Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJD066573)
THE COURT APPEAL from an order of the Superior Court of Tulare County. Hugo J. Loza, Judge. Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J., and Meehan, J.
The court continued appellant Adrian H. as a ward of the court (Welf. & Inst. Code, § 602) after he admitted violating his probation (§ 777, subd. (a)(1)). On appeal, appellant contends the juvenile court deprived him of his state and federal constitutional right to due process by committing him to the Tulare County Long Term Program (LTP) in juvenile hall without an adequate case plan and without making educational findings. We affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Appellant lived with his grandmother who adopted him when he was six years old. He was first adjudged a ward of the court on August 14, 2013, based on his adjudication for assault on school grounds (Pen. Code, § 241.2, subd. (a)). Appellant was subsequently adjudicated of numerous offenses in four separate petitions, including three felonies, making criminal threats (Pen. Code, § 422) and false imprisonment (Pen. Code, § 236), each with a use of a deadly weapon enhancement (Pen. Code, § 12022, subd. (b)(1)), and resisting an executive officer (Pen. Code, § 69). He also violated his probation (§ 777, subd. (a)) four times, including the violation involved in the instant case. Appellant's prior dispositions included two separate commitments to the LTP.
On March 24, 2015, appellant admitted a charge of misdemeanor vandalism. On April 9, 2015, the court placed appellant on probation for three years with certain terms and conditions and committed him to the LTP, his second commitment there, for a period of 240 to 365 days.
On November 30, 2015, appellant was released from custody into the "Aftercare" portion of the LTP.
On February 11, 2016, appellant absconded from his grandmother's residence.
On February 24, 2016, the probation department filed a "NOTICE OF VIOLATION OF PROBATION" alleging appellant violated his probation by absconding from his grandmother's residence, and by failing to attend school regularly, obey school rules, attend mental health appointments, and obey the gang terms of his conditions of probation.
On April 18, 2016, appellant was arrested.
On April 20, 2016, appellant, who was then 17 years old, admitted violating his probation as alleged by the probation department.
Appellant's Supplemental Probation Report
On May 2, 2016, the probation department filed a supplemental probation report that included information from extensive, separate interviews with appellant and his grandmother. In addition to containing most of the information detailed above, appellant's supplemental probation report indicated that at age 14 he began using marijuana daily and a gram of spice, occasionally. At age 16, he began drinking alcohol and consuming cough syrup. Appellant denied being affiliated with a gang, but admitted hanging out with his cousin who was a Crip gang associate.
The report also indicated that appellant was in the 11th grade at Superior Community School in Tulare but was failing all his classes. Appellant had been diagnosed with a specific learning disability and was enrolled in special education classes. Appellant had an active Individual Education Plan (IEP) that was completed on December 11, 2015. During the brief time he attended Superior Community School, appellant had 10 disciplinary referrals for refusing directions, incomplete assignments, disruptive behavior, visiting pornographic websites, and threatening physical violence. On January 19, 2016, appellant was suspended for five days when he threatened a Blood gang member. On January 27, 2016, he was suspended for a week because of behavioral issues. Appellant attended only 25 out of 75 school days. The report did not recommend the court limit the right of appellant's grandmother to make educational decisions for him.
The supplemental probation report also indicated that although appellant was in good physical condition, he had mental health issues. Appellant had been diagnosed with oppositional defiant disorder, but did not comply with his mental health treatment and had never been prescribed medication. A prior report indicated appellant had also been diagnosed with mood disorder NOS, and attention deficit hyperactivity disorder combined type. Appellant had been prescribed Risperdal while at juvenile hall.
The report had a completed case plan attached to it that was signed by appellant's probation officer and her supervisor. The plan had signature lines for appellant and his grandmother located under a statement where they could attest that they reviewed the plan, understood its contents, and received a copy. Under the signature lines was a section where the person preparing the form could indicate that appellant's grandmother reviewed the plan but refused to sign the form and the reason for the refusal. Below that was a section where the preparer could indicate that appellant's grandmother refused to participate in the case plan and to sign the form and the reason for the refusal. Appellant and his grandmother, however, did not sign the form and neither of the two sections noted above were filled out.
Appellant's supplemental probation report recommended that he be recommitted to the LTP.
The Disposition Hearing
On May 4, 2016, the court aggregated time from prior petitions, set appellant's maximum term of confinement at eight years 11 months, and again committed appellant to the LTP for a period of 240 to 365 days. The court also signed a findings and order form that had the following paragraphs checked: "The court has read and considered the social study report prepared by the probation officer and any other relevant evidence. [¶] The child has been detained and is at risk of entering foster care. The probation officer believes the child will be able to return home, and the social study includes a case plan as described [in] the Welfare and Institutions Code section 636.1." Prior to concluding the hearing, the court stated appellant had attention deficit hyperactivity disorder (ADHD) and that it was going to refer him to a psychiatrist so he could be prescribed appropriate medication.
The Adequacy of Appellant's Case Plan
Appellant contends that because neither he nor his grandmother signed his case plan and no explanation was provided for their failure to sign the plan, this indicates they were not involved in preparing the plan and did not review it with the probation officer and/or receive a copy. Thus, according to appellant, the court denied him his right to due process requiring remand for further proceedings because the court committed him to placement with a case plan that was "incomplete, unreliable, and tantamount to [having] no current case plan at all."
Appellant concedes that defense counsel did not object to the inadequacy of his case plan. Nevertheless, citing People v. Williams (1998) 17 Cal.4th 148, 161-162, footnote 6 (Williams), appellant contends this court may exercise its discretion to review this issue for the first time because it is pertinent to a proper resolution of his case. Alternatively, appellant contends he was denied the effective assistance of counsel by defense counsel's failure to object to the inadequacy of his case plan. We reject these contentions.
Appellant also cites this court's opinion in In re L.S. (1990) 220 Cal.App.3d 1100 and In re Devin J. (1984) 155 Cal.App.3d 1096 to contend that the court's error in failing to comply with section 706.6 is reversible per se or, at minimum, greatly prejudicial requiring remand to allow appellant and his grandmother to review and sign his case plan. We do not reach the issue of prejudice because we will conclude that appellant's case plan was adequate.
"It is well established that procedural errors may not be raised at the appellate level if they were not raised in the trial court level. '[E]ven constitutional rights, including those of a minor in the area of juvenile court procedure, will ordinarily be waived by silence, i.e., by their nonassertion.' " (In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344.) Thus, we conclude that appellant forfeited the issue. (See In re Sheena K. (2007) 40 Cal.4th 875, 880-885; In re Travis W. (2003) 107 Cal.App.4th 368, 379; In re Josue S. (1999) 72 Cal.App.4th 168, 170-173.) However, if this issue were properly before us, we would reject it.
Williams does not compel a different conclusion. In Williams, the Supreme Court held that, "An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party." (Williams, supra, 17 Cal.4th at p. 161, fn. 6.) However, we decline to do so here.
We review the juvenile court's disposition orders for abuse of discretion. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) "An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law." (Ibid.) Where there is substantial compliance with the social study requirement, i.e., the court has information before it sufficient to make a proper disposition of the case, "the error complained of is not of constitutional dimension" and the court's order will not be set aside unless the error results in prejudice to the minor. (In re Eugene R. (1980) 107 Cal.App.3d 605, 615, overruled on other grounds in Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 115.)
The probation officer must prepare a case plan for minors who are detained if the court finds they are at risk of entering foster care. (§ 636.1, subds. (b) & (c), accord, Cal. Rules of Court, rule 5.785(c).) The requirements for a minor's case plan vary depending on whether the probation officer believes the minor can safely return to his home or that foster care placement is the most appropriate disposition. (§ 636.1, subds. (b) & (c), accord, rule 5.785(c)(4) & (5).)
All further rule references are to the California Rules of Court.
"If ... the probation officer believes that foster care placement is the most appropriate disposition, the case plan shall include all the information required by section 706.6." (§ 636.1, subd. (c), italics added.) Similarly, section 706.5, subdivision (a), provides that "[i]f placement in foster care is recommended by the probation officer, ... the social study prepared by the probation officer ... shall include a case plan, as described in Section 706.6." (Italics added.) (Accord, rule 5.785(c)(5).)
Section 706.6 identifies the information required in a case plan where foster care is being considered. Subdivision (p) of this section requires the case plan to include:
"A statement that the parent or legal guardian, and the minor have had an opportunity to participate in the development of the case plan, to review the case plan, to sign the case plan, and to receive a copy of the plan, or an explanation about why the parent, legal guardian, or minor was not able to participate or sign the case plan." (§ 706.6, subd. (b)(1).)
In contrast, if the probation officer believes reasonable efforts by the minor and his parents will enable the minor to safely return home, "the case plan must include the elements described in section 636.1[, subdivision] (b)." (Rule 5.785(c)(4), accord, § 636.1, subd. (b).) Section 636.1, subdivision (b), provides "If the probation officer believes that reasonable efforts by the minor, his or her parent or legal guardian, and the probation officer will enable the minor to safely return home, the case plan shall focus on those issues and activities associated with those efforts, including a description of the strengths and needs of the minor and his or her family and identification of the services that will be provided to the minor and his or her family in order to reduce or eliminate the need for the minor to be placed in foster care and make it possible for the minor to safely return to his or her home."
Section 636.1, subdivision (b), however, does not require a case plan prepared pursuant to its provisions to contain the information contained in section 706.6. Thus, when a minor is at risk of entering foster care and the probation officer does not recommend foster care placement, the minor's case plan does not have to contain the statement or explanation required by section 706.6, subdivision (p), on which appellant's contention is based.
Appellant's case plan did not have to comply with section 706.6 because his probation officer recommended a commitment to the LTP, which is a detention facility and not a foster care placement. (Cf. In re A.A. (2016) 243 Cal.App.4th 765, 774 [commitment to a juvenile detention facility like the Department of Corrections and Rehabilitation, Juvenile Justice Division, is not a foster care placement].) Since appellant's case plan did not have to comply with section 706.6, subdivision (p), it was not deficient because it did not have the statement or explanation required by that subdivision. Further, neither subdivision (p) nor any other subdivision of section 706.6 required appellant and/or his grandmother to sign his case plan. Thus, it cannot be inferred from the absence of either of these signatures on appellant's case plan that appellant and his grandmother did not participate in developing appellant's case plan or that they did not review it or receive a copy.
Moreover, when a minor is detained and is at risk of being place in foster care, as occurred here, rule 5.785(c)(2) requires the court to consider the minor's case plan and find either that "[t]he probation officer solicited and integrated into the case plan the input of the [minor and the minor's family] ..." (rule 5.785(c)(2)(A)) or that "[t]he probation officer did not solicit and integrate into the case plan the input of the [minor and the minor's family]...." (rule 5.785(c)(2)(B)). If the latter situation occurs, "the court must order that the probation officer solicit and integrate into the case plan the input of the [minor and the minor's family], ... unless the court finds that each of these participants was unable, unavailable, or unwilling to participate." (Ibid.)
At the disposition hearing, the court did not order the probation officer to "solicit and integrate" the input of appellant and his grandmother into his case plan, which it was required to do if it found that the probation officer did not solicit and integrate their input into the plan. (Rule 5.785(c)(2)(B).) Further, rule 5.785(c)(2)(B) does not require the court to expressly state any of its findings on the record and it is presumed that official duty is regularly performed (Evid. Code, § 664). Thus, we must presume the court found either that the probation officer solicited and integrated the input of appellant and his grandmother into appellant's case plan or that appellant and his grandmother were "unable, unavailable, or unwilling to participate" in creating the case plan. However, neither of these findings affected the validity of appellant's case plan. Accordingly, we reject appellant's contention that his case plan "was incomplete, unreliable and tantamount to [having] no current plan at all."
"To demonstrate ineffective assistance of counsel, a defendant must show that counsel's action was, objectively considered, both deficient under prevailing professional norms and prejudicial." (People v. Hinton (2006) 37 Cal.4th 839, 876.) Since appellant has shown neither, we also reject his ineffective assistance of counsel claim.
The Court Made the Requisite Educational Findings
Judicial Council form JV-535 (form 535) allows the court to appoint a responsible adult as the holder of minor's educational rights. (Rule 5.650.) Appellant contends it was mandatory for the court to complete form 535 because the court should have been aware that appellant has special educational needs. He further contends that the court's failure to mention this form or his special educational needs at his disposition hearing and the absence of a form 535 in the record indicates the court did not consider his educational needs before committing him to the LTP. Thus, according to appellant, the court denied him his right to due process in committing him to the LTP, requiring reversal of the dispositional order, because the court's failure to make educational findings makes it uncertain whether he will receive the appropriate education and services to which he is entitled. We disagree.
Appellant concedes he did not object on these grounds to the court's commitment of him to the LTP. Thus, we conclude that appellant forfeited this issue. (In re Sheena K., supra, 40 Cal.4th 875, 880-885.) Alternatively, we conclude that appellant's contention lacks merit.
We, again, decline to exercise our discretion to consider the merits of this issue.
In view of this, we also reject appellant's contention that defense counsel provided ineffective representation by his failure to preserve this issue by interposing an appropriate objection.
Although the parties cite to rule 5.790(f)(5), it is clear from their arguments that they meant to cite to rule 5.790(h)(5).
"The court may limit the control exercised over the ward by a parent or guardian. Orders must clearly specify all limitations. In particular, the court must consider whether it is necessary to limit the rights of the parent or guardian to make educational or developmental-services decisions for the [minor]. If the court limits those rights, it must follow the procedures in rules 5.649-5.651." (Italics added.)
Rule 5.650(a), in pertinent part, provides:
"Whenever [the court] limits ... the rights of a parent or guardian to make educational or developmental-services decisions for a [minor], [it] must use form JV-535 to appoint a responsible adult as educational rights holder ...." (Italics added.)
Neither of these rules mandate that the court fill out form 535 if it does not limit the rights of a minor's parent to make educational decisions for the minor. Nor has appellant cited any authority that does. Thus, there is no merit to his contention that failure of the court to mention form 535 and the absence of a form in the record indicates the court did not consider his educational needs before committing him to the LTP.
Further, rule 5.651(b)(2), in pertinent part, provides:
"At the dispositional hearing ... the court must: [¶] (A) Consider and determine whether the [minor's] ... educational, physical, mental health, and developmental needs, including any need for special education and related services, are being met[.]"
The record establishes that the juvenile court complied with these requirements. It read and considered the social study prepared by the probation officer, including the case plan that was part of the supplemental probation report. It ordered appellant to attend school regularly, and to attend community school or any school program assigned by the probation officer or school district until completion of the program, even if appellant had to attend after he was 18 years old. The court ordered him to participate on an individual, group, or family basis in alcohol, drug, or mental health counseling, and in all services offered through the LTP, as directed by the probation officer. It noted that appellant suffered from ADHD and stated it was going to refer appellant to a psychiatrist so he would receive appropriate medication. The court also implicitly approved the probation officer's case plan, which indicated that appellant had an active IEP that had been completed in December 2015. These circumstances establish that the court considered his educational needs. Further, since we concluded in the previous section that appellant's case plan was adequate, it follows that the court did not deny appellant his right to due process when it committed him to the LTP.
In view of the foregoing, we also reject appellant's ineffective assistance of counsel claim because he had not shown that counsel's representation was both deficient and prejudicial. (People v. Hinton, supra, 37 Cal.4th at p. 876.) --------
The order is affirmed.