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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17

- FS

- 1106
I N RE K.G. , A PPELLANT
.

Appeal from the Superior Court of the District of Columbia (DEL

- 440

- 17 ) (Hon. Jennifer M. Anderson, Tr ial Judge) (Argued October 7, 2017 Decided February 15, 2018 )
Terrence Austin , Public Defender Service, with whom Samia Fam , Jaclyn S. Frankfurt , and Stephanie Schneider , Public Defender Service, were on the brief for appellant. John W. Donovan , Assistant Attorney General, with whom Karl Racine , Attorney Genera l for the District of Columbia, Todd S. Kim , Solicitor General at the time the brief was filed , and Rosalyn C. Groce , Deputy Solicitor General, were on the brief for appellee.
Before B ECKWITH and E ASTERLY , Associate Judges , and R UIZ , Senior Judge

.

E ASTERLY , Associate Judge : Under our juvenile delinquency system, the District of Columbia recognizes that children, because of their cognitive and emotional immaturity, should not be treated like adults. This differentiation2

applies across the board to all decisi ons made in the life of a juvenile delinquency case, including a detention decision under D.C. Code § § 16

- 2310 and

- 2312 ( 2017 Supp. ), the subject s of this opinion. 1 Under D.C. Code § 16

- 2310 , the default prior
to fina l disp osition is not to detain children alleged or ev en proven to have committed delinquent acts

. I nstead , the statute favors keep ing children with their
families and communities as the y receive beneficial rehabilitative services

. Recent amendments to the detention statute have only reinforced that d etenti on is a last resort, authorized only (1) if, after an assessment of the individual child and the particular circumstances, the trial court concludes detention is either required ― to protect the person or property of others from significant harm‖ or necessary ―to

secure the child‘s presence‖ in court, or (2) as a narrow exception to (1) , if a child alleged to ha ve committed a ―dangerous crime‖

— limited to specified gun
crime s

— fails to demonstrate detention is not warranted

. D.C. Code § 16

- 2310 (a)

.

In this case, t he information presented to the trial court

— the fact of K.G.‘s
new arrest for commission of another drug offense while his juvenile case was pending and his failure to comply with some conditions of his release

— was legally

1 In the context of Title 16, ―detention‖ is defined as ―the temporary, secure custody of a child in facilities, designated by the Division, pending a final disposition of a petition,‖ and does not encompass placement in other types of facilities, such as shelter care. D.C. Code § 16

- 2301 (13) ( 2017 Supp. ).3

insufficient to su stain the trial court‘s determination that the detention of K.G. was ―required to protect the person or property of others from significant harm.‖ D.C. Code § 16

- 2310 (a)(1)

. K.G. took an interlocutory appeal pursuant to D.C. Code § 16

- 2328 ( 2013 Repl. ), and this court issued an order, within the requisite statutory timeframe, see infra note 33 , reversing the trial court‘ s decision

. See Appendix. We now explain our reasoning.

I. Facts and Procedural History

On April 22, 2017, the District charged K.G., then seventeen , with one count of possession of a controlled substance (cocaine) with intent to distribute, and one count of possession of a controlled substance (cocaine). 2 K.G. initially remained in his grandmother ‘s care but was later placed in shelter care , i.e., a physically unrestricted facility , D.C. Code § 16

- 2301 (14) (defining shelter care)

. 3 After entering a plea of involvement to one count of possession of cocaine, K.G. was returned to t he custody of his grandmother, pending disposition.

2 D.C. Code § 48

- 904.01 (a)(1) (2013 Repl.). 3 The record does not reflect the reason for this placement.4

K.G. returned to court on October 3 for his disposition al hearing , but his hearing did not go forward. Instead, K.G.‘s probation officer reported to the trial

court that K.G. had been arrested on August 30, 2017, and , because he was now eighteen , had been charged as an adult with two counts of distribution of a controlled substance (cocaine) and one count of possession of a controlled substance (cocaine) with intent to distribute. 4 The trial court in th e adult case had released K.G. to the community , where he had apparently resided without further
incident . But now, almost five weeks later, the Office of the Attorney General (OAG), litigating this case on behalf of the District government , asked the trial court in his juvenile case t o remove K.G. from the community and place him at the
Youth Services Center (YSC) , a secured facility. 5

Counsel for K.G. opposed the government‘s request and argued that detention was not justified under the juvenile detention statute as recently revised

. Counsel emphasized that there was ― no indication that [K.G.] was armed, or used any weapons, or harmed anyone physically

. ‖ Counsel represented that K.G. had ―been responding to his supervision‖ in the adult case and had been attending

4 See supra note 2

. 5 K.G. remain ed a ―child‖ for purposes of this case because it concern ed a delinquent act committed before he turned eighteen . D.C. Code § 16

- 2301 (3).5

school , and argued that if the trial court were concerned about K.G., ― [ s ] helter [ h ] ouse placement would be the least restrictive alternative appropriat e‖ under the
circumstances.
The trial court granted the OAG‘s detention request. A s the basis for its decision, the court relied on D.C. Code § 16

- 2310 (a) (1) (authorizing detention

― prior to a factfinding hearing or a dispositional hearing ‖ if it is ―required to protect the person or property of others from significant harm‖ ) and determined that K.G.

was ― a significant danger to others .‖ The court‘s reasoning for this determination
was twofold.

The court first focused on the nature of K.G. ‘s n ew adult charges, specifically the fact that ― there‘s been probable cause to believe that [ K.G. is] selling cocaine, which is .

. . dangerous.‖ The court noted that ―the City Council believes [distribution of cocaine is] a dangerous crime; and so, I do think it‘s .

. . significant risk of harm to others

– I mean, cocaine is dangerous and .

. . that‘s
what the statute [ 6 ] says.‖ T he court further observed that ―to me selling drugs is .

. . dangerous .

. . . [I]t does have the risk of substantial h arm . ‖

6 The trial court seemingly was referring to the adult detention statute , D.C. Code § 23

- 1331 (3) (2013 Repl.) (defining ―dangerous crimes‖ ―[a]s used in this subchapter‖).6

The c ourt also focused on K.G.‘s recidivism and general noncompliance with supervision. The court expressed concern that ―peop le can‘t supervis [ e ] [K.G.] ,‖ as evidenced by his new arrest for charges similar to those that had initiated his juvenile case. The court also noted K.G.‘s noncompliance with his curfew, his failure to enroll in drug treatment, and his failure to complete computer training. 7 The court agreed that, by themselves, K.G

. ‘s technical violations did not warrant detention (although, the court noted, they would justify K.G.‘s placement in a shelter house). But the court stated, ―when you look at the whole
combin ation,‖ along with his prior history on release and his new adult charges, ―I do believe he‘s a danger to the community.‖

To memorializ e its decision , t he court issued a standardize d form ―Order for Detention Pending Further Division Action

. ‖ The court checked two boxes on the form indicating that it had determined that detention was required ―to protect the person of others .

. . based on .

. . the nature and circumstances of the pending charge‖ and ―to protect the respondent‘s own person.‖ 8 After the issuance of the

7 The court later noted that K.G. had tested positive for cocaine at his lock up test on the adult charges. K.G. had also tested positive for illegal drugs earlier in the life of the juvenile case.

8 As explained below, neither of these reasons is an a uthorized basis for detention set forth in D.C. Code § 16

- 2310. See infra II.A.7

court‘s order, counsel filed both a notice of appeal pursuant to D.C. Code § 16

- 2328 (a), which requires a juvenile to no te an appeal from a detention order within two days , and a motion for reconsideration. 9 The trial court denied the motion for
reconsideration after the parties filed pleadings with this court but before this court heard oral argument

. 10

II. The Detention Decision

A. The Evolution of the Juvenile Detention Statute

By creating a juvenile justice system distinct from the adult criminal justice system , Congress communicated its objective to treat children who are alleged to

9 In making its detention decision, the trial court invited defense counsel to file a motion to reconsider to present any additional authority that would clarify the new juv enile detention statute‘s meaning , acknowledging that ―these are all kind of uncharted areas.‖

10 We appreciate the trial court‘s quick issuance of its order denying reconsideration to assist us in understanding its reasoning. While technically n ot part of our record on appeal, the trial court ‘s order made clear that (1) it had not applied the presumption in favor of detention under D.C. Code § 16

- 2310 (a

- 1), which it acknowledged was inapplicable to K.G.; (2) its detention decision was not based solely on its determination that distribution of cocaine , his newly charged offense, is a dangerous crime ; and (3) it reached the decision ― that detention is required to protect the person or property of others from significant harm‖ pursuant to D.C. Code § 16

- 2310 (a)(1) based on its assessment of ―all th e circumstances of this case.‖8

have committed crimes differently from their adult counterparts

. With the passage
of D.C. Code § 16

- 2301.02 , t he Council of the District of Columbia subsequently
memorialize d its ―purpose

. . . to create a juvenile justice system .

. . that will treat
children as children in all phases of their involvement , while protecting the needs
of communities and victims alike.‖ (emphasis added). This ―purpose‖ provision

set s forth a number of ―goals .

. . for delinquency cases,‖ which , in addition to reaffirming a commitment to due process protections , 11 convey a desire to support children in the community, to support their families, and to pursue rehabilitation, not punishment, ―with the goal of creating productive citizens.‖ 12 Section 16

- 2301.02 also establishes goals of holding ―child [ ren ] found to be delinquent
accountable for [their] actions, taking into considerat ion the child [ren] ‘s age, education, mental and physical condition, background, and all other relevant

11 See D.C. Code § 16

- 2301.02 (1) (goal ―[t]o provide due process through which juveniles and all other interested parties are assured fair hearings, during which applicabl e constitutional and other legal rights are recognized and enforced‖).

12 See D.C. Code § 16

- 2301.02 (2) (goal ―[t]o promote youth development and prevent delinquency through early intervention, diversion, and community

based alternatives‖); § 16

- 2301.02 (3) (goal ―[t]o preserve and strengthen families whenever possible

. . . .‖); § 16

- 2301.02 ( 5 ) (goal ―[t]o place a premium on the rehabilitation of children with the goal of creating productive citizens and to recognize that rehabilitation of children is inextricably connected to the well

- being and strength of their families‖); § 16

- 2301.02 (6) (goal ―[t]o serve children in their own neighborhood and communities whenever possible‖); § 16

- 2301.02 (7) (goal ―[t]o hold the government accountable for the provi sion of reasonable rehabilitative services‖).9

factors‖ 13 and ―provid [ ing ] for the safety of the public

. ‖ 14 Lastly , the statute seeks

to ―achiev e the foregoing goals in the least restrictive settings necessary, with a preference at all times for the preservation of the family and the integration of parental, guardian, or custodial accountability and participation in treatment and counseling program s.‖ 15

Because the goals of § 16

- 2301.02 expressly appl y to ― all phases‖ of a juvenile delinquency case, other statutory provisions addressing juvenile detention
before a factfinding hearing or a dispositional hearing

— D.C. Code § 16

- 2310 (setting forth the criteria for detaining children alleged to be delinquent ) and D.C. Code § 16

- 2312 (setting forth the procedures for detaining children alleged to be delinquent )

— must be read and applied with the purpose and goals of § 16

- 2301.02
in mind.

Section 16

- 2310 recognizes a default rule that children alleged to be delinquent should not be detained before final disposition of their juvenile case

. It provides that ―[a] child [alleged to be delinquent] shall not be placed in detention

13 D.C. Code § 16

- 2301.02 (4)

. 14 D.C. Code § 16

- 2301.02 (8)

. 15 D.C. Code § 16

- 2301.02 (9) (emphasis added)

.10

prior to a factfinding hearing 16 or a dispositional hearing 17

. . . unless it appears
from available informa tion that detention is required‖ either ―(1) to protect the person or property of others from significant harm, or (2) to secure the child ‘ s presence at the next court hearing. ‖ D.C. Code § 16

- 2310 (a). The default against placi ng a child alleged to be delinquent in detention prior to a disposition al hearing is subje ct to a limited exception under § 16

- 2310 (a

- 1) (1) which creates ―a rebuttable presumption that detention is required to protect the person or property of others if the judicial officer finds by a substantial probability that the child ‖ either ― (A) Committed a dangerous crime or a crime of violence while armed with or having readily available a pistol, firearm, or imitation firearm ‖ or ― (B) Committed CPWL, carrying a pistol without a license. ‖ Notably, § 16

- 2310 (a

- 1) employs the definitions of ―dangerous crime‖ and ―crime of violence‖ in the adult
detention statute 18 but carves out a number of offenses, including ―[a]ny felony offense under Chapter 9 of Title 48 (Controlled Substances).‖ D.C. Code § 16

- 2310 (a

- 1)(2)(B).

16 D.C. Code § 16

- 2301 (16) (defining a ―factfinding hearing‖ as ―a hearing to determine whether the allegations of a petition are true‖)

.

17 D.C. Code § 16

- 2301 (17) (defining a ―dispositional hearing‖ in relevant part as ―a hearing, after a finding of fact, to determine [ ] whether the child in a delinquency or need of supervision case is in need of care or rehabilitation and, if so, what order of disposition should be made‖).

18 D.C. Code § 23

- 1331.11

C urrent restrictions on the placement of juveniles in detention prior to a delinquency disposition are the product of successive amendments to § 16

- 2310
that promote keeping children in the community and out of a jail

- like setting

. 19 With the passage of the Comprehensive Youth Justice Amendment Act of 2016 (CYJAA) , 20 language in § 16

- 2310 (a)(1) that had permitted detention of a child alleged to be delinquent ―to protect the person or property

. . . of the child‖ was deleted, in recognition that placing a child in a jail

- like setting for his own protection was inappropriate and potentially dangerous. 21 Additionally, the provision in § 16

- 2310 (a)(1) that had permitted detention of a child alleged to be delinquent if ―required to protect the person or property of others‖ was further constricted to compel a showing that detention was required to protect the person or property of others from significant harm .‖ (e mphasis added). 22

19 We highlight, however, that neither the standardized form order used by the trial court nor the juvenile court rules reflect the amendments to the juvenile detention statute. See supra note 8. Both are in need of updating. 20 D.C. Law 21

- 238, 64 D.C. Reg. 3959 (eff ective Apr. 4, 2017). 21 D.C. Council, Report on Bill 21

- 0683 at 9 (Oct. 5, 2016) (explain ing that ―[p]otential victims of crime should not be securely detained against their will, particularly when there is a risk of harm within the secure facility,‖ and that ―where there is a risk that a child may harm [him ]sel[f], medical intervention is the appropriat e response, as secure detention may in fact exacerbate the problem‖)

. 22 The CYJAA also deleted language in D.C. Code § 16

- 2310 (a) that had authorized pre

- disposition detention of juveniles who were alleged to be ―in need (continued ....)12

Similarly, the 2007 amendment of the detention statute that creat ed the presumption in favor of detention if there is a substantial probability that a child
committed an offense involving a firearm , see D.C. Code § 16

- 2310 (a

- 1), 23 also signal ed a desire to minimize juv enile detention pre

- disposition

. The Council could have replicated the analogous provision for adult detention decisions , which creates a rebuttable presumption authorizing detention in a broader array of circumstances, in cluding when an adult has committed a felony drug crime while
on release in another case

. C ompare D.C. Code § 16

- 2310 (a

- 1) with D.C. Code § 23

- 1322 (c) (2017 Supp. ) . And indeed the Council d id just that in emergency legislation that was in effect for three months in 2006

. 24 But the Council ultimately did not make the provisions of the emergency legislation permanent

. I nstead , the Council opted for the much more restrictive presumption limited to crimes involving firearms , and in all other cases it continued to require a showing (....continued) of supervision,‖ but, to date, that amendment appears not be effective. D.C. Law 21

- 238 § 701 (a). 23 D.C. Law 16

- 308 § 2, 54 D.C. Reg. 942 (effective May 5, 2007). 24 See Enhanced Crime Prevention and Abatement Emergency Amendment Act of 2006, D.C. Act 16

- 446, 53 D.C. Reg. 6477 ( effective July 21, 2006, exp. Oct. 19, 2006). The presumption in favor of detention under this emergency legislation effectively ado pted for juveniles the presumption in favor of detention for adults under D.C. Code §§ 23

- 1322 (c)(1), (3)

- (7). See 53 D.C. Reg. 6477 § 302 (effective Jul. 21, 2006, exp. Oct. 19, 2006).13

that the criteria for detention under § 16

- 2310 (a) were satisfied. 25 See supra note 23.

These revisions to the juvenile detention statute are in keeping with and
were in part inspired by ― [ r ] ecent research .

. . on the development of the brain during adolescence, ‖ which indicates that d etaining children for poor
decision making to punish or educate them is simply ineffective and may be counterproductive. Council Comm. on the Judiciary, Report on Bill 21

- 0683 , at 3 (Oct. 5, 2016)

. As the Committee on the Judiciary acknowledged in its 2016 Report , research has demonstrated that the frontal lobes of the

brain, which control executive functions like ― planning, working memory, and impulse control ‖ are one of the last areas of the brain to develop and may not be fully dev eloped until the mid

- twenties

. . . . As a result adolescents have a more difficult time grasping long

- term consequences and are more likely to have impaired judgment

— both of which are factors in determining criminal culpability and the proportionality of punishment.

25 See D.C. Council Comm. on the Judiciary, Report on Bill 16

- 895 at 2 (Nov. 20, 2006) (observing that creation of a rebuttable presumption of detention for certain offenses ―express[es] a policy statement by the Council that certain criminal activity is extremely dangerous . . . and will not be condoned,‖ nevertheless a cknowledging ―the focus of juvenile court is rehabilitation,‖ and

— for that reason and in contrast to the rebuttable presumption of detention for adults and the emergency legislation passed earlier in the year

— limiting the rebuttable presumption of detentio n for juveniles to ―crimes involving firearms‖).14

Id . at 3. Moreover, detention of juveniles ―can actually increase recidivism [and] pull youth deeper into the justice system.‖ Id . at 9. With the recognition that

― [ a ] dolescents are not simply young adults , ‖ the Council has endorsed ―a different approach ‖ toward the administration of juvenile justice ― that recognizes both [juveniles ‘ ] reduced culpability and the ir capacity for rehab ilitation and growth. ‖
Id . at 4

.

B. Analysis of the Trial Court’s Rationale for Detaining K.G.

The trial court ruled that K.G. should be detained because the government
had carried its burden under D.C. Code § 16

- 2310 (a) to rebut the presumption against detention of a juvenile prior to a factfi nding or dispositional hearing. It is undisputed that because the trial court issued another interim order of detention (in lieu of proceeding with K.G.‘s dispositional hearing pursuant to D.C. Code § 16

- 2320), its detention decision had to be authorized under D.C. Code § 16

- 2310. The only question is whether the evidence supported the court‘s decision under D.C. Code § 16

- 2310 (a) (1) that K.G.‘s detention was ―required . . . to protect the person15

or property of ot hers from significant harm

. ‖ 26 Reviewing the sufficiency of the evidence and the embedded statutory interpretation issues de novo, 27 w e determine
that the record does not support a conclusion that K.G. should be detained

.
We begin our analysis, as we must, with the plain language of D.C. Code § 16

- 2310 (a). Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2 d 751, 753 (D.C. 1983) (en banc). T he language of § 16

- 2310 (a) authorizing detention if it is ―required to protect the person or property of others from significant harm‖ has only ―superficial clarity. ‖ Id . at 754. It plainly conveys a goal of promoting public safety but provides little guidance as to the limits of a trial court‘s detention

a u thority. See Dolan v. U.S. Postal Serv. , 546 U.S. 481, 486 (2006) (― A word in a statute may or may not extend to t he outer limits of its definitional possibilities

. ‖ )

. In particular, it does not define the source or type of ― significant harm‖ that would render detention ―required.‖ Thus we look beyond the text of this phrase and place
it in the con text of the statute as a whole, its legislative history, and its animating
purpose. See Washington v. District of Columbia, 137 A.3d 170, 174 (D.C. 2016) ( ―in expounding a statute, we must

. . . look to the provisions of the whole law ,

26 D.C. Code § 16

- 2310 (a)(2) alternatively authorizes detention ―to secure a child‘s presence at the next court hearing .‖ No concerns were ever raised in this case about the need to ensure K .G.‘s appearan ce in cou rt.
27 Campbell v. United States , 163 A.3d 790, 794 (D.C. 2017).16

and to its object and policy‖); District of Columbia v. Place , 892 A.2d 1108, 1111 (D.C. 2006) (― Statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. ‖); Hively v. D istrict of Columbia Dep ’ t of Emp’ t Servs. , 681 A.2d 1158, 1161 (D.C. 1996) (― Ambiguous [statutory] provisions are to be  ̳ construed with ref erence to the statute‘ s manifest purpose. ‘ ‖ )

.

Considering these factors, we interpret D.C. Code § 16

- 2310 (a) to require proof that a juvenile‘s particular behavior could cause direct , ―significant harm‖ to ―the person or property‖ of a particular individual (or individuals)

. We ground our analysis in the legislative purpose to minimize the detention of children, see supra II.A., and the express statutory mandate that a child ―shall not‖ be placed in detention ―unless‖ there is ―information‖ that satisfies the strictures of the statute ;

w e also contrast section (a) with section (a

- 1) , which authorizes a presumption and
thus to some extent relieves the government from having to mak e a case - specific showing that detention is required. 28 We further rely on the statutory directive that
the particular ―information‖ presented by the government be proof that detention

—

28 Cf. Blackson v. United States , 897 A.2d 187, 194

- 95 (D.C. 2006) (acknowledging that the government bears the burden of proof in adult detention proceedings).17

again, generally disfavored for juveniles

— i s ―required ‖ to advance the public safety goal of the statute

. As discussed, proof that a juvenile has committed an
offense w ith a firearm

— a weapon that can cause direct , physical ―significant
harm ‖

— is sufficient information to justify a presumption of detention. We
conclude that other case - specific information that similarly demonstrates that an individual juvenile (albeit wit hout a firearm) presents a threat of direct, ―significant‖ harm to the person or property of others is necessary to satisfy the

s tri ctures of § 16

- 2310 (a) and ensures that detention is used only as a last resort. 29

Applying this standard to this case, reversal of the detention decision was compelled. No particularized evidence of direct harm to the person or property of
others

— or potential for such harm

— was presented

. T he government did not present any evidence as to the particulars of K.G.‘s alleged new drug activity in the
adult case. The Gerstein 30 affidavit from his arrest indicates only that he was selling drugs to consenting adults in a public park. Thus , there is no indication in
the record , for example, that K.G. was armed, that he threatened anyone with

29 What quantum of harm amounts to ―significant harm‖ under D.C. Code § 16

- 2310 (a) is another question, but we do not address it in this case because we conclude that the government failed to establish that K.G. engaged in or posed a serious risk of the kind of h arm

— direct, physical harm

— envisioned by the juvenile detention statute. See infra

.

30 See Gerstein v. Pugh , 420 U.S. 103 (1975).18

physical harm, or that he actually engaged in any behavior that might cause direct harm to the person or property of others

.

To reach its conclusion that K.G. s hould be detained, the trial court relied on K.G.‘s rearrest as an adult on ―dangerous‖ drug charges

. The court also relied on K.G.‘s recidivism while on supervision and failure to comply with some of his
conditions of release

. None of these considerations supported K.G.‘s detention
under D.C. Code § 16

- 2310 (a).

T he fact that K.G. faced new charges in adult court for drug crimes which are categorized as ―dangerous‖ under the adult detention statute d id not itself justify K.G.‘s detention under the juvenile detention statute. A term of art,

― d angerous crimes‖ is defined in D.C. Code § 23

- 1331 (3) to include a range of
offenses

— some that may cause direct physical harm to others ( e.g., some gun offenses, arson, robbe ry ) and others that may not (e.g., prostitution, pandering, attempted burglary ). T his definition is expressly limited to adult detention decisions, D.C. Code § 23

- 1331 (3) (defining dangerous crime ―as used in this subchapter‖); D.C. Code § 23

- 1322 (c) (employing definition of ―dangerous crime‖ under § 23

- 1331 (3) in its rebuttable presumption authorizing detention of adults)

. While the juvenile detention statute borrows in part the meaning of19

―dangerous crimes‖ and ―crimes of violence‖ in § 23

- 1331, it does so selectively , and it expressly excludes a number of crimes that are so categorized under the
adult statute , including felony controlled substance offenses under Chapter 9 of Title 48. D.C. Code § 16

- 2310 (a

- 1). 31 In light of the expres s desire to treat juvenile detention decisions differently, the designation of drug crimes as dangerous in the adult detention scheme is not controlling under the juvenile
detention statute.

T he fact that selling drugs (here cocaine) may be considered in a colloquial

sense ―dangerous‖ to our society is irrelevant for the purposes of the juvenile
detention statute

. The illegal sale and consumption of controlled substances undoubtedly ha s adverse societal effects ; as a result of drug abuse and addiction , people may lose their jobs, their homes, their families , and even their lives. But to the extent our juvenile justice system is focused on these larger issues , it seeks to break children out of cycles of anti

- social behavior, not to punish or hold them
accountable for contributing to a problem that they did not create

. Under § 16

- 2310, p re - disposition detention is not a tool for teaching kids a lesson. Rather , as explained above, it has a limited public safety purpose which compels a showing

31 Also excluded are arson, burglary, prostitution, and pandering. D.C. Code § 16

- 2310 (a

- 1)(2).20

that a juvenile‘s particular behavior could cause direct , ―significant harm‖ to ―the person or property‖ of a particular individual (or individuals )

— not merely generalized harm to the District community at large

.

Moreover, the fact that this was K.G

. ‘s second arrest for selling drugs , incurred while he was on release in his juvenile case , do es not justify a detention
decision under § 16

- 2310. This is a basis for presumptive detention of adults under D.C. Code § 23

- 1322 (c) , but it is not a basis for presumptive detention of juveniles under § 16

- 2310 (a

- 1)

. Given that a child‘s recidivism while he has
another delinquency case pending does not create a presumption of detention, it

cannot by itself justify his detention whe n the government bears the burden of proof

. W ithout a particularized showing that the child is engaged in conduct that could cause direct, physical ―significant harm‖ to someone else‘s person or property, it is not an authorized basis for detaining the chi ld prior to final disposition

.

Finally, K.G.‘s violation of some of his conditions o f release did not justify
his detention. The trial court correctly acknowledged that, on their own, K.G.‘s noncompliance with his curfew, his failure to enroll in drug treatment, and his failure to complete computer training did not justify his detention under § 16

- 2310,21

but concluded that these violations in conjunction with his rearrest for selling dru gs did provide an adequate foundation for detention under the statute. We cannot
agree. I f neither K.G.‘s technical violations nor his rearrest individually
constituted conduct that could cause direct, ―significant harm‖ to someone else‘s
person or property , their combination likewise could not. Instead, K.G.‘s failure to comply with some of the conditions of his release , like K.G.‘s rearrest, established only that he was in need of enhanced care and supervision while on release and at most justifie d his placement in shelter care. 32

Because the evidence on which the trial court relied was insufficient under
the statute to support a decision to detain K.G. prior to his dispositional hearing,
we reversed the detention order

.

III. K.G.’s Entitlement T o Pursue an Emergency Appeal U nder D.C. Code § 16
- 2328

Before we conclude , we address the OAG‘s procedural argument that K.G. should not have been permitted to pursue an emergency interlocutory appeal and only had a right to an expedited appeal. The OAG argues that D.C. Code § 16

-

32 Counsel for K.G. did not object to him being placed in shelter care, and in our remand order we directed K.G. to be placed in shel ter care. See Appendix.22

2328

— which authorizes juveniles who are detained or placed in shelter care to pursue an appeal in this court and obtain a decision from us within a week of a trial court‘s order 33

— ―only applies where a juvenile  ̳has been ordered transferred for criminal prosecution under § 16

- 2307 or detained or p laced in shelter care or subject to conditions of release under § 16

- 2 312,‘‖ neither of which, th e OAG
argues , is the situation in K.G.‘s case. It is undisputed that K.G. has not been
ordered to be tried as an adult under D.C. Code § 16

- 2307 ( 2013 Repl

. ) ; we conclude , however, that he was detained ― under D.C. Code § 16

- 2 312, ‖ and thus
that he may pursue an emergency appeal under § 16

- 2328.

T he OAG argues that § 16

- 2312 ―governs an initial, pre

- trial detention order, not a post

- trial detention order , ‖ alluding to the fact that K.G. had already pled
involved to one count of possession of cocaine

. But § 16

- 2 312 does not limit the procedures it sets forth for making detention and shelter care decisions to initial
pre - trial detention orders. Nor does it make sense to read into the statute such a
limitation

. Section 16

- 2312 is the only statutory provision that authorizes a trial

33 If the juvenile file s a timely notice of appeal ( within two days of the date of entry of the trial court‘s order ), t his c ourt must then hear the appeal within three days (excluding Sundays) of th at filing, and we must render a decision ― on or before the next day ‖ following argument. D.C. Code § 16

- 2328 (a)

- (b). In this case, K.G. filed his notice of appeal on Thursday, Oct ober 5, 2017; this court heard oral argument on Saturday, October 7, 2017; and we issued an order reversing and remanding on Sunday, October 8, 2017. See Appendix.23

court to ―order detention or shelter care .

. . if [either] is required under the criteria
i n [§] 16

- 2310.‖ D.C. Code § 16

- 2312 (d)(1)(A). A s noted above, the reach of
D.C. Code § 16

- 2310 applies to a ll detention decisions made before either a factfinding or a dispositional hearing , i .e. before final adjudi cation of the juvenile.
If the OAG wer e correct, juveniles like K.G.

— to whom the OAG concedes the
strictures of § 16

- 2310 apply

— w ould have none of the procedural rights provided in § 16

- 2312 to ensure that they were properly detained or placed in shelter care pursuant to § 16

- 2310: they would have no statutory right to notice or an opportunity to be heard, no right to counsel, and n o right to a written decision explaining the reasons for the court‘s decision detaining them or placing them in
shelter care. See D.C. Code § 16

- 2312 (b)

- (d). We can conceive of no reason the Council would have intended such a result, particularly in lig ht of (1) its manifest
desire to limit the circumstances in which detention orders may issue and to keep
children with their families in t h e community whenever possible , see supra II.A. , and (2) its commitment to ensuring that juveniles receive due process

. 34 See D.C. Code § 16

- 2301.02 (1)

.

34 The District did not object to the hearing K.G. received prior to being detained, whic h satisfied all the procedural requirements of D.C. Code § 16

- 2312.24

In the absence of any language limiting § 16

- 2312 to initial pre

- trial detention hearings, the OAG cites to provisions of the statute

— subsections (e) and (f) , requiring an assessment of probable cause to believe the allegations in the delinquency petition are true before ordering detention or shelter care . The OAG argues that , because these subsections only make sense in the context of pre factfinding detentio n decisions , we must read the whole of § 16

- 2312 to appl y only to pre

- factfinding detention decisions

. We are unpersuaded by the OAG‘s logic.
These subsections of § 16

- 2312 establish that , even after satisfying the strictures of
D.C. Code § 16

- 2310, the District needs, at the very least, probable cause to restrict

a child‘s liberty and place him in juvenile detention. 35 But the fact that t here may be more than the requisite minimum probable cause

— for example, as in this case, a plea of involvement

— thereby obviating a finding of probable cause under § 16

- 2312 (e)

- (f) , does not obviate the other procedural protections of § 16

- 2312 (b)

- (d)

.

35 D.C. Code § 16

- 2312 (e) provides that ―[w]hen a judge finds that a child‘ s detention or shelter care is required under the criteria of section 16

- 2310, he shall then hear evidence

. . . to determine whether there is probable cause to believe the allegations in the petition are true. ‖ (emphasis added). See also D.C. Code § 16

- 2312 ( f

) (providing that ―[w] hen a judge finds there is probable cause to believe the allegations in the petition are true, he shall order the child to be placed or continued in detention or shelte r care and set forth [h]is reasons.‖).25

For the reasons discussed above, these provisions are still critical and have independent force. 36

― [ O ] ur task is to search for an interpretation that makes sense of the statute
as a whole

. ‖ D istrict of Columbia v. Reid , 104 A.3d 859, 868 (D.C. 2014) ; see , e.g. , In re T.G.T. , 515 A.2d 1086, 1088 (D.C. 1986) (reading D.C. Code § 16

- 2312 as a whole in assessing whether it permitted a delinquency petition to be filed within 5 days of a detention hearing upon a showing of good cause )

. We conclude
that the procedures for detention and shelter care hearings set forth in § 16

- 2312 can only sensibly be r ead to apply to the same range of detention and shelter care
decisions

—

i.e., decisions made before factfinding and dispositional hearings

— that are governed by the criteria set forth in § 16

- 2310. Accordingly, because K.G. was detained under § 16

- 2312, he was entitled to pursue an emergency appeal to this

court under § 16

- 2328.

36 In support of its argument that § 16

- 2328 only applies to initial pre

- tria l detention orders, the OAG also relies on this court‘s statement in In re K.H. , 647 A.2d 61 (D.C. 1994) , that the ―expedited appeal procedure applies to an original detention order under D.C. Code § 16

- 2312

. ‖ Id . at 62. The rest of th at sentence , however, makes plain that we were distinguishing between the ―original‖ order that directed the juvenile to be detained and ―subsequent orders denying reconsideration of the detention order.‖ Id

. Here , we are presented with ―an original order of detention.‖ Id

.26
IV. Conclusion

For the reasons set forth above, we have granted K.G.‘s motion for summary reversal and vacated the trial court‘s detention decision

.

So ordered.27
APPENDIX DISTRICT OF COLUMBIA COURT OF APPEALS No. 17
- FS
- 1106
I N R E K.G., A PPELLANT

. 2017 DEL 440
BEFORE: Beckwith and Easterly, Associate Judges, and Ruiz, Senior Judge.
JUDGMENT On consideration of appellant‘ s notice of appeal and motion for summary reversal wherein he seeks interlocutory review pursuant to D.C. Code § 16

- 2328 (a) & (b) (2012 Repl .); ap pellee the District of Columbia‘ s oppositi on and cross

- motion for summary affirmance; the trial court‘ s October 3, 2017, order; and t he October 7, 2017, argument on appeal before this court; it is ORDERED that, construing appellee ‘ s opposition in pa rt as a motion to dismiss appellant‘ s interlocutory appeal, the motion is denied. This c ourt has jurisdiction over this inter locutory appeal pursuant to D.C. Code § 16

- 2328. It is FURTHER ORDERED that appellant‘ s motion for summary reversal is granted and the trial court‘ s October 3, 2017, detention order di recting the Department of Youth Rehabilitation Services to place K.G. at the Youth S ervices Center (YSC) (which was reaffirmed by the trial court‘ s October 6, 2017, order denying appellant‘ s motion for reconsideration) is hereby vacated. The evidence presen ted by appellee and findings of the court are insufficient to estab lish that ― detention [at YSC] is required ‖ to ― protect the person or property of others from significant harm. ‖ D.C. Code § 16

- 2310 (a) (1) (2012 Repl .). It is FURTHER ORDERED that appe llee‘ s motion for summary affirm ance is denied.
It is FURTHER ORDERED that the trial court shall, no l ater than 5:00 p.m. of the date of this order, enter an order transferring K.G. to a youth shelter house. This court will issue an opinion in due course.
ENTERED BY DIRECTION OF THE COURT: JULIO A. CASTILLO Clerk of the Court Dated: October 8, 2017