CASE NO. SCT-CIV-2020-0103/SCT-CIV-2020-0108 _______________________________________________

IN THE SUPREME COURT OF THE VIRGIN ISLANDS __________________________________________________________________

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

Appellant __________________________________________________________________

On Appeal from the Superior Court of the Virgin Islands Division of St. Thomas/St. John

ST-2019-JD-00030

____________________________________________________________

REPLY BRIEF OF APPELLANT __________________________________________________________

ADAM G. CHRISTIAN OGLETREE, DEAKINS, NASH, SMOAK & STEWART, LLC

The Tunick Building, Suite 201 1336 Beltjen Road

St. Thomas, VI 00802 Telephone: (340)714-1235 Facsimile: (340) 714-1245

Email: adam.christian@ogletree.com

i

TABLE OF CONTENTS

Page No.

TABLE OF AUTHORITIES .................................................................................... ii

ARGUMENT ............................................................................................................. 1

APPELLEE WAIVED ALL ARGUMENTS IN ITS BRIEF BY FAILING TO RAISE THE ISSUES AT THE TRIAL LEVEL .................................................. 1

THE STATUTES CITED BY APPELLEE DO NOT GRANT THE FAMILY COURT ANY AUTHORITY TO PLACE APPELLANT UNDER THE CONTINUING JURISDICTION OF THE DEPARTMENT OF HUMAN SERVICES AFTER CLOSING A CASE ............................................................ 3

THE FAMILY COURT VIOLATED APPELLANT’S DUE PROCESS RIGHTS BY NOT FOLLOWING THE STATUTES AND RULES GOVERNING JUVENILE DELINQUENCY PROCEEDINGS ........................ 7

THE FAMILY COURT ERRED IN NOT GRANTING RELIEF, WHETHER UNDER V.I. R. CIV. P. 6-4 OR V.I. R. CIV. P. 60(B) ....................................... 9

CONCLUSION ........................................................................................................ 13

CERTIFICATE OF COMPLIANCE WITH RULE 22(f) ....................................... 15

CERTIFICATE OF COMPLIANCE WITH RULE 22(l) ....................................... 15

CERTIFICATE OF SERVICE ................................................................................ 16

ii

TABLE OF AUTHORITIES

Page(s)

Cases

In re Adoption of Sherman, 49 V.I. 452 (V.I. 2008) ......................................................................................... 3

Arlington Funding Servs., Inc. v. Geigel, 51 V.I. 118, 133 (V.I. 2009) ................................................................................. 8

Bank of Nova Scotia v. Flavius, Case No. SX-16-CV-125, 2018 WL 745958 (V.I. Super. Ct. Feb. 2, 2018) ................................................................................................................. 2

Benjamin v. AIG Ins. Co. of P.R., 56 V.I. 558, 564 (V.I. 2012) ................................................................................. 8

Benjamin v. AIG Ins. Co. of P.R., 56 V.I. 558 (V.I. 2012) ......................................................................................... 1

Billu v. People, 57 V.I. 455 (V.I. 2012) ......................................................................................... 5

Boynes v. Transp. Servs. of St. John, Inc., 60 V.I. 453 (V.I. 2014) ......................................................................................... 7

In re Brandi B., 743 S.E.2d 882 (W.Va. 2013) ............................................................................... 8

Bryan v. Fawkes, 61 V.I. 416 (V.I. 2014) ......................................................................................... 6

In re Chelsey D., 707 N.W.2d 798 (Neb. Ct. App. 2005) ................................................................. 5

Corrales v. Castillo, 2:07-cv-00141-RCJ-PAL, 2009 WL 10709626 (D. Nev. Nov. 24, 2009) ................................................................................................................... 11

iii

DeSaulniers v. Mashantucket Pequot Gaming Enters., CV–AA–1998–0164 (MPTC–EA–98–126), 1998 WL 35232485 at * 5 (M.P. Tribal Ct. Sept. 8, 1998) ..................................................................... 13

Fencher v. Case, 660 N.W.2d 631 (S.D. 2003) .............................................................................. 12

Gayanich v. Gayanich, 69 V.I. 583 (V.I. 2018) ......................................................................................... 4

Gould v. Salem, S. Ct. Civ. No. 2010-0098, 2012 WL 2122580 (V.I. May 31, 2012) ................. 11

In re Joseph, 65 V.I. 217 (V.I. 2016) ......................................................................................... 4

In re M.O.R., 851 A.2d 503 (D.C. 2004) .................................................................................... 9

Mills-Williams v. Mapp, 67 V.I. 574 (V.I. 2017) ....................................................................................... 10

People v. Baxter, 49 V.I. 384 (V.I. 2008) ......................................................................................... 3

Percival v. People, 62 V.I. 477 (V.I. 2015) ......................................................................................... 2

Rieara v. People, 57 V.I. 659, 667 (V.I. 2012) ................................................................................. 7

In re Sims, 371 N.E.2d. 935 (Ill. Ct. App. 1977) .................................................................... 9

Sobratti v. Tropical Shipping and Const. Co., Ltd., 267 F.Supp.2d 455 (D.V.I. App. Div. 2003) ........................................................ 9

St. Thomas–St. John Bd. of Elections v. Daniel, 49 V.I. 322, 335–36 (V.I. 2007)) .......................................................................... 2

State Farm Fire & Cas. Co. v. Pietak, 109 Cal. Rptr. 2d 256 (Cal. Ct. App. 2001) ........................................................ 11

iv

State in the Interest of Y.C., 91 A.3d 636, 642-43 (N.J. Super. Ct. App. Div. 2014) ........................................ 8

State v. Iyana P., 907 N.W.2d 333 .................................................................................................... 7

State v. Smith, 247 P.3d 775 (Wash. Ct. App. 2011) .................................................................. 12

State v. Steven P., 309 P.3d 1041 (Nev. 2013) ................................................................................... 5

Sumpter v. United States, 564 A.2d 21 (D.C. 1989) ...................................................................................... 9

United States v. Allen, 312 F.3d 512,515-16 (1st Cir. 2012) .................................................................... 6

Whyte v. Bockino, 69 V.I. 749 (V.I. 2018) ......................................................................................... 2

Statutes

5 V.I.C. § 2521 ........................................................................................................ 3,4

5 V.I.C. §§ 2521(b)(3) ............................................................................................ 3,4

5 V.I.C. § 2524(a) ...................................................................................................... 5

5 V.I.C. § 2552 ........................................................................................................... 4

5 V.I.C. § 2552(a)(5) .................................................................................................. 3

CAL. CIV. PROC. § 473(b) ..................................................................................... 10

California Civil Procedure Code section 473, Section 473 ..................................... 10

Rules

V.I. R. APP. P. 22(m) ................................................................................................ 2

V.I. R. CIV. P. 6-4 ................................................................................................ 9,10

V.I. R. CIV. P. 60(b) ............................................................................................. 9,10

v

V.I. R. CIV. P. 60(b)(1) ........................................................................................... 10

V.I. S. CT. R. 4(h) ...................................................................................................... 2

V.I. S. CT. R. 22(m) ................................................................................................... 2

Civil Rule 6-4 ........................................................................................................... 10

Civil Rule 60(b)(1) ................................................................................................... 10

Civil Rule 60(b)(6) .............................................................................................. 10,11

1

ARGUMENT

I. APPELLEE WAIVED ALL ARGUMENTS IN ITS BRIEF BY FAILING TO RAISE THE ISSUES AT THE TRIAL LEVEL

In three discrete sections within its brief, Appellee makes several arguments

in opposition to the arguments, points, and authorities raised by Appellant in his

main brief. Appellee relies on several statutes and cases to support these arguments.

However, this Court should not entertain any of Appellee’s positions and arguments

because it waived all of them.

The only briefing conducted by the parties below was on Appellant’s motion

seeking reconsideration of the Family Division of the Superior Court of the Virgin

Islands’ (“Family Court”) August 17, 2020 Order, to which Appellee responded and

Appellant replied. [JA at 114-128] On these consolidated appeals, Appellant

presents the same arguments raised below. [JA at 114-122] However, in its

opposition to the motion for reconsideration, Appellee only argued the Family Court

had broad discretion to act in the best interest of Appellant – a minor. Appellee

failed to raise the other arguments in its brief before the Family Court. [JA at 123-

125] Therefore, Appellee waived all of these additional arguments and this Court

should not entertain them. See, See, Benjamin v. AIG Ins. Co. of P.R., 56 V.I. 558,

2

566 (V.I. 2012) (citing former V.I. S. CT. R. 4(h) and St. Thomas–St. John Bd. of

Elections v. Daniel, 49 V.I. 322, 335–36 (V.I. 2007)).1

Appellee also failed to cite any legal authority whatsoever to support its

contention below that the Family Court’s August 17, 2020 Order was a valid

discretionary act issued in the best interests of Appellant. [JA at 123-125] The

failure of Appellee to present such legal authority below constitutes a waiver of this

issue. See, Whyte v. Bockino, 69 V.I. 749, 757 (V.I. 2018) (citing V.I. R. APP.

P. 22(m)); Percival v. People, 62 V.I. 477, 491-93 (V.I. 2015) (“But again, he does

not cite a single legal authority in making this argument, so this issue is also

waived.”) (citing former V.I. S. CT. R. 22(m)); Bank of Nova Scotia v. Flavius, Case

No. SX-16-CV-125, 2018 WL 745958 at * 2 (V.I. Super. Ct. Feb. 2, 2018)

(“The waiver argument is not properly before the Court and will not be addressed

because BNS did not cite to any Virgin Islands law or any legal authority and makes

no substantial argument to support this assertion.”) (citations omitted).

Based on Appellee’s aforesaid waivers, the arguments in its brief are not

properly before this Court, and this appeal should be determined on Appellant’s

submissions only. However, in the interest of being complete, recognizing that this

Court has not previously adjudicated the specific issues Appellant raises, and

1 Appellant raised the waiver issue in its reply memorandum to the Family Court, but that tribunal did not address the issue in its August 17, 2020 Order. [JA at 126-133]

3

without waiving the aforesaid waiver argument, Appellant addresses each of

Appellee’s arguments below.

II. THE STATUTES CITED BY APPELLEE DO NOT GRANT THE FAMILY COURT ANY AUTHORITY TO PLACE APPELLANT UNDER THE CONTINUING JURISDICTION OF THE DEPARTMENT OF HUMAN SERVICES AFTER CLOSING A CASE

In the first section of its arguments, Appellee contends the Family Court did

not extend Appellant’s probation in its August 17, 2020 Order, but, rather, exercised

its authority under certain statutes to issue orders for the care, treatment, and

supervision of Appellant. It also appears to argue Appellant’s compliance with the

court-ordered Department of Human Services (“DHS”) supervision is only

voluntary under said Order. Neither of these contentions hold water.

Appellee attempts to construe 5 V.I.C. § 2521(b)(3) and 5 V.I.C. § 2552(a)(5)

together to bestow on the Family Court very broad authority to place Appellant

under the continuing supervision of the DHS despite closing his delinquency case.

In its argument, Appellee quotes only portions of 5 V.I.C. § 2521(b)(3), and ignores

this Court’s admonition that “…each statutory provision must be read by reference

to the whole statute.” People v. Baxter, 49 V.I. 384, 393 (V.I. 2008) (citations

omitted). See also, In re Adoption of Sherman, 49 V.I. 452, 465 (V.I. 2008) (citations

omitted). It is obvious upon reading of the full text of 5 V.I.C. § 2521 that the section

applies to disposition hearings. The August 17, 2020 Family Court Order was not

4

issued as the result of disposition hearing – it was issued without any hearing

whatsoever! The Family Court held the disposition hearing on February 18, 2020

and issued the resulting Order on March 5, 2020. [JA at 75-78] This Order is not

on appeal. Thus, 5 V.I.C. § 2521 does not apply to the August 17, 2020 Order at all.

Moreover, when relying on 5 V.I.C. § 2521(b)(3) to make 5 V.I.C. § 2552

relevant to this discussion, Appellee again ignores the plain meaning of the words

used in the statute – an error which flies in the face of settled canons of statutory

construction. See, e.g., Gayanich v. Gayanich, 69 V.I. 583, 593 (V.I. 2018)

(citations omitted); In re Joseph, 65 V.I. 217, 227 (V.I. 2016) (citations omitted).

The portion of § 2521(b)(3) authorizing the Family Court to issue orders pursuant to

5 V.I.C. § 2552 states,

In support of any order or decree, the court may order the parents or other person who has been found by the court to be encouraging, causing or contributing to the acts or conditions which bring the child within the purview of this subchapter, to do or omit to do any acts required or forbidden by law, or to provide for an order of protection as per section 2552 of this title, when the judge deems such requirement necessary for the welfare of the child. In case of failure to comply with such requirement, the court may proceed against such persons for contempt of court. 5 V.I.C. § 2521(b)(3) (emphasis added).

Obviously, this language gives the Family Court authority to issue orders,

after making factual findings, under the abuse and neglect statutes to persons

contributing to a minor’s delinquency, and hold them in contempt of court if said

persons do not comply with the Family Court’s directives. This portion of §

5

2521(b)(3) does not provide the Family Court with any authority to issue any orders

to a juvenile delinquent.

As to Appellee’s, and the Family Court’s, position that 5 V.I.C. § 2524(a)

gives the Family Court broad discretion to close a juvenile delinquency proceeding,

as noted in Appellant’s main brief, that authority extends only to terminating

probation and discharging the subject minor. 5 V.I.C. § 2524(a). Since that

subsection does not grant the Family Court the authority to add further supervision

to an existing probation order or after the termination of a probationary period, such

power cannot be read into that law under the axiom of “...expressio unius est exclusio

alterius, which means “ ‘to express or include one thing implies the exclusion of the

other.’” Billu v. People, 57 V.I. 455, 467-68 (V.I. 2012) (citations omitted). Clearly,

the statutes cited by Appellee do not provide the Family Court any power to place

Appellant under the continuing supervision of DHS after terminating his probation

and closing his case. See, e.g., In re Chelsey D., 707 N.W.2d 798, 800 (Neb. Ct.

App. 2005) (“As a statutorily created court of limited and special jurisdiction, a

juvenile court has only such authority as has been conferred on it by statute.”); State

v. Steven P., 309 P.3d 1041, 1046 (Nev. 2013).

Appellee then intimates because the DHS continuing supervision directed in

the August 17, 2020 Order was voluntary, it cannot be equated with an extension of

Appellant’s probation. Appellee relies on the statement of the Family Court that

6

“[i]t is important to note that the Department of Human Services has broad

discretion, access to resources beyond the courts and protective supervision is in fact

voluntary.” [JA at 132] There are two shortcomings with Appellee’s stance.

First, neither the Family Court nor Appellee cite to any provision of law

supporting the assertion that court-ordered DHS supervision is voluntary. Second,

the Family Court’s quoted language is in the opinion portion of the October 9, 2020

Order denying reconsideration. The August 17, 2020 Order belies this hindsight

explanation because it unequivocally states it is “ORDERED that the minor, [A.P.],

shall be transferred to the Division of Children & Family Services, Protective Unit

of the Department of Human Services for continued supervision of his educational,

behavioral, and substance abuse issues….” [JA at 109-110] (emphasis added).

Plainly, the Family Court mandated2 Appellant’s transfer from its oversight to that

of DHS to continue the supervision commenced by his probation. The October 9,

2020 Order cannot change this construction because “…when this Court includes

plain, unambiguous language in a court order, court rule, or other court-issued

document, this Court “simply means what it says.” Bryan v. Fawkes, 61 V.I. 416,

457 (V.I. 2014) (citations omitted). Thus, this argument does not assist Appellee’s

position.

2 The use of the word “shall” in a court order is usually construed as a mandate. See, United States v. Allen, 312 F.3d 512,515-16 (1st Cir. 2012).

7

III. THE FAMILY COURT VIOLATED APPELLANT’S DUE PROCESS RIGHTS BY NOT FOLLOWING THE STATUTES AND RULES GOVERNING JUVENILE DELINQUENCY PROCEEDINGS

Appellee argues the Family Court did not violate Appellant’s due process

rights because the probation revocation statutes and rules were inapplicable to the

August 17, 2020 hearing. Appellee then contends that the relief requested by

Appellant is improper because said relief would deprive it and the Family Court of

the ability to commence probation revocation proceedings against Appellant if this

case is remanded to the Family Court. Finally, Appellee argues Appellant cannot

challenge the findings of the Family Court in the August 17, 2020 Order under the

judicial admissions doctrine. All of these arguments fail.

Appellant relies on the arguments in his main brief for the proposition the

probation revocation statutes and rules were applicable and compliance with them

necessary before issuance of the August 17, 2020 Order. Additionally, Appellee

ignores precedent of this Court emphasizing that trial courts generally must conduct

hearings in order to properly issue findings of fact and conclusions of law. See,

Boynes v. Transp. Servs. of St. John, Inc., 60 V.I. 453, 465 (V.I. 2014) (hearing

required to determine a motion to enforce a settlement agreement); Rieara v. People,

57 V.I. 659, 667 (V.I. 2012) (hearing required to determine a motion to modify bail

and pretrial release conditions). Case law around the country supports the

application of this principle as a matter of due process in juvenile cases. See, State

8

v. Iyana P., 907 N.W.2d 333, 339; State in the Interest of Y.C., 91 A.3d 636, 642-43

(N.J. Super. Ct. App. Div. 2014) (as a matter of statute and due process, a juvenile

is entitled to notice, a hearing, and issuance of findings and conclusions before being

transferred to the State Department of Corrections); In re Brandi B., 743 S.E.2d 882,

897-98 (W.Va. 2013) (transfer of custody of a minor from her parents to a

government agency without a hearing before findings were made violated state

statutes and due process). Thus, the due process Appellant received via the earlier

disposition and review hearings, and the resulting orders cannot suffice as due

process for an order issued months later without any hearing, without cross-

examination of witnesses, and without any prior notice that Appellant might be

placed under the continuing supervision of DHS at the end of his probation.

Appellee’s reliance on the doctrine of judicial admissions is severely

misplaced. Appellee contends the contents of the DHS reports and prior Family

Court findings in the record bind Appellant under this doctrine. This reflects a

complete misunderstanding of the doctrine of judicial admissions, which this Court

adopted in Arlington Funding Servs., Inc. v. Geigel, 51 V.I. 118, 133 (V.I.

2009), overruled in part on other grounds by Benjamin v. AIG Ins. Co. of P.R., 56

V.I. 558, 564 (V.I. 2012).

In Arlington Funding Servs., Inc., this Court adopted the doctrine of judicial

admissions articulated by the Appellate Division of the District Court of the Virgin

9

Islands. That tribunal stated, “…facts asserted in pleadings may be regarded as

‘judicial admissions’ which are binding on the party asserting them for the

purpose of that case and any later appeal and which do not have to be later

proven.” Sobratti v. Tropical Shipping and Const. Co., Ltd., 267 F.Supp.2d 455,

462–63 (D.V.I. App. Div. 2003) (citations omitted) (emphasis added). Because the

statements of DHS in its reports and earlier hearings testimony and the prior findings

of the Family Court are not assertions of Appellant, they cannot bind him under the

doctrine of judicial admissions.

Finally, Appellant’s requested relief is appropriate because his probation

expired on August 19, 2020 under the express terms of the March 5, 2020 and July

9, 2020 Family Court orders. [JA at 75-78 and 91-93] Therefore, Appellant had a

“…‘clear and indisputable’ right to be released from the conditions of probation

upon expiration of the initial one-year probationary period imposed by the trial

court.” In re M.O.R., 851 A.2d 503, 512 (D.C. 2004) (citing Sumpter v. United

States, 564 A.2d 21, 24 (D.C. 1989)). See also, In re Sims, 371 N.E.2d. 935, 935-

36 (Ill. Ct. App. 1977). Therefore, this Court should grant Appellant his requested

relief.

IV. THE FAMILY COURT ERRED IN NOT GRANTING RELIEF, WHETHER UNDER V.I. R. CIV. P. 6-4 OR V.I. R. CIV. P. 60(b)

Appellee’s final argument section requests this Court affirm the Family

Court’s October 9, 2020 Order denying Appellant’s motion for reconsideration

10

because: 1) Appellant’s motion should have been filed pursuant to Rule 60(b) of the

Virgin Islands Rules of Civil Procedure (“Civil Rules”); and 2) any error of Family

Court in denying reconsideration was harmless error under Rule 61 of those rules.3

Notwithstanding these arguments, the October 9, 2020 Order denying

reconsideration should be reversed.

Notably, the Family Court treated Appellant’s motion below as one for

reconsideration and relied on Rule 6-4 of the Civil Rules. [JA at 131] However,

even if both Appellant and the Family Court erred in relying on Civil Rule 6-4, this

Court may place substance over form and analyze this issue under Civil Rule 60(b).4

Mills-Williams v. Mapp, 67 V.I. 574, 597 (V.I. 2017) (citations omitted). Since relief

was appropriate under Civil Rule 60(b)(1) or (b)(6), the October 9, 2020 Order

should be reversed with directions to grant the motion below.

Under Civil Rule 60(b)(1), relief from a final order may be awarded due to

surprise. V.I. R. CIV. P. 60(b)(1). “The term ‘surprise,’ as used in section 473,5

3 Appellee also argues the Family Court did not abuse its discretion by deciding the motion for reconsideration without a hearing. However, Appellant never requested a hearing on the reconsideration motion [JA at 114-122], and did not raise this as an issue on appeal. Therefore, Appellant does not address this argument. 4 Since the August 17, 2020 Order was not entered after a jury or non-jury trial, Rule 60(b) applies rather than Rule 59 based on the plain language of the latter rule. 5 Section 473 of the California Civil Procedure Code is very similar to our Civil Rule 60(b)(1). It provides “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” CAL. CIV. PROC. § 473(b).

11

refers to ‘some condition or situation in which a party ... is unexpectedly placed to

his injury, without any default or negligence of his own, which ordinary prudence

could not have guarded against.’” State Farm Fire & Cas. Co. v. Pietak, 109 Cal.

Rptr. 2d 256, 263 (Cal. Ct. App. 2001).

Here, the Family Court placing Appellant under the continuing supervision of

DHS and making findings about his probation performance was totally unexpected.

The Family Court gave no advance notice that this option was under consideration

prior to issuing the August 17, 2020 Order. There was no constructive notice to

Appellant that these conditions were possible because they are not authorized by any

statute or court rule. Finally, without a hearing prior to issuance of the Order,

Appellant was not provided an opportunity be heard on these items or cross-examine

witnesses, in violation of Virgin Islands law and due process principles.

Alternatively, relief under Civil Rule 60(b)(6) was appropriate below.

Appellee is correct that relief under Civil Rule 60(b)(6) requires a showing of

extraordinary circumstances. See, Gould v. Salem, S. Ct. Civ. No. 2010-0098, 2012

WL 2122580 at * 2 (V.I. May 31, 2012) (citations omitted). Notwithstanding this

necessary showing, relief may be appropriate under Civil Rule 60(b) to address a

wide array of circumstances. See, e.g., Corrales v. Castillo, 2:07-cv-00141-RCJ-

PAL, 2009 WL 10709626 at * 2 (D. Nev. Nov. 24, 2009) (“There is no absolute

limit to the kinds of situations that can be considered extraordinary circumstances.

12

The Rule is a “grand reservoir of equitable power to do justice in a particular case.”)

(citations omitted).

Extraordinary circumstances exist when fundamental or substantial

irregularities occurred in the proceedings leading to the challenged order. See, State

v. Smith, 247 P.3d 775, 777 (Wash. Ct. App. 2011) (citations omitted) (relying on a

similarly-wording criminal procedural provision of Washington State). “The

expression ‘irregularity in the proceedings’ ... relates generally to departures by the

court, during the trial of a case, from the due and orderly method of disposition of a

case....” Fencher v. Case, 660 N.W.2d 631, (S.D. 2003) (quoting 58 Am. Jur. 2d

New Trial § 96 (1989)). As argued in Appellant’s main brief and above, the Family

Court issued findings of fact regarding Appellant’s probation performance without

a hearing and placed him under the continuing supervision of DHS without any

advance notice, effectively extending his probation indefinitely, after closing the

case. These acts and omissions of the Family Court are directly contrary to the

Virgin Islands statutes and court rules governing juvenile delinquency proceedings,

and violated Appellant’s basic due process rights to notice and an opportunity to be

heard. Therefore, the October 9, 2020 Order should be reversed.

Finally, the denial of reconsideration (or relief from judgment) is not harmless

under Rule 61. As argued in Appellant’s main brief and above, the Family Court

simply disregarded the applicable statutes and rules, as well as his due process rights

13

to notice and an opportunity to be heard before adverse findings were entered against

him, and he was transferred to the DHS for continued supervision. See, DeSaulniers

v. Mashantucket Pequot Gaming Enters., CV–AA–1998–0164 (MPTC–EA–98–

126), 1998 WL 35232485 at * 5 (M.P. Tribal Ct. Sept. 8, 1998) (deprivation of

statutory right to cross-examine and present evidence not harmless error). The

failure of the Family Court to correct its original errors via reconsideration

compounded its earlier errors, as described above and in Appellant’s main brief, and

is not harmless error.

CONCLUSION

For all of the foregoing points and authorities, Appellant requests this Court

vacate the portions of the August 17, 2020 Order of the Family Division transferring

him to DHS for supervision and making findings about his probation performance,

and remand the case with instructions for Family Division to discharge him from

probation and the jurisdiction of the Court. Appellant further asks this Court to

reverse the October 9, 2020 Order denying his motion for reconsideration, and

remand the matter with instructions to grant the same.

14

Respectfully submitted,

OGLETREE, DEAKINS, NASH,SMOAK & STEWART, LLC

Dated: April 28, 2021 By: /s/ Adam G. Christian Adam G. Christian, Esquire V.I. Bar No. 441 1336 Beltjen Road, Suite 201 St. Thomas, VI 00802-4701 Telephone: (340) 714-1235 Facsimile: (340) 714-1245 Email: adam.christian@ogletree.com

Attorneys for the Minor A.A.P.

15

CERTIFICATE OF COMPLIANCE WITH RULE 22(f)

The undersigned counsel hereby certifies that this brief is in compliance with

this Court word limitations pursuant to V.I. R. App. P. 22(f). The word count of the

instant brief, as defined by Rule 22(f) and confirmed by the undersigned’s Word

Processing Program is 3,230 words typed in 14 Times Roman Font.

/s/ Adam G. Christian Adam G. Christian

CERTIFICATE OF COMPLIANCE WITH RULE 22(l)

The undersigned counsel hereby certifies that this brief is in compliance with

V.I. S. CT R. 22(l), the undersigned attorney of record for Appellant is a member of

the bar of this Court.

/s/ Adam G. Christian Adam G. Christian

16

CERTIFICATE OF SERVICE

I hereby certify that on April 28, 2021, the foregoing document was filed using the VIJEFS, which will electronically serve a copy of the same on the following attorneys/parties of record:

Michael R. Francisco, Esquire Assistant Attorney General Office of the Attorney General 34-38 Kronprindens Gade GERS Building, 2nd Fl. St. Thomas, VI 00802 michael.francisco@doj.vi.gov

/s/ Adam G. Christian