Opinion
A158205
02-25-2021
In re TERRELL O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TERRELL O., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J0101545)
In this case, 20-year-old Terrell O. appeals from the juvenile court's order deeming him ineligible for benefits under the California Fostering Connections to Success Act of 2010 and terminating jurisdiction. We conclude the court did not abuse its discretion and affirm.
Assembly Bill No. 12 (2009-2010 Reg. Sess.); Assembly Bill No. 212 (2011-2012 Reg. Sess.). Assembly Bill No. 12 (or Assem. Bill No. 12) "permits a juvenile court to continue to exercise dependency jurisdiction and provide foster care benefits to eligible nonminors until the age of 21." (In re A.A. (2016) 243 Cal.App.4th 765, 773 (A.A.).) Terrell turns 21 in late March.
FACTUAL AND PROCEDURAL BACKGROUND
In 2002—when Terrell was two years old—the court declared him a dependent (Welf. & Inst. Code, § 300). Later, the court terminated parental rights. Terrell is autistic, and intellectually and developmentally disabled.
Undesignated statutory references are to the Welfare and Institutions Code. We incorporate the factual and procedural background from our unpublished opinion in Terrell's prior appeal, In re Terrell O. (Mar. 19, 2018, A151385). We deny Terrell's request for judicial notice of a "voluntary re-entry agreement for extended foster care" because he has not established that document was before the juvenile court. (People v. Sanders (2003) 31 Cal.4th 318, 323, fn. 1.)
A.
Wardship Proceedings
In 2015, Terrell was living in a level 14 group home. After he attacked another resident, the prosecution filed a juvenile wardship petition. The court sustained allegations that Terrell committed several crimes, including assault likely to cause great bodily injury. It declared wardship (§ 602), placed Terrell on juvenile probation, and vacated his dependency (§ 737).
The probation department had difficulty finding an appropriate placement to meet Terrell's cognitive and developmental needs. Eventually, in May 2016, the court committed Terrell to the former Division of Juvenile Justice (DJJ). In January 2018, Terrell was discharged from DJJ and released to county supervision.
B.
Probation Violations and Transition Jurisdiction
In 2018, shortly before Terrell's 18th birthday, the court declared Terrell a nonminor dependent in a transitional independent living program and provided him with Assembly Bill No. 12 benefits. In April 2018, Terrell was placed with his mother pursuant to a supervised independent living placement. That placement ended after a few weeks, however, when Terrell got into a verbal altercation with his mother, destroyed her property, and threatened to kill her. Terrell admitted violating probation and was detained at juvenile hall.
In July 2018, Terrell was placed at an adult residential facility. Terrell left that placement without permission and the court issued an arrest warrant. Terrell eventually returned to the residential facility but violated probation by threatening staff and making unwarranted 911 calls. Terrell admitted the probation violations. The court terminated the placement and ordered Terrell detained at county jail. Later, Terrell was placed at a youth shelter.
The court terminated juvenile probation and delinquency jurisdiction (§ 602) and designated Terrell a nonminor dependent within the court's transition jurisdiction (§ 450). Thereafter, Terrell was placed on adult probation for trespassing. A few months later—in January 2019—the probation department lost contact with Terrell and recommended terminating probation.
C.
Termination of Assembly Bill No. 12 Benefits and Jurisdiction
In June 2019, Terrell—then 19 years old—was arrested and charged with robbery, elder abuse, and disturbing the peace. Terrell was detained in jail. Two months later, the probation department recommended terminating jurisdiction and Terrell's Assembly Bill No. 12 benefits. It alleged maintaining jurisdiction was not in Terrell's best interest because he was not meeting Assembly Bill No. 12's "eligibility criteria" and could not "participate in his case plan" or "benefit" from Assembly Bill No. 12 services in jail. Probation reported Terrell was "not enrolled in college or employed" but had "minimally participated in activities that remove[d] barriers until his arrest. However, he struggled with his independence and poor decision making." The probation department noted it was "uncertain when Terrell would be released" from custody.
In opposition, Terrell argued he was "categorically eligible" for Assembly Bill No. 12 benefits—notwithstanding his incarceration—because he had a "qualifying medical condition." Terrell also argued terminating jurisdiction was not in his best interest under section 391. In a supporting declaration, Terrell's counsel averred Terrell "will be rendered homeless if he is released from custody without access to housing support provided by AB 12."
At a hearing, Terrell's counsel urged the court to continue Assembly Bill No. 12 benefits. When the court noted Terrell was "not in approved housing" and had not been "for quite awhile," counsel acknowledged Terrell was in jail but argued being in "an approved placement" was not required because Terrell had a disability. Counsel also suggested Terrell might be released from custody in the near term.
Terrell expressed interest in attending the hearing in person but said he would be unable to do so because he was "detained . . . on [a pending] Adult matter." At the hearing, counsel for Terrell noted he was "not present" but did not object to the hearing proceeding in his absence.
The court terminated Terrell's Assembly Bill No. 12 benefits, concluding he was not eligible for such benefits while incarcerated. It noted Terrell could reapply for benefits "when he's not in a custodial status." After concluding that maintaining jurisdiction was not in Terrell's best interest, the court terminated jurisdiction.
DISCUSSION
I.
Assembly Bill No. 12 Benefits
Assembly Bill No. 12 authorizes the juvenile court to provide foster care benefits to eligible nonminor dependents until age 21. (A.A., supra, 243 Cal.App.4th at p. 773.) As relevant here, section 11400, subdivision (v) defines nonminor dependent as an individual under the court's transition jurisdiction who satisfies the following three criteria: (1) the individual must be under 21 years old; (2) the individual must be "in foster care under the placement and care responsibility of the county welfare department, [or] county probation;" and (3) the individual must be " 'participating in a transitional independent living case plan.' " (In re A.F. (2013) 219 Cal.App.4th 51, 55; In re H.C. (2017) 17 Cal.App.5th 1261, 1264.)
Here, Terrell did not qualify as a nonminor dependent under section 11400, subdivision (v) because he was not "in foster care." To be in "foster care," a nonminor dependent "must be placed in one of the following: [¶] (1) An approved or licensed home . . . or an 'exclusive-use home' . . . ; [¶] (2) A 'licensed group home,' 'out-of-state group home,' or transitional housing . . . ; or [¶] (3) 'An approved supervised independent living setting for nonminor dependents.' " (A.A., supra, 243 Cal.App.4th at p. 774, citations omitted; see also § 11402 [placement requirements for Assem. Bill No. 12 eligibility].)
An individual in custody at a "detention facility" is not "in foster care" under the statutory scheme. (A.A., supra, 243 Cal.App.4th at p. 774.) It is undisputed that county jail is not a " 'home' " or " 'group home,' " or a " 'supervised independent living setting for nonminor dependents' " within the meaning of the relevant statutes. It is also undisputed that when the court made the Assembly Bill No. 12 eligibility determination, Terrell had been in custody in county jail for two months, with no release date on the horizon. Because Terrell was incarcerated and not "in foster care" under the statutory scheme, he was not eligible for Assembly Bill No. 12 benefits. (A.A., at p. 774 [individual committed to DJJ was not " 'in foster care' "]; In re Joshua S. (2007) 41 Cal.4th 261, 275 [children not in approved housing under section 11402 were not eligible for Assem. Bill No. 12 benefits].)
Terrell claims his "pretrial custodial status was not relevant" to the Assembly Bill No. 12 eligibility determination. We disagree. As Terrell acknowledges, Assembly Bill No. 12 "aid may be suspended when the nonminor dependent no longer resides in an eligible facility, . . . or is otherwise not eligible for . . . benefits." (§ 11403, subd. (e).)
Terrell's reliance on In re M.W. (2018) 26 Cal.App.5th 921, 927-928 (M.W.) is unavailing. There, the juvenile court mistakenly believed it was required to terminate jurisdiction after erroneously concluding the nonminor was not an approved placement. (Id. at p. 923.) The appellate court reversed, concluding the nonminor's living situation—with his former foster mother—could qualify as approved placement under the statutory scheme. (Id. at pp. 931, 923.) M.W. also held the juvenile "court was not required to terminate dependency jurisdiction simply because [the nonminor] was not, for the moment, in an approved . . . placement." (Id. at pp. 932-933.)
The M.W. court noted the distinction between a nonminor's Assembly Bill No. 12 eligibility and the court's authority to retain jurisdiction. It explained that juvenile courts may suspend Assembly Bill No. 12 benefits where an individual does "not meet the statutory definition of a nonminor dependent . . . , or is not in an approved placement" but that courts may "retain dependency jurisdiction over nonminors even when they do not meet the statutory requirements for" Assembly Bill No. 12 benefits. (M.W., supra, 26 Cal.App.5th at pp. 932, 933.)
M.W. does not establish the court's Assembly Bill No. 12 eligibility determination was erroneous; to the contrary, M.W. supports the conclusion we reach here: that a court may suspend Assembly Bill No. 12 aid where an individual is not " 'in foster care' " under the statutory scheme. (M.W., supra, 26 Cal.App.5th at p. 932.) Additionally, M.W. is distinguishable. Unlike M.W., there is no possibility that incarceration in county jail may qualify as an approved placement under the statutory scheme.
Next, Terrell contends he was eligible for Assembly Bill No. 12 benefits because he satisfied one criteria in section 11403, subdivision (b), which lists requirements nonminor dependents must satisfy to receive financial support under Assembly Bill No. 12. In re K.L. (2012) 210 Cal.App.4th 632 considered—and rejected—this argument. There, the appellate court explained that section 11403, subdivision (b) "does not define a nonminor dependent; rather, it requires that an individual, who already satisfies the criteria to be defined as a nonminor dependent, meet one of five listed conditions to qualify for financial support." (K.L., at pp. 638-639, italics added.) As in K.L., Terrell cannot rely on section 11403, subdivision (b) to qualify as a nonminor dependent. (K.L., at p. 638.)
We conclude the court did not err by declining to extend Assembly Bill No. 12 benefits to Terrell, who did not meet the statutory definition of nonminor dependent. (A.A., supra, 243 Cal.App.4th at p. 773; M.W., supra, 26 Cal.App.5th at p. 932.)
II.
Jurisdiction
"Dependency jurisdiction does not automatically terminate at age 18." The juvenile dependency scheme "provide[s] that '[t]he court may retain jurisdiction over any person who is found to be a ward or a dependent child of the juvenile court until the ward or dependent child attains the age of 21 years.' " (In re Shannon M. (2013) 221 Cal.App.4th 282, 292.) The party seeking to terminate jurisdiction bears the burden of proof, "and the decision to retain or terminate jurisdiction generally remains within the sound discretion of the juvenile court." We reverse only where the court has 'exceeded the bounds of reason. (Id. at pp. 289, 301.) "Legal issues underlying the court's decision, such as the correct interpretation of the relevant statutes governing nonminor dependents, are reviewed de novo." (In re H.C., supra, 17 Cal.App.5th at p. 1266.)
Section 391 authorizes the juvenile court to terminate nonminor dependency jurisdiction under three circumstances, including where the nonminor is not participating in the transitional independent living case plan. (§ 391, subds. (e), (f).) Section 452 authorizes the juvenile court to terminate nonminor transition jurisdiction for an individual "who is eligible for foster care placement pursuant to Section 11403 to remain in foster care" under two circumstances, including where the nonminor cannot be located or does not wish to remain a nonminor dependent. (§ 452, subd. (b).) Before terminating jurisdiction under either statute, the court must consider whether maintaining jurisdiction would be in the nonminor's best interest. (In re Shannon M., at pp. 288-289; §§ 391, subd. (d)(2), 452, subd. (c)(2); Cal Rules of Court, rule 5.555(c)(1)(A).)
Terrell challenges the termination of jurisdiction on several grounds. First, he contends the court erred by conducting the termination hearing under section 391, rather than section 452. The county concedes the court erroneously conducted the hearing pursuant to section 391 but argues any error was harmless. We agree.
In the lower court, counsel for Terrell noted hearings to terminate transition jurisdiction are governed by section 452, but also urged the court to apply section 391 and conclude terminating jurisdiction was not in his best interest. At the outset of the hearing, when the court announced it was conducting a section " '391' hearing," Terrell's attorney said Terrell was under the court's transition jurisdiction but did not object to the hearing proceeding under section 391. The county does not argue invited error. It explains that because Terrell was subject to transitional jurisdiction, section 452 applied. We assume without deciding that section 452 applies.
As the county observes, a threshold requirement to maintain jurisdiction under section 452 is that a nonminor dependent be "eligible for foster care placement pursuant to Section 11403." (§ 452, subd. (b).) At the time of the hearing, Terrell was incarcerated, and not in an eligible foster care placement. (§§ 11402, 11403, subd. (b); In re Joshua S., supra, 41 Cal.4th at p. 275.) Because Terrell did not meet this threshold requirement, any error in failing to conduct the hearing under section 452 was harmless.
Terrell argues there is insufficient evidence terminating jurisdiction was in his best interest. We disagree. Substantial evidence supports the court's finding that maintaining jurisdiction was not in Terrell's best interest because the juvenile system was not equipped to meet his needs. Terrell had been a under the court's jurisdiction for 17 years. During that time period—and while receiving a wide array of services and support—Terrell had committed numerous crimes, violated probation, and left several approved housing placements. When the court terminated jurisdiction, Terrell was incarcerated on felony charges.
We are sympathetic to the numerous challenges Terrell faced as a result of his intellectual and developmental disabilities, but we cannot conclude the court abused its discretion in terminating jurisdiction. (In re Nadia G. (2013) 216 Cal.App.4th 1110, 1120 [maintaining jurisdiction may not be required where nonminor dependent rejects "nearly all efforts of assistance" and where the department is "working harder than [the nonminor dependent] to maintain dependency jurisdiction"]; In re Holly H. (2002) 104 Cal.App.4th 1324, 1337-1338 [no abuse of discretion in terminating dependency jurisdiction].)
Finally, Terrell contends the court erred by conducting the termination hearing in his absence. (§ 452, subd. (c)(1) [before termination hearing, probation must "[e]nsure that the nonminor dependent is present in court" or "document the reasonable efforts it made to locate the nonminor dependent when the nonminor dependent is not available to appear"].) We address this claim on the merits notwithstanding Terrell's failure to raise it at the termination hearing. We conclude any assumed failure to comply with section 452, subdivision (c) is harmless because it is not reasonably probable Terrell would have achieved a more favorable outcome had he attended the hearing. (In re Jesusa V. (2004) 32 Cal.4th 588, 625 [violation of statute requiring personal appearance is subject to harmless error under People v. Watson (1956) 46 Cal.2d 818, 836].)
At the termination hearing, Terrell was represented by counsel, who urged the court to continue jurisdiction, and who explained the potential ramifications if the court declined to do so. Additionally, the court was familiar with Terrell—and knowledgeable about his situation—because it had presided over Terrell's case for several years. Under the circumstances, Terrell's presence at the hearing would not have resulted in a different outcome. (See D.E. v. Superior Court (2003) 111 Cal.App.4th 502, 513 [violation of statutory right to attend dispositional hearing in person was harmless].)
DISPOSITION
The judgment is affirmed.
/s/_________
Seligman, J. WE CONCUR: /s/_________
Simons, Acting P. J. /s/_________
Needham, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.