People
v.
S.K. (In re S.K.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)Sep 12, 2018
C085193 (Cal. Ct. App. Sep. 12, 2018)

C085193

09-12-2018

In re S.K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.K., Defendant and Appellant.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PDL20160059)

A petition filed September 26, 2016, alleged that the 16-year-old minor S.K. came within the provisions of Welfare and Institutions Code section 602 in that she possessed heroin, a misdemeanor, and gave false information to a police officer, also a misdemeanor.

Undesignated statutory references are to the Welfare and Institutions Code.

At the jurisdictional hearing, the minor admitted both allegations. At the dispositional hearing, the court adjudged the minor a ward of the court, placed the minor on probation for six months, and ordered home supervision after her release from juvenile hall. The minor was ordered to, among other things, refrain from the use of controlled substances, submit to "chemical testing," complete a family reunification program that included alcohol and drug counseling, and complete 10 days of juvenile court work program and 20 hours of community service. The court ordered the minor to have no contact with two individuals, one of whom, James M., was suspected of sexually exploiting the minor and providing her with controlled substances.

A petition for violation of probation filed May 1, 2017, alleged the minor left home on April 25, 2017, without permission, used methamphetamine, and failed a drug program. The minor admitted leaving home without permission and testing positive for methamphetamine.

At the contested dispositional hearing, the court placed the minor in an out-of-state group home for treatment, finding that such placement was in the best interest of the minor and would address the minor's needs and keep her safe by separating her from James M. At such placement, the court ordered counseling for alcohol and drug abuse and for commercial sexual exploitation of children. The court ordered the minor to have no contact with James M. and that she was to contact probation if he attempted to contact her. The minor would remain in juvenile hall until placement was arranged. The minor was placed in a group home facility in Nevada on July 14, 2017.

The minor appeals. She contends the juvenile court abused its discretion and violated her due process rights in finding there was no in-state facility and an out-of-state placement was in her best interest. She claims that the requirements of Family Code section 7911.1 were not met. She also contends she is entitled to additional custody credits. We will remand for recalculation of credits. In all other respects, we will affirm the dispositional order.

DISCUSSION

I

Placement In Out-Of-State Facility

The minor contends the juvenile court's out-of-state findings were not supported by the evidence and were the result of a failure to follow the procedures for placement. We will reject the minor's claim.

From 2003 to 2016, there were 12 allegations of physical abuse and general neglect and numerous referrals to Child Protective Services (CPS) on behalf of the minor. On March 17, 2016, the minor possessed marijuana on school grounds. She was granted informal supervision during which she tested positive for marijuana, failed to abide by curfew, failed to enroll in counseling, and missed school repeatedly. The minor was also seen taking items from a pharmacy without paying. During supervision, the probation officer submitted three suspected child abuse reports. The minor admitted to being sexually assaulted by an adult male. She eventually ran away from home.

On August 28, 2016, the minor was found by officers at a park and taken to a hospital where she tested positive for including marijuana, cocaine, methamphetamine, and opiates. She explained that she had been smoking marijuana every day since she was in the fifth grade. She stated that she started drinking alcohol at 14 years of age with friends at parties. She had been using methamphetamine every other day for a few months.

A petition filed August 29, 2016, pursuant to section 300, subdivisions (b) and (g) alleged that the minor's parents had failed to protect and to support the minor. The minor was detained by the dependency court and placed in Summitview Treatment Center (Summitview) in Placerville. The minor left the facility without permission on August 30, 2016, and did not return home. The whereabouts of the minor were unknown. A section 300 bench warrant was issued that day.

At the county fairgrounds on September 22, 2016, the minor was found with a needle in her arm. The minor was " 'out of it.' " The minor was with two adult males. When confronted by police officers, the minor lied twice about her identity. The minor was arrested for giving a false name to an officer and detained in juvenile hall. During a routine search at the hall, a probation officer found two grams of heroin in the minor's bra. In her purse, she had five lighters, aluminum foil, two short straws, a glass pipe, cigarette rolling papers, a vape pen, a small scale, and a bottle containing green buds. She claimed she was holding the heroin for a male friend who was on parole. She later admitted to using heroin. She was then booked for both giving a false name and for possession of a controlled substance. The minor stated she smoked heroin for the first time after leaving Summitview and had done so a " 'few times.' " She had also used " 'acid' " and " 'mushrooms' once," snorted cocaine a " 'few times,' " and abused Norco and Xanax. She claimed her friends gave her the drugs. She also claimed her stepmother had given her marijuana for good behavior. While the minor was away from home without permission, the minor saw James M. during the daytime, ate at a shelter, camped in an area called " 'Little Mexico,' " and hung out during the day in Placerville by the bike trail and the skate park.

The section 602 petition was filed on September 26, 2016, alleging the minor's heroin possession and false identification to an officer. Based on the dependency petition and the delinquency petition, the minor fell under the juvenile court's protective and rehabilitative jurisdiction. A report filed October 17, 2016, concerning the court's dual jurisdiction (§ 241.1) recommended that the court continue proceedings in delinquency court. CPS believed there was insufficient evidence of child abuse by the minor's father. CPS confirmed they were "unable to keep [the minor] safe due to her escalating dangerous behavior including drug use, self-harm, and sexual exploitation." The minor was assessed as a high risk to reoffend. CPS identified the minor as a commercially sexually exploited child. CPS also suspected James M. was connected with exploitation of female minors. On October 28, 2016, the court continued proceedings in delinquency court.

When the minor was granted probation on December 5, 2016, she was ordered to serve 195 days in juvenile hall with 75 days' credit. The minor was released from juvenile hall after she successfully completed the family reunification program on April 4, 2017. Within an hour, James M. contacted the minor. Although the minor began a drug treatment program on April 10, 2017, she failed to complete it. She left home without permission on April 25, 2017. On April 26, 2017, the minor tested positive for amphetamine, methamphetamine, benzodiazepine, and hydromorphone. The minor admitted using methamphetamine. The minor claimed James M. had given her controlled substances and that they had smoked marijuana together. He was with her when she used heroin on September 22, 2016.

The minor was believed to have engaged in sexual acts in exchange for controlled substances and that she had been recruiting other girls to engage in sexual acts in exchange for controlled substances. James M. was believed to have been involved in the minor's exploitation. The minor had a journal wherein she recounted her sexual relationship and substance abuse with James and bragged about her ability to manipulate others. When the minor was arrested on April 27, 2017, she had six cell phones and admitted she received five of the six phones from James to stay in contact with him.

On May 12, 2017, CPS responded to an emergency call at the minor's home and found the minor's stepmother incoherent and vomiting, suffering from an extreme methadone withdrawal. The stepmother was unable to care for her two children, ages three and one, the home was in disarray, and there was marijuana residue in various places. The minor's father was not in the home at the time. At the hearing on May 15, 2017, when the minor admitted the probation violation allegations, the minor's attorney informed her that the child welfare department was concerned about returning the minor home.

At the hearing on May 22, 2017, the minor was informed that her father and stepmother were struggling with managing "things." They could not support the minor and her needs and the court could not permit her to return home.

A probation report filed June 1, 2017, recommended the minor's placement in a group home in Prescott Valley, Arizona. The minor's attorney requested a social study report with a case plan and the court so ordered.

A social study report and a section 706.6 case plan were filed on June 6, 2017. The case plan identified but rejected two in-state placement options. One was Summitview where the minor would be a flight and safety risk, having been there previously and absconding after only one day. The other in-state facility was Environmental Alternatives in Canby, California. Although remote, the facility lacked commercially sexually exploited child counseling. Another placement was previously considered, Tahoe Turning Point in South Lake Tahoe, but was rejected based on its close proximity to Placerville where the minor had associated with James M.

The probation officer recommended that the minor be placed in a facility outside California to address her "past exploitation, victimization, significant substance abuse, and family discord." The probation officer stated that the plan had been discussed over the phone with the minor's father who agreed to the plan.

The minor's attorney opposed the out-of-state placement for the minor. She argued that probation had not shown removal from the home was necessary, that there was no showing in-state facilities were unavailable or inadequate, and that the first priority was a placement close to the parents' home. The minor's attorney also argued that the case plan did not meet the requirements of section 706.6.

Petitioner's attorney argued that probation could not obtain a particular placement until there was a placement order. The probation officer explained that there were two local group homes with treatment for a commercially sexually exploited child, one in Placerville and the other in South Lake Tahoe, but were not recommended because of the close proximity to James M. Although probation did not want to remove the minor from the state, placements for sexually exploited youth were group homes out of state, usually Arizona, Wyoming, and Pennsylvania. The other one in California was in San Diego close to the Mexico border, which was rejected because of the concern for the minor's safety.

The minor's attorney agreed that CPS used out-of-state placements for sexually exploited and for dependent minors, where a determination had already been made there was a problem with the home/parents, then placement "down the street or in a different state isn't as detrimental." The minor's attorney argued that in the minor's case, a delinquent minor, there was a family connection.

The minor's father had only visited the minor one time during her 41-day stay in juvenile hall. The juvenile court hesitated to separate the minor from her family but due to safety concerns, the court concluded that the out-of-state group home was in the best interests of the minor. The case plan specified individual and group therapy, substance abuse treatment, treatment for sexual exploitation and trauma, family counseling, independent living skills, and on-site schooling. The plan prohibited visits with James M. The minor could visit with her family monthly or as often as the parent requested and the facility would assist the family in transportation.

At a review hearing on June 19, 2017, the probation officer reported that the minor had been accepted into two treatment facilities, the one previously mentioned in Arizona and the other in Nevada (Sierra Sage Academy), which was "closer" and given priority. The minor's attorney, recognizing that, as to the case plan, "a lot of things have been left blank" because the particular placement was unknown at the time, complained about the lack of assistance to the family for transportation to the Nevada placement. At a subsequent hearing, it was reported that the Nevada facility had services that would help the parents with transportation and family therapy. The minor was placed in the Nevada facility on July 14, 2017.

At the time of the minor's placement, section 727.1, subdivision (b)(1) provided that the juvenile court may not order an out-of-state placement unless in-state placements are determined to be unavailable or inadequate. On appeal, we will not find an abuse of discretion where substantial evidence supports the juvenile court's determination in light of the purposes of juvenile law, including the best interests of the minor, rehabilitation, protection and safety of the public, and punishment. (In re Khalid B. (2015) 233 Cal.App.4th 1285, 1288-1290; In re Oscar A. (2013) 217 Cal.App.4th 750, 755-757.)

When the juvenile court ordered the minor's out-of-state placement in 2017, former section 727.1 provided:
"(a) If the court orders the care, custody, and control of the minor to be under the supervision of the probation officer for foster care placement pursuant to subdivision (a) of Section 727, the decision regarding choice of placement, pursuant to Section 706.6, shall be based upon selection of a safe setting that is the least restrictive or most family like, and the most appropriate setting that meets the individual needs of the minor and is available, in proximity to the parent's home, consistent with the selection of the environment best suited to meet the minor's special needs and best interests. The selection shall consider, in order of priority, placement with relatives, tribal members, and foster family, group care, and residential treatment pursuant to Section 7950 of the Family Code.
"(b) Unless otherwise authorized by law, the court may not order the placement of a minor who is adjudged a ward of the court on the basis that he or she is a person described by either Section 601 or 602 in a private residential facility or program that provides 24hour supervision, outside of the state, unless the court finds, in its order of placement, that all of the following conditions are met:
"(1) Instate facilities or programs have been determined to be unavailable or inadequate to meet the needs of the minor.
"(2) The State Department of Social Services or its designee has performed initial and continuing inspection of the outofstate residential facility or program and has either certified that the facility or program meets the greater of all licensure standards required of group homes or of shortterm residential therapeutic programs operated in California, or that the department has granted a waiver to a specific licensing standard upon a finding that there exists no adverse impact to health and safety, pursuant to subdivision (c) of Section 7911.1 of the Family Code.
"(3) The requirements of Section 7911.1 of the Family Code are met.
"(c) If, upon inspection, the probation officer of the county in which the minor is adjudged a ward of the court determines that the outofstate facility or program is not in compliance with the standards required under paragraph (2) of subdivision (b) or has an adverse impact on the health and safety of the minor, the probation officer may temporarily remove the minor from the facility or program. The probation officer shall promptly inform the court of the minor's removal, and shall return the minor to the court for a hearing to review the suitability of continued outofstate placement. The probation officer shall, within one business day of removing the minor, notify the State Department of Social Services' Compact Administrator, and, within five working days, submit a written report of the findings and actions taken.
"(d) The court shall review each of these placements for compliance with the requirements of subdivision (b) at least once every six months.
"(e) The county shall not be entitled to receive or expend any public funds for the placement of a minor in an outofstate group home or shortterm residential therapeutic program, unless the conditions of subdivisions (b) and (d) are met." (Italics added.)
Section 727.1 was amended in 2017, effective January 1, 2018, changing the italicized words above. In subdivision (a), "family like" was changed to "familylike." More importantly, subdivision (b) was changed from "may" to "shall." (Stats. 2017, ch. 561, § 267.)

The juvenile court properly found the minor's best interest would be served by an out-of-state group home placement and that in-state placements were inadequate to meet the needs of the minor. The in-state facilities were too close to Placerville and James M. or lacked the type of therapeutic counseling the sexually exploited minor required or found to be unsafe (too close to the Mexican border). "The court need not determine all in-state facilities are either unavailable or inadequate [citation]. The mere existence of other facilities in California does not mean the court abused its discretion by ordering out-of-state placement." (In re Oscar A., supra, 217 Cal.App.4th at p. 757.) While the court must consider the proximity of the placement to the minor's family in order to meet the goal of family reunification and rehabilitation, "a minor's special needs and best interests may justify a distant placement." (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1156; §§ 706.6, 727.1.)

Family Code section 7911.1, subdivision (d) provides: "A county shall be required to obtain an assessment and placement recommendation by a county multidisciplinary team prior to placement of a child in an out-of-state group home facility." (Italics added.) The case plan did not specify the Nevada facility and a particular placement had not been chosen. The petitioner's attorney explained that probation could not obtain a placement until there was a placement order. Although not in the case plan, probation did assess the Nevada facility prior to the minor's actual placement.

On our own motion, we take judicial notice of the fact that the distance between Placerville, California, where the minor's family resides, to Minden, Nevada, where the out-of-state placement facility (Sierra Sage Academy) is located, is about 84 miles. (Evid. Code, § 452, subd. (h); People v. Posey (2004) 32 Cal.4th 193, 215, fn. 9; see In re Nicole H., supra, 244 Cal.App.4th at p. 1153.) While the distance is farther than "down the street," the facility was available to assist the minor's family in transportation for visiting and therapy. We conclude that the minor has failed to demonstrate that the juvenile court erred.

II

Computation Of Custody Credits

The minor contends and the People concede that the minor is entitled to additional custody credit for the time she spent in juvenile hall pending transfer to the out-of-state group home. At the dispositional hearing on June 6, 2017, the court awarded 41 days of credit. The minor remained in juvenile hall until she was placed in Nevada on July 14, 2017. The minor is entitled to additional credit. We will remand for the juvenile court to calculate the predisposition credits. (In re Edward B. (2017) 10 Cal.App.5th 1228, 1238-1239; In re J.M. (2009) 170 Cal.App.4th 1253, 1255-1256.)

DISPOSITION

The matter is remanded to the juvenile court to calculate the minor's predisposition credits. In all other respects, the order of the juvenile court is affirmed.

/s/_________


Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Hoch, J.