In re J.A.G.

FERREN, Associate Judge,

concurring in the result:

I join in the judgment of reversal but not in my colleagues’ opinions.

I.

For at least thirty years, District of Columbia law has provided that once the juvenile court (now Juvenile Branch of the Family Division) obtains jurisdiction over a child, that jurisdiction continues until the child becomes 21 years of age or jurisdiction is earlier terminated. See D.C.Code 1973, § 16-2303; D.C.Code 1967, § 11-1551(b); D.C.Code 1961, § 11-907; D.C.Code 1951, § 11-907 (Supp. VII).1 Judicial decisions *20over the years accordingly have held that the juvenile court retains jurisdiction to modify or revoke a commitment or probation order in furtherance of its responsibilities to the child and to the community. In re C.I.T. v. C.M.T., D.C.App., 369 A.2d 171, 172 (1977) (under D.C.Code 1973, § 16-2303, Family Division has “continuing jurisdiction . . . over minors committed by it to DHR, and the periodic reviews necessary to such commitments”); In re Elmore, 127 U.S.App.D.C. 176, 179, 382 F.2d 125, 128 (1967) (where “there has been any significant change in petitioner’s condition requiring reevaluation of the initial commitment order, the Juvenile Court has power to shape its decree to reflect the current facts”); In re Lem, D.C.Mun.App., 164 A.2d 345, 348 (1960) (“Congress, realizing that the needs and welfare of a child committed under any conditions fluctuate rapidly, intended that the court have continuing jurisdiction in all child commitment cases in which it had original jurisdiction”); see Matter of an Inquiry Into Allegations of Misconduct Against Juveniles Detained and Committed at Cedar Knoll Institution, Department of Human Resources, D.C.App., 430 A.2d 1087, 1094 (1981) (Cedar Knoll Institution) (Ferren, J., dissenting) (court “still had jurisdiction over” child “who had aftercare status in the custody of his mother” and over child “who had absconded but was subject to an outstanding custody order to return to the Children’s Center”).

In summary, by virtue of D.C.Code 1973, § 16-2303 and a consistent line of cases interpreting that provision and its statutory predecessors, the Family Division retains general, post-dispositional jurisdiction over the treatment of juveniles. The question, then, is whether other provisions of the District of Columbia Code withhold particular jurisdictional areas from the court’s reach.

II.

In In re J.M.W., D.C.App., 411 A.2d 345, 348 (1980), this court noted that the statutory provision establishing the court’s disposi-tional alternatives, D.C.Code 1973, § 16-2320(a)(5), does not specifically provide for “ongoing involvement of the court ... in commitment cases,” unlike the provision that expressly authorizes the court “to modify or revoke probation.” See D.C.Code 1978 Supp., § 16-2327.

Thus, while the court is specifically granted authority to modify or revoke a dispositional order placing a juvenile on probation, the court is without statutory power to intervene after commitment. In the absence of such an express grant, we find that the court was without authority to revoke petitioner’s aftercare status and order his placement at Oak Hill. [J.M.W., supra at 348.]

The court found unpersuasive the argument that “the court has inherent authority by virtue of the doctrine of parens patriae and the general jurisdictional grant of D.C.Code 1973, § 16-2303.” Id. The court concluded:

Although this provision [§ 16-2303] clearly allows the court to retain continuing jurisdiction over a juvenile until he reaches the age of majority, it should not *21be interpreted to be a grant which allows the court to exercise its authority in a manner which is inconsistent with or broader than statutory mandate. To hold that this section provides for judicial modification of a commitment order would extend the powers of the court far beyond that which is expressly delegated by statute. [Id]

The court nonetheless recognized an exception to “complete autonomy” for an agency to which the court commits a child. It noted that D.C.Code 1973, § 16-2322(a)(1)2 authorizes the juvenile court to “retain a veto power over release, if specifically ordered at the time of disposition.” supra at 348 n.3; see In re J.J., D.C.App., 431 A.2d 587, 591 & n.8, 9 (1981).

Respectfully, I disagree with the foregoing analysis in J.M.W., supra. Given the Family Division’s general grant of continuing jurisdiction, D.C.Code 1973, § 16-2303, there is no reason to infer that the express grant of authority in D.C.Code 1978 Supp., § 16-2327 to modify or revoke a probation order somehow negates the court’s continuing jurisdiction over a commitment order. The only reason for the inference appears to be the court’s belief that, in contrast with a probation order, an order transferring “legal custody” to the agency is a relinquishment of general jurisdiction. J.M.W., supra at 348. To the contrary, I perceive no reason why a transfer of legal custody to an executive department or agency that traditionally assumes responsibility for a delinquent child necessarily eliminates the court’s continuing, supervisory jurisdiction over the exercise of that custody. Nor do I understand why there needs to be a more “express” grant of continuing jurisdiction to intervene after commitment than Congress enacted in D.C.Code 1973, § 16-2303 — especially in view of the decisional law interpreting that provision and its predecessors. See C.I.T., supra; Elmore, supra; Lem, supra. Finally, the court’s very authority to condition its disposition by retaining “a veto power over release,” J.M.W., supra at 348 n.3; see D.C. Code 1973, § 16-2322(a)(1); note 2 supra, is a confirmation of continuing jurisdiction over the child up to the point of outright release. The fact that the custodian may release the child without court permission, unless the court specifically reserves the right to approve, is merely a legislative recognition of the custodian’s presumptive expertise and good judgment; it does not imply that Congress has withheld authority from the court to intervene during the period between commitment and release.

Thus, as I see it, until a juvenile is released unconditionally, the court has continuing jurisdiction to review and intervene, as appropriate, in the child’s situation — including scrutiny of a conditional release status such as aftercare. See ante at 14 n.2. Indeed, as this court recently noted in C.I.T., supra, the Family Division, sua sponte, routinely conducts “periodic reviews” of juvenile commitments to DHR (now DHS) — a procedure the court characterized as “necessary” pursuant to the court’s “continuing jurisdiction.” Id. at 172; see Super.Ct.Juv. R. 32(h).3

*22Contrary to the foregoing analysis, however, J.M. W., supra, is a decision binding on this division as well as on the trial court. See M.A.P. v. Ryan, D.C.App., 285 A.2d 310, 312 (1971). Consequently, I must agree that J.M.W. mandates reversal here, for although the court, in its commitment order, had properly designated J.A.G.’s placement at Highland Hospital and thus retained jurisdiction to enforce that order, it attempted improperly (under J.M.W.) to reassert jurisdiction after DHS had released J.A.G. from the hospital with court permission.

III.

As Chief Judge NEWMAN intimates, see ante at 16, J.M.W. and J.J. leave open a possibility for continuing jurisdiction after the initial commitment, since the juvenile court can “retain a veto power over release” pursuant to § 16-2322(a)(1). J.M.W., supra at 348 n.3; see note 2 supra. This suggests that the Family Division may not lose jurisdiction if it carefully spells out in the initial commitment order all the supervisory authority it wishes to retain over the child’s legal custodian, such as DHS, during the period before outright release. See J.J., supra at 591 & n.9. Chief Judge NEWMAN reaffirms, for example, that the court may specify as part of its initial commitment order that DHS shall place the child in a named educational institution. See ante at 16; J.J., supra at 590-91; D.C. Code 1978 Supp., § 16-2320(a)(5)(i); id. 1973, § 16-2320(c)(1). It follows, presumably, that the court has power to monitor the child’s progress there. See J.J., supra at 591.

I say “presumably” because J.M.W. and J.J. do not make clear how much supervisory jurisdiction the court can retain under § 16-2322(a)(l) based on the right to provide for initial disposition, coupled with the right to veto release. A possible limitation on an absolute right to reserve continuing supervisory jurisdiction (consistent with J.M.W.) is in the statutory provisions governing modification of commitment orders, D.C.Code 1978 Supp., § 16-2324(b) and (c).4 Literally, as Chief Judge NEWMAN suggests, ante at 16, these provisions limit a child, parent, or guardian to petitioning for modification or termination of a commitment order only “on the ground that the child no longer is in need of commitment” and only after applying to the custodial agency for “release,”5 They do not appear *23to permit petitions to modify concededly necessary commitment. Nonetheless, whatever limitations there may be on a petition by a child, parent, or guardian under § 16-2324, but see note 5 supra, they would not necessarily affect the juvenile court’s supervisory jurisdiction, reserved in the initial commitment order pursuant to § 16-2322(a)(1), to act sua sponte.

In short, J.M.W. cannot necessarily be read to preclude the juvenile court from affirmatively retaining whatever supervisory jurisdiction over a child’s commitment the court deems necessary, and J.J. can be read to encourage that interpretation of § 16-2322(a)(l1.6 If J.M.W. is to remain the law, however, this question needs a definitive answer, for the supervisory jurisdiction of the Family Division should not be unsettled. Too much is at stake.

IV.

I turn, finally, to the trial court’s disposition. In J.M.W., supra, the court was concerned about the court’s “impermissible encroachment upon the province of the executive” agency taking legal custody of the child. Id. at 349. The courts, of course, review the actions of executive departments and .agencies in countless contexts, the concern being proper deference to the agency, not abdication by the courts. Accordingly, if J.M.W., supra, were not binding on this division, I would see this case as one involving the scope of trial court discretion, not jurisdiction to act.

In the present case, therefore, the trial court should evaluate whether DHS would meet its statutory responsibilities in electing to place J.A.G. “here in the District of Columbia ... [at] UDC or D. C. Skills Center, the Occupational Industrial Center” (coupled with treatment by AA) — and in thus declining to pay for J.A.G. at Gables Academies in Atlanta. More specifically, the trial court should inquire into the merits of the contention that DHS, in exercising its discretion here, will not “achieve the minimum conditions required for the District to meet its statutory responsibilities to the particular child before the court,” Cedar Knoll Institution, supra at 1097 (Ferren, J., dissenting), namely “ ‘custody care and discipline as nearly as possible equivalent to that which should have been provided him by his parents.’ ” Id. (Ferren, J., dissenting) (quoting Super.Ct.Juv. R. 2) (footnote omitted).

In the event the trial court answers that DHS has not met its responsibilities to the child, this court, on appeal by the District of Columbia, must evaluate not only whether the court erred as to DHS but also, if it did not, whether the trial court’s own alternative remedial order was “reasonably necessary to achieve the court’s statutory responsibilities to assure proper ‘supervision, care, and rehabilitation,’ D.C.Code 1973, § 16-2320(c), of the particular children who are parties before the court.” Id. at 1099 (Fer-ren, J., dissenting).

The record does not permit a finding that DHS, in the exercise of reasonable discretion to place J.A.G. in District of Columbia facilities, will “achieve the minimum conditions required for the District to meet its statutory responsibilities.” Id. at 1097 (Ferren, J., dissenting). The DHS social worker testified:

Your Honor, J has been under commitment to the Department of Human Services since June 8,1979. He’s had most of his placement during that time at Duke University, Highland Hospital, adolescent. He made a very good adjustment there, and it seems that he’s responsive to the program that they had at Duke University. During the summer he was as an outpatient from Duke University, and he was at Camp Penocal (phonetic), where it seemed he was going to be entered into the Blue Ridge Technical College for the fall, but during the summer months, J became somewhat depressed, and started having some other types of problems. Therefore, the school felt at that time that he was not — he could not meet the entering requirements, to do the *24work at the technical school. He was going to take carpentry and comp — cabinet making there. He did pass the GD while he was at Duke University, but, at this time it is felt that he needs more or less a junior preparatory, or more work to upgrade his level of academics before entering and he wants to continue with his college education. We have explored possibilities of placement here in the District of Columbia for J to complete his college education, or to upraise his level for the GD — the grade points. He could go to UDG or D. C. Skills Center, the Occupational Industrial Center, but at this time, it’s felt as though that he’s having a problem with alcoholism, and he’s now enrolled in the AA program here in the District of Columbia. Since my report was submitted to you, he has had interviews at the Gable (phonetic) school in Atlanta. It seems as though they are willing to accept him there, and the environment might be more conducive to his continuing his education at that school. Our stand at this point, Your Honor, is that we have no contract with DHS — do not have a contract with the Gable School, do not have funds for a non-contract facilities. If he were to [be] placed there we’d have to work bilaterally with D. C. Public Schools, who could share responsibility for tuition and care for him to be placed there. [Emphasis added.]

Although this testimony established that J.A.G. “could” attend “UDC” or the “D. C. Skills Center, the Occupational Industrial Center,” it is not clear that this placement, coupled with enrollment “in the AA program here in the District of Columbia,” is sufficiently responsive to his needs to meet statutory requirements.

On the other hand, neither does the record justify a conclusion that the trial court’s own alternative remedy, placement at Gables Academies, was “reasonably necessary to achieve the court’s statutory responsibilities” to J.A.G. Cedar Knoll Institution, supra at 1099 (Ferren, J., dissenting). In another context (review of treatment in a residential facility), I have discussed the respective responsibilities of the trial and appellate courts in reviewing the actions of DHR (now DHS):

This “reasonably-necessary-for-particular children” standard is, of course, imprecise. When coupled with an abuse-of-discretion standard for appellate review, it would grant considerable leeway to the trial judge. Therefore, given the potential scope of judicial intervention, as well as the need for appropriate sensitivity to the prerogatives of the executive branch of the District government, I would require a judge who proposes to issue a sweeping order to justify it with precision, through detailed findings directed at the necessity for such relief for the particular child concerned. [Id. (Ferren, J., dissenting).]

In the present case, the court ordered J.A.G. placed at the Gables Academies in Atlanta at a cost to the District not to exceed $9,000, based on the following findings:

1. That the respondent is in need of special services to address his learning disability, his emotional problems, and his alcoholism.
2. That it is in the respondent’s best interest that the services be provided outside of the District of Columbia.
3. That the respondent has been interviewed and has visited the Gables Academies facility in Atlanta, Georgia, and that they have identified him as being appropriate for their program.
4. That counsel for respondent quoted from a fee schedule provided by the Gables Academies which states that the tuition cost is $8,460.00 and all additional charges do not exceed eight hundred dollars ($800).

Given the implications of this approach for the public fisc, this is indeed a “sweeping order” that must be justified “with precision through detailed findings.” Id. (Fer-ren, J., dissenting). The trial court provided no such justification.

Accordingly, if the trial court had jurisdiction to order a second placement — and, were it not for J.M.W., supra, I would hold *25that it does — I would join in Judge KERN’s call for a remand for further proceedings.

V.

Only because this division is bound by supra, I vote to reverse the court’s order for lack of jurisdiction.7

. D.C.Code 1951, § 11-907 (Supp.VII), provided in part:

*20When jurisdiction shall have been obtained by the court in the case of any child, such child shall continue under the jurisdiction of the court until he becomes 21 years of age unless discharged prior thereto: Provided, however, That nothing herein contained shall affect the jurisdiction of other courts over offenses committed by such child after he reaches the age of 18.

This provision remained essentially unchanged, see D.C.Code 1961, § 11-907; D.C.Code 1967, § 11-1551(b), until rewritten in D.C.Code 1973, § 16-2303, which is in effect today and provides:

For purposes of this subchapter, jurisdiction obtained by the Division in the case of a child shall be retained by it until the child becomes twenty-one years of age, unless jurisdiction is terminated before that time. This section does not affect the jurisdiction of other divisions of the Superior Court or of other courts over offenses committed by a person after he ceases to be a child. If a minor already under the jurisdiction of the Division is convicted in the Criminal Division or another court of a crime committed after he ceases to be a child, the Family Division may, in appropriate cases, terminate its jurisdiction.

. D.C.Code 1973, § 16-2322(a)(1) provides:

A dispositional order vesting legal custody of a child in a department, agency, or institution shall remain in force for an indeterminate period not exceeding two years. Unless the order speciües that release is permitted only by order of the Division, the department, agency, or institution may release the child at any time that it appears the purpose of the disposition order has been achieved. [Emphasis added.]

. Super.Ct.Juv. R. 32(h) provides:

REVIEW OF DISPOSITION. If the disposition order involves placement of the child in an institution, hospital, or agency upon specified conditions, upon request of counsel for the child or Corporation Counsel, the Division shall order that a report concerning implementation of the stated conditions be filed with the Division within 30 days after entry of the dispositional order, and a copy sent to counsel. If such report does not reflect full implementation of the original dispositional order, counsel for the child may request that the Division set a date for a prompt hearing and order notice sent to all parties, including the institution, hospital or agency in whose custody the child was placed by the disposi-tional order.

As noted in the comment to Rule 32, “[s]ection (h) is designed to provide a means of determin*22ing whether dispositional orders are in fact implemented.”

. D.C.Code 1978 Supp., §§ 16-2324(b) and (c) provide:

(b) A child who has been committed under this subchapter to the custody of an institution, agency, or person, or the parent or guardian of the child, may file a motion for modification or termination of the order of commitment on the ground that the child no longer is in need of commitment, if the child or his parent or guardian has applied to the institution or agency for release and the application was denied or not acted upon within a reasonable time.
(c) The Director of Social Services shall conduct a preliminary review of motions filed under subsection (b) and shall prepare a report to the Division on the allegations contained therein. The Division may dismiss the motion if it concludes from the report that it is without substance. Otherwise, the Division, after notice, shall hear and determine the issues raised by the motion and deny the motion. Or enter an appropriate order modifying or terminating the order of commitment, if it finds such action necessary to safeguard the welfare of the child or the interest of the public.

. This literal interpretation presents several problems. First, there is a facial inconsistency in permitting a petition for “modification” only on the ground of no need for commitment and a request for outright “release.” Second, D.C. Code 1978 Supp., § 16-2324 was intended to “establish a procedure for modifying and terminating court orders in somewhat greater detail” than its predecessor, D.C.Code 1967, § 16-2309. Hearings on S. 2981 Before the Sen. Comm, on the District of Columbia, 91st Cong., 1st Sess. 1806 (1969) (statement of Donald E. Santarelli). There appear to be no relevant substantive differences between the two statutes, and the broad language of the case law construing the statutes over the years does not limit the court’s power to “modify” to rulings on petitions for “release.” As a practical matter, moreover, if there must be an application for “release,” any petition for modification surely will contain that request, coupled with a request for modification as a fallback. Thus, any such limitation on a petition for release would be easy to get around at the cost of a makeweight argument.

. In disagreeing with J.M.W., I personally find that D.C.Code 1973, § 16-2303 permits continuing jurisdiction even when the court makes no express reservation. See Part II, supra.

. Before this opinion could be published, the current statutory provisions were recodified in a new 1981 District of Columbia Code; e.g., D.C.Code 1981, § 16-2303. See note 1 supra.