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

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

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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

In reAA P 2024 V1 3 S Ct Civ No 2020 0103 0108 Opinion of the Court 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)

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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

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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

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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

In reAA P 2024 V13 S Ct Civ No 2020 0l03’0108 Opinion of the Court 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

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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)

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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

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Footnotes

[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 ATTEST VERONICA J HANDY ESQ Clerk of c Court By Deputy Clerk I Dated h-| l (yo a/f‘