHS provided the Superior Court with a review summary detailing A A P 's

2

Page 3 of 10 progress (JA 94) DHS found A A P to be deficient regarding several conditions of his probation

and recommended that his probation be extended (JA 94 98) On August 17, 2020, one day before

the originally scheduled final review hearing, the Superior Court sua sponte canceled the hearing,

ordered A A P 5 transfer to DHS for continued supervision, and prospectively ordered the case to

close on August 19 2020 (JA 109) On August 31 2020 A A P filed a motion to reconsider the

Superior Court’s order (JA 114) The court denied his motion to reconsider on October 9, 2020

(JA 130) A A P filed a timely notice of appeal from the Superior Court 3 August 17, 2020 final

order on September 17, 2020, (JA 2) and also filed a timely notice of appeal from the Superior

Court’s October 9, 2020 order denying reconsideration on October 28, 2020 (JA 1)

ll JURISDICTION AND STANDARD OF REVIEW

fl4 We have jurisdiction over all appeals arising from final judgments, final decrees, or final

orders of the Superior Court, or as otherwise provided by law Ledesma v Gov t ofthe V I , 2019

V I 31 1] 6, V I CODE ANN Tit 4 V I C §32(a) The Superior Court 8 orders transferring A A P

to DHS, closing the case, and denying reconsideration ended the litigation on the merits,

constituting a final judgment over which we have jurisdiction In re L 0 F , 62 V I 655, 659 (V I

2015)

11 5 Our Court exercises plenary review over the Superior Court 5 conclusions of law but

applies a clearly erroneous standard of review to its factual findings Brooks v Government ofthe

Vtrgm Islands 58 VI 417 422 (V I 2013) Generally, we review the Superior Court's decision

to grant or deny a motion for reconsideration for abuse of discretion, but when the trial court's

decision is based upon the application of a legal precept, our review is plenary ” Powell v FAM

Prat Servs Inc 72 V I 1029 1035 (V I 2020) (citation omitted)

3

Page 4 of 10

III DISCUSSION

‘6 A A P asserts that the Superior Court acted outside the scope of its statutory authority by

placing him under the continuing supervision of DHS, and that it also erred by denying his motion

for reconsideration of its final order (Appellant 3 Br at 9 10 15) And, in his reply brief, A A P

asserts that the People waived all the arguments in their response brief (Appellant’s Reply Br at

7 9)

A A A P ’5 Waiver Argument

'7 At the outset, A A P specifically argues that the People failed to assert the arguments in

their response brief before the Superior Court and maintains that the People 5 arguments are

therefore waived (Appellant 3 Reply Br at 1) This Court disagrees

'8 First, we note that A A P raises this argument within his reply brief, and ordinarily “[w]hen

an argument is raised for the first time on appeal in a reply brief that argument is deemed waived

because the appellee will not get an opportunity to respond to the argument ” In re Halley, 2020

V1 14 1] 20 n 7 (quoting Benjamin v AIG Ins Co ofPuerto RICO 56 V I 558 567 (V I 2012))

But an appellant generally may, in a reply brief, respond to arguments raised for the first time in

the appellee s brief United States v Powers 885 F 3d 728 732 (D C Cir 2018) (citation

omitted) See L01a v Mam St Acquzsmon Corp 906 F 3d 680 684 (7th Cir 2018) (same)

Because the People s arguments were raised for the first time in their appellate brief, this Court

will consider A A P ’s waiver argument (JA 123 125)

fi9 To support his contention that the People waived the arguments within their response brief,

A A P cites to Benjamin, 56 V I at 566, and St Thomas 8t John Bd ofElectzons v Dame], 49

V I 322 335 36 (V I 2007) (Appellant 3 Reply Br at I 2) Both cases however involve parties

in trial court proceedings waiving their arguments, rather than parties on appeal waiving their

4

Page 5 of 10

arguments Consequently Benjamin and Dame] are neither instructive nor persuasive in this

context In fact there are only a few cases that consider waiver rules for appellees ” Texas

Democratic Party v Abbott 978 F 3d 168 177 (5th Cir 2020) cert dented 141 S Ct 1124

(2021) T 10 Those few cases suggest that "the rules against considering an argument not properly

presented are more generous for an appellee than for an appellant ’ Id at 178 (citing United States

v Guzllen Cruz 853 F 3d 768 777 (5th Cir 2017)) The rationale behind this principle is that

‘[a]ppellees neither select the issues for the appeal nor file reply briefs, leaving them at a

disadvantage in being able to present all favorable arguments on appeal ” Id at 178 Consequently,

“as to waiver, the rules for appellants and appellees are not identical ” Id at 177 n 4

11 11 Therefore, generally, ‘an appellee 3 failure to raise an issue in the trial court does not

preclude him or her from asserting that issue on appeal as a ground for affirming the trial court ”

Unger v State 48 A 3d 242, 255 (Md 2012) Here the People are the Appellees and were merely

reSponding to A A P s arguments presented on appeal Therefore, the People 3 failure to preserve

arguments which they now raise on appeal is not dispositive See 1d (“[T]his Court has consistently

taken the position that an appellee is entitled to assert any ground adequately shown by the record

for upholding the trial court's decision, even if the ground was not raised in the trial court ”),

Marrero Plchardo v Ashcroft, 374 F 3d 46, 54 (2d Cir 2004) (The Second Circuit considered an

administrative exhaustion argtnnent despite “find[ing] it notable that the government failed to raise

the issue of administrative exhaustion below, and raises this defense for the first time on appeal ’ ),

Cf Abbott, 978 F 3d at 177 n4 (An appellant's failure to raise an issue in an initial appeal

constitutes a waiver of having the issue considered on remand, not so for the appellee ”) (internal

citations omitted); Guzllen Cruz, 853 F 3d at 777 (“Whether we will consider an unpreserved

5

Page 6 of 10

argument is a matter of discretion[, a]lthough we construe this rule more leniently when the party

who fails to brief an issue is the appellee ’ ) (citation omitted) ' For the above reasons, this Court

will consider the People 5 arguments

B The Superior Court’s Placement of A A P Under the Continuing Supervision of DHS

fi 12 A A P argues that the Superior Court improperly placed him under unauthorized

administrative probation without statutory authority (Appellant’s Br at 10) This Conn agrees

11 13 In the context ofjuvenile cases the United States Supreme Court has noted that “minority

‘is a time and condition of life when a person may be most susceptible to influence and to

psychological damage Schall v Martm 467 U S 253 266 (1984) (quoting Eddmgs v

Oklahoma 455 I S 104, 115 (1982)) This is because “juveniles ofien lack the experience,

perspective, and judgment to recognize and avoid choices that could be detrimental to them ’” Id

(quoting Bellow v Bazrd, 443 L S 622 635 (1979)) Consequently, juvenile courts "function in a

unique manner ’ McKezver v Pennsylvania, 403 U S 528 547 (1971) Their objective is not to

convict or punish, but to rehabilitate a youthful offender Gov't ofthe V] v Brodhurst, 5 V I 306,

312 (V I Mun Ct 1966) See 5 V I C §2501(c) ( The policy for children who commit delinquent

acts is a balance between treatment and sanctions ) Additionally, the best interests of the child

standard applies when making decisions regarding the child In re L 0 F , 62 V I at 665

11 14 With that in mind extreme care must be taken to ensure that courts, particularly those in

juvenile cases, only exercise powers that have been conferred upon them by statute State ex rel

1 Further, “in contrast to an appellant's failure to raise an argument which would constitute a waiver of that argument, ‘the answering party's dereliction could not constitute [such] a [traditional] waiver because, in the final analysis, it is for the Court to evaluate the issues presented by the appellant ”’ Patterson v United States, 597 Fed Appx 671, 673 (3d Cir 2015) (quoting Leslie v Attorney Gen ofthe US 611 F 3d 171 174 n 2 (3d Cir 2010)) That is to say even when an appellee fails to file a brief or ‘waives” an argument, the Court is still “obligated to consider the appeal on the merits and [instead] ‘proceed[s] without the benefit of an appellee's brief Id (quoting Torzsky v Schwelker 446 F 3d 438 442 (3d Cir 2006)) See e g Woodrup v Govt ofthe V l 2022 V] l The issue is not necessarily conceded in favor of the appellant

6

Page 7 of 10 Reynolds v Kirby No 2022 0630 2023 WL 2529808 at *3 (Ohio March 16 2023) Accordingly

“[u]nless there is a substantial compliance with the statutory requirements in these cases, the orders

of the juvenile court will be reversed ” Juvemle Court ofShelby Cty v State, 201 S W 771, 773

(Tenn 1918) See also State ex rel Price v Childers No E2011 00457 COA R3 JV 2012 WL

20005 at *5 7 (Tenn Ct App Jan 5 2012) (unpublished) (holding that the trial court exceeded

its statutory authority in juvenile matters which warranted reversal)

11 15 Here, A A P pleaded delinquent to simple assault and the Superior Court adjudicated him

delinquent and ordered him to complete six months of probation with various conditions (JA 59,

63, 79) Under 5 V I C § 2521 the Superior Court had authority to order A A P to enter probation

and to follow certain conditions once it adjudicated him delinquent 5 V I C § 2521(b) However,

once the disposition of probation with conditions was made, 5 V I C § 2524, titled “Probation”

and § 2525, titled Probation revocation , disposition” governed the appropriate procedures for this

case

fi 16 The Superior Court found that A A P appeared unable to satisfactorily fulfill the terms of

his probation, and therefore it sua sponte canceled A A P ’5 final review hearing, transferred him

to DHS for continued supervision, and closed the case (JA 109 110) In doing so, the Superior

Court did not cite any statutory or legal authority in its final order Under § 2524 the Superior

Court could terminate probation and discharge the child at any time if warranted by the conduct of

the child and the ends of justice 5 V I C § 2524(a) However, in this case the Superior Court

discharged A A P 's probation and transferred him to DHS for an indeterminate period of

continued supervision The discharge under §2524 does not contemplate a transfer to DHS for

continued supervision, or indeed any type of continued supervision, and therefore this section

could not provide a legal basis for the Superior Court s order

7

Page 8 of IO

11 17 Under § 2525 a child on probation incident to being adjudicated delinquent, who violates

a term of their probation may be proceeded against in a probation revocation hearing 5 V I C §

2525(a) Under this section the Superior Court may extend the period of probation or make any

other order of disposition specified in th[e] subchapter of a child adjudicated delinquent ” 5 V I C

§ 25256) See V I R FAM P 37(g) (the court may revoke, modify, terminate, or continue

probation, or order any other disposition authorized by law) However, none of the procedures

specified in § 2525 were followed in this case

' 18 The Superior Court may only begin such a revocation proceeding once the Department of

Justice ( DOJ’) has initiated it by filing a complaint which states the grounds for revocation 5

V I C §2525(b) V I R FAM P 37(0) (d) The Superior Court is also required to conduct a hearing

regarding any alleged violations before extending, revoking, modifying, or making any other

disposition with respect to the child s probation 5 V I C § 2525(d) At the hearing, the government

must prove any probation violation by clear and convincing evidence, and the child must be

afforded certain due process protections, such as the right of confrontation, and the right to be

represented by counsel, as well as a right to cross examine witnesses, and to be heard 5 V I C §

2525(e), V I R FAM P 37(f) However, the DOJ did not file a revocation complaint in this case,

the Superior Court did not hold a hearing, and A A P did not receive his accompanying due

process rights As explained above, there is no statute or case precedent which permits the Superior

Court to take the actions that it did in this case Therefore, the Superior Court erred, and we must

vacate its order transferring A A P to DHS

1l 19 Like the Supreme Court of the United States, ‘[w]e recognize that juvenile courts, perhaps

even more than most courts, suffer from the problems created by spiraling caseloads

unaccompanied by enlarged resources and manpower ” Breed v Jones, 421 U S 519, 537 (1975)

8

Page 9 of 10

Further, the subject matter ofjuvenile and family courts is a parade of pain in many cases, adding

to the difficulties those judges face However, the Superior Court must follow our governing

statutes and the child s best interests standard in these cases to promote the welfare of the Virgin

Islands’ youth Consequently, we must vacate the final order of the Superior Court, and remand

for the court to conduct fimher proceedings in accordance with this opinion and 5 V I C §§ 2524

and 2525 2

IV CONCLUSION

1[ 20 By sua sponte canceling A A P 3 final review hearing, transferring him to DHS for

continued supervision, and closing the case, the Superior Court erred The Superior Court acted

outside the scope of its statutory authority granted under 5 V I C §§ 2524 and 2525 On remand

the Superior Court must either terminate A A P s probation under § 2524, or follow the procedures

set forth in § 2525 to extend, modify, revoke, or otherwise dispose of A A P 's probation, should

the DO] file a motion to revoke probation under that section The order of the Superior Court is

vacated, and this matter is remanded for flirther proceedings

Dated this 11th day of January, 2024

BY THE COURT

( ARIA M OABRlCEI if Associate Justice

/7 / a

2 Because we vacate the Superior Court 5 final order, A A P s assignment of error to the Superior Court 5 denial of his motion to reconsider its final order is moot, and this Court need not address that argument In re L 0 F , 62 V I at 659 n 5

9

Page 10 of 10

ATTEST

VERONICA J HANDY ESQ Clerk of c Court

By Deputy Clerk I

Dated h-| l (yo a/f‘

10