In re J.A.G.

NEWMAN, Chief Judge: The issue presented by this appeal is whether the Family Division of the Superi- or Court has the authority to order a specific placement for a delinquent juvenile who is on aftercare status, under the custody of the District of Columbia Department of Human Services (DHS), and to order the agency to pay the expenses of that placement. DHS appeals from such an order, which directs that J.A.G. be placed in a private school in Atlanta, Georgia. I conclude that, though the court properly specified a particular placement as part of its original disposition order, the court had no jurisdiction to order a second placement after the first placement was terminated and the juvenile placed on aftercare. Accordingly, the trial court’s order should be overturned.1 I On October 31, 1978, fifteen-year-old J.A.G. pled guilty to malicious destruction of property. He was placed on probation for one year. Shortly thereafter, he ran away from home to California. His parents then placed him in the Highland Hospital at Duke University, where he was to receive treatment for alcoholism. On May 4, 1979, however, he absconded from Highland, and returned to his parents’ house. He ran away from home again on May 25, and was arrested the next day in Maryland for carrying a concealed knife. Accordingly, on June 8, 1979, the court revoked J.A.G.’s probation and committed him to the custody of DHS. The court’s disposition order specified that J.A.G. was to be placed back at Highland Hospital, but was to be sent to St. Elizabeths until space became available at Highland. The court also directed that J.A.G. could be released on aftercare whenever, in DHS’s judgment, he was sufficiently rehabilitated. Four days later J.A.G. absconded from St. Elizabeths. He was returned to custody in mid-July, and then placed at Highland, where he remained until the following spring, with the exception of a one-month period in the fall in which he had run away. By the time this placement ended, J.A.G. had earned a high school equivalency certificate. On May 5,1980, the court issued an order “authorizing” DHS to release J.A.G. from Highland. (See note 5 infra.) Accordingly, DHS placed J.A.G. on aftercare status.2 He [15] spent the summer of 1980 as an out-patient at Highland, and worked as a camp counsel- or in Hendersonville, North Carolina. At the end of the summer, J.A.G. moved home and enrolled in Alcoholics Anonymous. He decided that he wanted to go to college.3 In order to do so, however, he needed further special education at the secondary level. (The record indicates that J.A.G. suffered from dyslexia as well as emotional problems.) His parents wanted him to attend Gables Academies in Atlanta, which was willing to accept J.A.G. On October 9, 1980, the Family Division held an ex parte “review of commitment” hearing,4 at which J.A.G.’s attorney sought to have DHS pay for the Gables placement. J.A.G.’s aftercare counselor maintained that DHS did not have the funds for such a placement; she had encouraged alternatives within the District of Columbia. Judge Washington ordered the placement on October 14. Meanwhile, on October 12, J.A.G.’s parents flew him to Atlanta to be enrolled at Gables. On October 20, DHS moved the court to rescind its order, arguing that this court’s decision in In re J.M.W., D.C.App., 411 A.2d 345 (1980), left the Family Division without jurisdiction to intervene and order a specific placement. Following a hearing on October 30, Judge Washington ordered DHS to pay J.A.G.’s tuition by November 5, in order to maintain the status quo, since Gables would not keep J.A.G. at the school unless his tuition was paid by that date. The court denied the agency’s motion on the merits, on November 3,1980.5 II When the trial court committed J.A.G. to the custody of DHS, on June 8, 1979, it specifically ordered that J.A.G. be placed at Highland Hospital. In doing so, the court properly acted within its scope of authority; the Family Division of the Superior Court does have the power to designate a particular placement as part of its initial disposition order. See D.C.Code 1973, § 16-2320(c)(1); D.C.Code 1978 Supp., § 16-2320(a)(5); In re J.J., D.C.App., 431 A.2d 587, 591 (1981). The court subsequently attempted to reassert jurisdiction over J.A.G. on two occasions. First, on May 5, 1980, it “modified” its earlier disposition order to “authorize” DHS to release J.A.G. from Highland.6 Second, on October 9, 1980, the court held an ex parte commitment “review” hearing, at which J.A.G. requested the placement at issue here. In the latter instance the court acted without jurisdiction. [16] In as here, the juvenile was on aftercare, which is analogous to parole. See In re J.M.W., supra at 348 — 49. The trial court in J.M.W. had intervened to revoke the juvenile’s aftercare status, and ordered him placed at Oak Hill. This court reversed, holding that once a juvenile is committed to the custody of DHS, the Family Division “relinquishe[s] its authority to determine the appropriate measures needed to insure rehabilitation.” Id. at 349. Once custody is transferred, the agency assumes “exclusive supervisory responsibility over the juvenile .... ” Id. The holding in J.M.W. is dispositive in this ease. The Family Division is without jurisdiction to modify a commitment order, as it attempted to do here, in the absence of a “specific legislative mandate.” Id. at 346.7 Nor can I find any “specific legislative mandate” that might otherwise legitimate the court’s order. Appellee has suggested several possible statutory provisions, none of which is applicable here. First, while the Family Division may retain a veto power over release, if specifically reserved at the time of the original disposition, the trial court did not do so here. See D.C.Code 1973, § 16-2322(a)(1); In re J.M.W., supra at 348 n.3. In fact, the trial court here did just the opposite; it specifically authorized DHS to release the juvenile whenever in the agency’s judgment he was sufficiently rehabilitated. Second, D.C.Code 1978 Supp., § 16-2320(a)(5) likewise fails to provide the necessary “legislative mandate.” Section 16-2320(a)(5)(i) permits the Family Division to “order any public agency of the District of Columbia to provide any service the Division determines is needed . ... ” This authority, however, exists only with respect to the initial disposition or commitment order. In re J.J., supra at 591 n.9. Thus it cannot serve as a justification for the orders in this case, which were attempted modifications of the original disposition, made approximately one year later. Third, appellee has urged that his motion to have DHS pay for the Gables placement be treated as a motion for modification of the commitment order, under D.C. Code 1978 Supp., § 16-2324(b)-(c). I cannot agree. Appellee’s motion was not brought pursuant to § 16-2324, nor could it have been. This section requires that the juvenile or his parents first request the agency to terminate its custody over the juvenile. Id. § 16-2324(b). Only if this application to the agency is denied or not acted upon within a reasonable time may the applicant move the court to intervene, on the ground that the child is no longer in need of commitment. Not only did J.A.G.’s parents not apply to DHS for a termination of custody, but there is no indication in the record that they ever wanted J.A.G. to be released from custody; they simply wanted DHS to pay for J.A.G.’s private education. Finally, I reject appellee’s contention that the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1232, 1401, 1405-1406, 1411-1420, 1453 (1976), provides authority for the court’s order. The Education Act guarantees each child a “free appropriate public education until age 21.” Id. § 1412(2)(B). But the “free” schooling sought by J.A.G.’s parents fails to qualify under the statute in several respects. First of all, it is not “public,” i.e., not “under public supervision and direction.” Id. § 1401(18)(A). Parents are [17] not entitled to simply choose any private school in the country and demand that their state of residence pick up the tab for their children. Second, this school is not located “in the State involved.” Id. § 1401(18)(C) (emphasis added). Third, the Gables placement may not be “secondary” education under the circumstances of this case, since J.A.G. had already attained his high school equivalency certificate. See id. § 1401(10) (“ ‘secondary school’ ... does not include any education provided beyond grade 12.”) Finally, the sole judicial remedy under the Education Act is a civil suit (in state or federal court), which may only be brought subsequent to an administrative hearing procedure before the local education agency. Id. § 1415. Thus, the Family Division was without jurisdiction under the Education Act. I do not dispute that the role of the District of Columbia in juvenile cases is one of parens patriae. See Kent v. United States, 383 U.S. 541, 554-56, 86 S.Ct. 1045, 1053-1054, 16 L.Ed.2d 84 (1966); Greek v. Stone, 126 U.S.App.D.C. 329, 332, 334, 379 F.2d 106, 109, 111 (1967). But simply to assert this premise does not answer the question as to which branch of government has the authority to act in the parens patri-ae role at each stage of the proceedings. See In re J.J., supra at 592-93; In re J.M.W., supra at 348-49. The statutory scheme clearly assigns to the agency the exclusive responsibility for supervising the rehabilitation of the juvenile, once the court has committed the juvenile to the custody of that agency. Id. at 349. Because no specific legislative mandate authorized the court to modify its disposition order in this case, the court had no jurisdiction to order another placement after custody of the juvenile had been committed to DHS. Reversed. Footnotes [1] Since Judge Ferren in his separate opinion also votes to reverse, that is the court’s disposition of this appeal. [2] Appellee asserted at oral argument that J.A.G. was not placed on aftercare when he was released from Highland. I can find nothing in the record, however, indicating that J.A. G.’s status upon release was anything other than aftercare. “Aftercare is a program ... under which juveniles who have been committed to its legal custody are placed back in the [15] community under the supervision of a trained social worker.” In re J.M.W., D.C.App., 411 A.2d 345, 346 (1980). Here, upon J.A.G’s release, he continued as an out-patient at Highland, while working as a counselor in a nearby camp. Moreover, the agency assigned an “aftercare counselor” to supervise his progress. Clearly, his status was indeed aftercare. Since a release to aftercare is a decision within the agency’s discretion, (and the court acknowledged as much in its disposition order of June 8, 1979), the court’s order of May 5, 1980, had no legal effect on J.A.G.’s status. [3] Originally, J.A.G. was to attend Blue Ridge Technical College in Hendersonville that fall. [4] J.A.G.’s aftercare counselor was present at the hearing, but DHS was not formally notified of the hearing, and was not represented by counsel. [5] The agency’s motion for a stay pending appeal was denied, as was its motion to deem the record remanded so that DHS could seek a contribution order pursuant to D.C.Code 1978 Supp., § 16-2325. Though J.A.G. is now over 18 years old and is no longer committed to the custody of DHS (and is no longer attending Gables), we conclude that this appeal has not been rendered moot. Were we to assume that a juvenile case could be mooted when the child attains the age of majority and leaves the custody of the agency, the issue here would be “capable of repetition, yet evading review.” See Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973); In re J.J., D.C.App., 431 A.2d 587, 589-90, n.6 (1981). [6] Since the court did not retain a veto power over release in its disposition order, see D.C.Code 1973, § 16-2322(a)(1); In re J.M.W., supra at 348 n.3, and indeed explicitly stated that DHS was authorized to release J.A.G. when in the agency’s judgment he had been rehabilitated, the May 5, 1980 order was not a modification at all but was legally redundant of the disposition order. [7] D.C.Code 1973, § 16-2303 is not to the contrary, for it merely provides that the Family Division retains jurisdiction until the juvenile reaches age 21 or jurisdiction is terminated, whichever occurs first. Here, as in In re J.M.W., supra, once the court transfers legal custody of a delinquent juvenile to DHS, the court divests itself of jurisdiction to supervise the juvenile’s rehabilitation. The court’s jurisdiction may, of course, be recreated or reasserted under certain limited circumstances. See, e.g., D.C.Code 1978 Supp., § 16-2324(b)-(c) (motion for modification or termination of the commitment order following application to the agency); D.C.Code 1973, § 16-2322(a)(l) (court may retain veto over release, in original disposition order); Super.Ct.Juv. R. 32(h) (review to enforce or implement disposition order). But for purposes of § 16-2303, jurisdiction is terminated upon a transfer of custody to the agency.