Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV31256
ELIA, J.On August 17, 2009, the juvenile court committed appellant to the Division of Juvenile Justice (DJJ) for acceptance following the failure of a ranch placement. (See Welf. & Inst. Code, §§ 602, 734, 777.) On appeal, appellant asserts that the juvenile court abused its discretion in finding the alleged violation true and finding that the DJJ would probably benefit him. We affirm.
The DJJ includes the Division of Juvenile Facilities (DJF). (See Welf. & Inst. Code, § 736, Gov. Code, § 12838.3.)
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
A. Procedural History
Appellant had a number of previously sustained delinquency petitions. In case number JV31256A, appellant admitted committing the two misdemeanor offenses alleged in a petition filed on March 30 2006: an unauthorized entry of a dwelling on February 5, 2006 (Pen. Code, § 602.5, subd. (a)) and a battery on February 16, 2006 (Pen. Code, §§ 242-243, subd. (a)). The probation report indicated that the unauthorized entry involved appellant entering the home of his ex-girlfriend and hiding in her bedroom closet, which caused her to wake up from sleep. The battery occurred when appellant ran into his mother "in a violent manner." The probation report further indicated that appellant had admitted touching his 10-year-old younger sister in an inappropriate manner in "her private area."
A supplemental probation report filed June 8, 2006, indicated that appellant had received a psychological evaluation, which had resulted in a provisional diagnosis of a mild Bipolar II disorder and a diagnosis of Disruptive Behavior Disorder, NOS. The report parenthetically indicated "Rule/out Attention Deficit/Hyperactivity Disorder, Combined Type." The probation report stated that, while appellant was living at a temporary housing facility, "Our House, " appellant had been disruptive, he had made inappropriate comments to other students, he had solicited younger female students, and he had left school without permission. Appellant had moved into the Bill Wilson Center on April 20, 2006. There staff had observed appellant engage in "aggressive and sexual behavior." He had frightened peers and repeatedly made threatening comments to the center's case manager.
On June 8, 2006, the juvenile court adjudged appellant a ward of the juvenile court, determined that appellant's welfare required removal from parental physical custody and his return would be detrimental to his welfare, and ordered him committed to the care, custody, and control of the probation officer for suitable placement. The order of probation included the following conditions: "minor obey all rules and regulations of the facility or home in which he is placed" and "minor and parents... participate in a counseling program or other treatment services, as deemed appropriate by the Probation Officer." The court made an order permitting him to stay at the Bill Wilson Center while he awaited placement.
On June 26, 2006, a new petition alleging a misdemeanor vandalism offense (Pen. Code, § 594, subds. (a), (b)(2)(A)) was filed (JV31256B). Also, on June 26, 2006, a section 777 notice was filed (JV31256C). The notice alleged that on June 22, 2006, appellant had absconded from Bill Wilson Center with a female resident. A probation officer's detention hearing report stated that, before leaving the Bill Wilson Center on June 22, 2006, appellant had gotten angry and punched two holes in the walls of the center.
In case number JV31256B, appellant admitted committing the alleged misdemeanor vandalism offense (Pen. Code, § 594, subds. (a), (b)(2)(A)). The section 777 notice (JV31256C) was dismissed without prejudice.
In case number JV31256B, the juvenile court continued appellant as a ward of the juvenile court and ordered him to pay victim restitution to the Bill Wilson Center. The court ordered "all prior orders not in conflict with today's orders to remain in full force and effect." His placement was not changed. On August 17, 2006, the juvenile court approved a new placement in the Children's Therapeutic Communities (CTC) in Riverside, California, effective August 10, 2006.
On April 1, 2008, a section 602 petition was filed against appellant in the Riverside County Superior Court. It alleged that appellant had committed an assault in violation of Penal Code section 245, subdivision (a), on March 31, 2008 in Riverside County. On April 2, 2008, appellant admitted the petition's allegation, as amended. The Riverside County Superior Court ordered the section 602 case transferred to Santa Clara County for disposition.
A probation report, dated April 11, 2008, prepared for the transfer-in, indicated that appellant had assaulted a male staff member of the CTC, where he had been placed since August 2006. The incident had occurred at approximately 1:15 a.m. on March 31, 2008. As the victim left his office, appellant struck him with a picture frame and then hit him with a folding metal chair. Appellant then ran out the front door of the facility. Appellant told a sheriff's deputy that his plan had been to knock the victim out, take the victim's cell phone and car keys, steal the victim's car, and drive to his girlfriend's house in Orange County.
Transfer-in proceedings in case number JV31256D were held in Santa Clara County Superior Court on April 11, 2008 and a disposition hearing was scheduled.
The supplemental probation report, filed August 13, 2008, recommended that the court commit appellant to the CDCR. It indicated that appellant had been "screened with in and out-of-State programs CDCR alternative placement programs" and rejected by those programs. The report stated: "Future placement, at facilities currently used by the Juvenile Probation Department Placement Unit, are [sic] no longer appropriate.... The minor will be the age of majority in December 2008, and has clearly demonstrated that his current issues and behavior cannot be safely addressed in a placement facility. [¶] A Juvenile Hall or Juvenile Rehabilitation Facilities (Ranch) commitment is also inadequate to address his issues; the minor's identified issues require a long term contained and structured environment. He requires interventions which cannot be addressed within the confines and time limits of these facilities." The probation report made no recommendations as to probation conditions, presumably because the recommendation was a commitment to the CDCR. (See In re Allen N. (2000) 84 Cal.App.4th 513, 516 [juvenile court has no authority to impose probation conditions on minor committed to the DJJ].)
The CTC's Termination Report following the assault and various incident reports from the CTC were attached to the August 13, 2008 probation report. The termination Report indicated appellant was then being prescribed medications for attention deficit hyperactivity disorder (ADHD) and mood stabilization. Appellant was performing well in school (all A's) and was a good student.
The Termination Report also indicated that appellant had been diagnosed with a sexual disorder, NOS, in August 2006. It noted that a court report had indicated that appellant had sexually assaulted his sister. He had also self-reported that he had molested male victims but his claims were inconsistent. After his arrest, his CTC roommate disclosed that appellant had "asked him repeatedly if he could orally copulate him which his roommate decline repeatedly" but the roommate had not said anything because he feared appellant's anger. The clinical treatment team at CTC felt that appellant posed a risk of reoffending sexually.
The Termination Report summarized: "[Appellant] has displayed a pattern of anger outbursts, including aggressive behaviors. He has displayed a lack of internalization, characterized by his inability to transfer what he learns in the clinical setting to his daily behaviors. He continued to allow cognitive distortions to exist and use poor coping skills in response to anger. He also seemed to struggle with obsessive thought patterns and power/control issues in that he would use fear and intimidation to control his environment and others in it. Of utmost concern, is [appellant] continuing to have such issues, even with him having a cognitive awareness of related dynamics and how they connect to molesting. [Appellant] did not seem to want to change his thinking patterns or take his issues seriously." It made the following recommendations: "[Appellant] be returned to Santa Clara County for further dispositional planning and assessments by the courts as deemed appropriate, as it also relates to his assault on staff. It is also recommended that [appellant] continue in a highly structured environment that provides extensive psychotherapy for sexual deviance, anger management and behavior modification."
On August 13, 2008, the juvenile court continued appellant as a ward of the court (JV31256D). It committed appellant to the Santa Clara County Juvenile Rehabilitation Facilities—Enhanced Ranch Program. It ordered him to obey all rules and regulations of the facility. It also ordered him to participate in all treatment programs as prescribed. The court ordered that appellant be continued in juvenile hall detention pending execution of the commitment order. The court also ordered "all previous Orders of the Court not inconsistent with today's Orders remain in full force and effect."
On February 4, 2009, a section 777 notice of hearing, entitled "Violation of Probation/Failure, " was filed against appellant. It stated: "Circumstances of Violation: [¶] 1. On February 3, 2009, [appellant] failed the James Ranch Program by not following the rules and failure to make progress."
A probation report, dated February 26, 2009, was prepared. A supplemental probation report, dated March 11, 1009, referred to a Dr. Land's February 19, 2009 psychological evaluation report, which diagnosed appellant with bipolar II disorder by history, conduct disorder and possibly ADHD. Dr. Land's report noted that appellant had been caught asking girls at the Bill Wilson Center about "their virginity and what they would do sexually" and he had been placed in a group home that "provided treatment for problematic sexual behavior." Appellant had admitted to molesting up to nine male and female victims from the age of 10 through his relocation to the group home. Dr. Land recommended a "structured setting with trained staff who are capable of managing his behavioral outbursts when they occur" and with "ongoing cognitive behavioral psychotherapy focused on behavior change that is measurable." Dr. Land concluded that "[p]articipation in insight oriented psychotherapy is likely not going to be effective...." As to appellant's difficulties managing his romantic fantasies, the report stated that "[l]ong term therapy, over at least 2-3 years is critical for his success."
The supplemental probation report indicated that James Ranch would not accept appellant back and, as an adult, appellant was "far too sophisticated to be housed with other minors in Juvenile Hall." The report stated that he was threat to the safety of other wards since he had solicited sex from a male resident at CTC. It stated that the probation officer had discussed appellant's case with Melissa Pitts of the CDCR, who had indicated that appellant would participate in a core treatment program and might participate in a healthy sexuality program. He would participate in weekly counseling sessions. In addition to taking college classes, he could participate in vocational training or work at a paid job. He would eligible for parole in 18 months if he behaved, participated in treatment, and attended college. He would be on parole until age 25 and might be discharged early if he complied with his parole conditions. The probation officer recommended a commitment to the CDCR to protect the community from violent outbursts by appellant.
B. Contested Hearing Pursuant to Section 777 Notice
Michael Simms was employed by the Santa Clara County Probation Department and, as probation manager, he was in charge of James Boy's Ranch in Morgan Hill. He was responsible for the safe functioning of the facility and its programs. On February 3, 2009, less than four weeks after being admitted to the ranch, Simms determined that appellant could not remain at the ranch due to the safety and security of the ranch staff and other youth, and appellant's lack of progress in the program.
The ranch utilizes a cognitive behavior management program. The ranch program involves multiple phases. The program begins with orientation in level one and moves into treatment in level two. Level three involves parents in preparation for transitioning back home. The final level, level four, focuses on reentry into the community and getting a job. It typically takes minors six to eight months to complete the program but minors have gotten out in as little as five months. A minor completing a "good" program would spend approximately one month on level one, approximately two months on level two, approximately two months on level three, and one month on level four.
The ranch receives minors that may have been in juvenile hall for some period of time. Typically, level one orientation is somewhat of a repeat of the ranch readiness unit conducted in juvenile hall. Minors learn the rules and regulations and specific expectations of the ranch program. During orientation, minors are informed that they may be terminated from the program in extreme cases of failing to follow the directives of ranch authorities.
A minor moves from level one orientation to level two in sub-steps. If a minor has a successful week, the minor receives at least a ".1" advance in the program and move to the next step. Counselors make entries into an individual behavior log for each minor in each pod.
The ranch program requires wards to write their reflections in a journal. When the minors arrive at the ranch, they are handed a journal and told part of the program is writing in the journal about their personal issues, such as issues related to incarceration and their families. The topic of journal writing is generally open and the journal is a place to write feelings. The recommendation is to journal every day.
The ranch has one central dormitory containing five different pods. Each pod houses 12 minors. Six counselors are assigned to each pod.
Appellant was committed to James Boy's Ranch in August 2008. He was admitted to the ranch on January 8, 2009.
Deanna Burcina, a counselor with Santa Clara County Juvenile Probation Department, was responsible for supervising up to 12 minors in her pod and had primary responsibility for two minors. She first met appellant on January 11, 2009. She was assigned to supervise appellant in E pod, which had six bunk beds and a staff desk.
A January 11, 2009 entry in appellant's behavior log stated that appellant was "feeling needy today." Burcina reported that appellant told her that he struggles in relationships. At the hearing, she recalled that appellant had tried to get her attention for most of the day and, toward the end of the day, appellant had explained that he had a problem with women, which "creeps him out."
In his January 12, 2009 journal entry, appellant talked about love and the way he obsessed over it and tried to find love everywhere. He said, "I tend to look at anyone who in my eyes is beautiful, " and named two female staff members at the ranch other than Burcina. He said he knew it was a problem.
One of the first times Burcina noticed appellant staring at her was on January 14, 2009, when appellant was lying on his bunk looking at her while she was engaged with other minors. "It was a very prolonged stare." She spoke to appellant about the staring incident and asked him to roll the other way or look in another direction.
Appellant's January 14, 2009 journal entry was written about Burcina. He wrote about her beauty and his looking for and wanting love. An entry in appellant's behavior log on January 14, 2009 stated that appellant "needs to learn to develop healthy and appropriate relationships with women." Burcina reported that appellant was "staring at her all the time."
Over the course of appellant's stay at the ranch, Burcina had to speak to appellant about his staring at her multiple times. There was also one occasion when she had to ask appellant to scoot back because he was sitting too close.
Appellant's January 15, 2009 journal entry was mostly about his feelings for and attraction to Burcina. Burcina viewed the entry as a letter to her since she was collecting the journals that day and he was giving it to her to read. It caused her some alarm.
Burcina gave appellant a new journal book and informed him that his entries had been inappropriate. She told him that he was to write about the program and interpersonal issues.
On January 20, 2009, Burcina spoke with appellant about boundaries, her role as a staff member and his role as a minor, and his inappropriate infatuation with her and his inappropriate expression of feelings. Appellant appeared to understand and be receptive to the information. Burcina was on the alert to be cautious and keep some distance.
Burcina noticed that, on January 20, 2009, after she and appellant had spoken, another probation counselor had documented in appellant's log that appellant said that it was going to be difficult for him to not think about Burcina given his feelings. The issue of appellant expressing feelings for Burcina was discussed at a staff meeting.
On January 22, 2009, Burcina had another discussion with appellant about his feelings toward her. Two other probation counselors and the supervising probation counselor were present. He indicated that he understood that there were boundaries and their staff-minor relationship was to be professional. An entry in appellant's behavior log on January 22, 2009 stated that appellant was counseled again regarding appropriateness with female staff.
Appellant's January 24, 2009 journal entry stated in part: "I've also noticed that the only staff I actually question is Burcina. Why is this? Isn't it contradictory, in spite of myself?" Burcina viewed this entry as appellant again talking about his feelings for her. She was concerned because he had been specifically told that journal entries about his feelings for her were inappropriate.
Burcina became more concerned about her personal safety after the January 24, 2009 journal entry. At that point, appellant's behavior had deteriorated in that he was becoming more agitated and he was isolating himself a lot more from his peers. He was taking any redirection from her very personally.
Appellant's January 25, 2009 journal entry talked extensively about his pain, hurt and sorrow. He expressed the fear that he could never have true or pure love and would have only "broken love." He talked about cutting himself in the past to release pain deep inside and how the pain was everlasting. He stated: "It will never fade, even after I'm gone. I don't even think anyone would care. The love of my life hates me. I have no friends that actually like me, so fuck it." Because this entry appeared to contain statements of self-harm or thoughts of suicide, Burcina notified her superiors.
Appellant was sent to juvenile hall due to the perceived suicide risk on January 25, 2009 and he returned on January 26, 2009, about 24 hours later. The ranch was not equipped to deal with suicidal minors. On January 26, 2009, Simms discussed appellant with Burcina.
On January 29, 2009, Burcina sent an e-mail message to Simms regarding the situation that had led up to appellant's January 25, 2009 journal entry and appellant's conversation with another staff member. Appellant had told that person about his overwhelming feelings for Burcina and his inability to stop them and his belief that he was being sent back to juvenile hall as punishment or retaliation. The e-mail outlined her concerns about appellant.
On the morning of February 3, 2009, appellant demanded to speak to the manager because he wanted to change pods and Burcina had said she would let the manger know as soon as he was available. Burcina was aware that appellant had requested to be transferred to another pod. The request was first documented after the juvenile hall transport.
On February 3, 2009, Simms met with appellant in person and advised him of his concerns about his performance at the ranch. Simms spoke with appellant regarding his attentions to and romantic infatuation with Burcina and informed him that his behavior was absolutely prohibited and could result in ranch failure. They discussed appellant's inappropriate romantic letters to Burcina, which were written in his personal journal, and his invasion of her personal space. Appellant indicated that he realized his infatuation was inappropriate but he could not control his feelings for Burcina and he was "very much interested" in having a relationship with her. Other staff had already spoken to appellant about this problem.
During their February 3, 2009 meeting, appellant brought up his wish to move to a different pod. He had two reasons for wanting to move. First, appellant was not getting along with the youths in that pod and he wanted a new start. Second, he wanted to move away from Burcina. Simms and he discussed interacting and resolving conflicts with a particular youth in appellant's pod.
When asked by Simms if he had previously experienced overwhelming or overpowering feelings toward female staff, appellant brought up his committing offense, a violation of Penal Code section 245. Appellant told Simms that while he was at a group home he had been "similarly attached" to a female in the community and he had considered himself to be her guardian angel. Appellant had planned to lay in wait, beat and incapacitate a counselor in the group home, take his keys and steal a car to go see her. Those actions showed that appellant was able "to be very violent even with somebody that he's been with [for] nine months" and to be callous about that person and that appellant was unable to separate fantasy from facts.
Simms admonished appellant about expectations and "what was not tolerated" at the ranch and counseled appellant to leave Burcina alone. When appellant left Simms's office, Simms had "a pretty strong feeling that we were not the right place for his needs." While it was his intent to terminate appellant, he wanted to first discuss the matter with mental health staff and speak with the involved supervisors to make sure he had the correct information, which he proceeded to do.
After appellant's meeting with Simms on February 3, 2009, Burcina saw appellant at the welding class where she was supervising minors. Appellant was sitting near Burcina and staring at her while he filed or tapped a foot-long metal file in his hand. When Burcina moved to other parts of the room to supervise, appellant followed her. He never came closer than about eight feet. Burcina perceived appellant's behavior, the staring, the following her around, and the file tapping, to be threatening. Burcina finally asked appellant to stay seated and to stop moving around the room. Appellant complied.
When the group returned to the dorm after the welding class, appellant confronted Burcina about whether she had spoken to Simms about his request for a pod change as she had promised and called her "a liar."
Burcina then reported the welding room incident to Simms. Burcina told Simms and supervisor Elwart that she did not think the ranch was a suitable facility for the appellant. She did not think the staff had the time or the training to deal with appellant's emotional needs. Burcina's report to him that appellant was again staring at her and invading her personal space solidified Simms's decision to fail appellant from the ranch.
A ranch failure report was prepared and approved by persons other than Simms. It contained Simms's opinion that appellant should never have been sent to the ranch because it was not an appropriate placement.
Simms concluded that appellant could not remain at the ranch due to the safety and security of the ranch staff and other youth and his lack of progress in the program. On January 29, 2009, appellant was still on the first level, having progressed to only Level 1.2. Simms's concern with appellant's lack of progress, however, was "more along the lines of behavior that was observed rather than the fact that he was on level one." Simms perceived a pattern of aggressive behavior toward the female staff. Simms was particularly concerned with Burcina's safety. He also mentioned another female staff person, Oduok, who was a probation counselor and supervised appellant in school.
Simms was concerned with safety and security of other minors based upon the danger appellant posed to himself, having been temporarily returned to juvenile hall for suicidal ideation, appellant's "near fight" within the pod, and journal statements with regard to not fitting in and hurting people. Simms explained that juvenile hall is better suited to deal with suicide issues because they have sufficient rooms and staff to supervise an at-risk minor 24 hours a day, seven days a week, while the ranch has a dorm setting, fewer staff, and tools and other potential weapons around.
In Simms's opinion, appellant's history, especially the committing offense, which involved an "out of control" fixation on "a young lady in the community" that led to an act of violence, were consistent with appellant's fixation with Burcina at the ranch. Typically, minors with intense psychological issues are screened out because the ranch does not have the proper staff to handle those children. His full review of appellant's probation reports, indicating a pattern of behavior and psychological pathologies, led Simms to conclude that appellant was too disturbed for the ranch.
After the evidentiary hearing, defense counsel argued that the ranch failed appellant out of its program because it was not an appropriate placement. He asked the court to find that appellant had not violated probation and to consider and grant his alternative section 778 petition to return appellant to juvenile hall.
The prosecuting attorney in essence argued that, although there may be underlying psychological factors, appellant engaged in inappropriate and threatening conduct despite counseling and directives from staff and, consequently, he failed to successfully complete the ranch program. He also argued that minor failed to follow the directives of the ranch personnel as to Burcina.
The court took the matter under submission. On May 14, 2009, the court found the allegations of the section 777 notice to be true.
C. Violations Alleged in Section 777Notice
Appellant argues that there was no evidence that he violated any specific ranch rule or failed to progress through the ranch program. He asserts that the ranch's determination that it did not want to deal with his mental health issues was not evidence of a failure to progress. He maintains that the ranch merely reevaluated his acceptance into the program as a result of his obsession with his counselor and decided it had made a mistake.
While the evidence did not prove that appellant violated a formal ranch rule, it did establish that appellant failed to follow the authoritative directives prescribing his conduct at the ranch by the ranch manager and other staff. The ranch's treatment program implicitly required participants to cooperate with staff and comply with their directives. In this case the evidence showed that, although he was repeatedly counseled and redirected, appellant failed to act appropriately with regard to counselor Burcina, who was his direct supervisor. Appellant was unwilling or unable to abide by the express expectations for appropriate behavior in that relationship and the program. His final problematic behaviors toward Burcina in the welding class occurred very shortly after the program manager had spoken with him and expressly directed him to control his behavior toward Burcina. This last incident finalized his decision to terminate appellant from its program for failing to progress. That decision was buttressed by appellant's past history that had come to light, which suggested more serious underlying psychological issues that could not be adequately addressed at the ranch.
While the decision to terminate appellant from the ranch may have been due in part to a mismatch of the ranch services and appellant's emotional or psychological needs, substantial evidence supports a finding that the allegations of the section 777 notice were true.
D. Contested Dispositional Hearing
Daniel Macalliar, the executive director of the Center for Juvenile and Criminal Justice, a nonprofit organization based in San Francisco and a faculty member in the Criminal Justice Department at San Francisco State testified. The center operated the Detention Diversion Advocacy Program, which provides intensive case management services and mental health services to juveniles at the pre-adjudication stage. It also ran community options for youth, a wraparound program for juveniles coming out of institutional or residential care.
Macalliar explained that the Farrell lawsuit against the State of California was based on the state's "failures to provide adequate rehabilitative services within the California Youth Authority and [its] failure to provide a safe and secure environment for wards in its custody." He stated that the DJJ was presently operating under a consent decree. The DJJ had been ordered by the court to institute an integrated behavioral treatment model.
The consent decree acknowledged problems with the general conditions, including the high rates of violence, and the education and mental health treatment programs, including sex offender treatment. The first step in compliance was the development of a written plan. At the time of Macalliar's testimony, the state still had not developed the written plan and was two years out of compliance. The original remedial plan called for no more than 12 youths in a specialized treatment program but, at the time of the hearing, such programs were operating with about 35 to 40 youths. As of an October 2008 hearing, the state had made little progress with compliance. The overall quality of services had not significantly changed since 2002. One of the ongoing administrative issues was DJJ's problems with storing, transferring, and dealing with data with respect to the wards. Other problems related to the hiring and retention of qualified licensed staff and staff training.
A progress hearing in the Farrell case was scheduled for the week following the dispositional hearing to examine the state's progress in meeting its target goals with regard to mental health treatment in the DJJ. The plaintiffs in the Farrell case had told Macalliar that they intended to request that the DJJ be placed in receivership at that hearing.
According to Macalliar, the average age of the DJJ wards was 19 and a half years. A ward committed to the DJJ in northern California would be sent to the Northern Reception Center and would be housed there from 30 to 90 days. Following assessment and testing and review of information from the relevant counties, the youth would be assigned to a particular institution. When the youth arrived at an institution, he went through a formal orientation. As part of orientation, the youth was interviewed by a gang intervention specialist.
Macalliar explained that youths determined not to be severely mentally ill or suicidal at the reception center were ordinarily not placed into mental health programs. A diagnosis of mental illness did not guarantee a placement in a specialized program. Individuals with severe mental illness could be sent to the Chaderjian facility, where the mental health programs had been consolidated. The appropriateness of placement in a sex offender treatment program was also a decision made at intake and such placement was generally reserved for the highest risk wards. No core population was located at Chaderjian. Youths placed in specialized programs had access to a psychologist but most of the treatment was still conducted by youth correctional counselors who were not licensed professionals.
Youths who were not suicidal or severely mentally ill became part of the general population placed in the DJJ's core program. The core program offered limited therapeutic programs. Young persons in the core program who needed sexual offender counseling would receive it on only an informal basis. Youths in the core program rarely saw a licensed mental health counselor. A psychologist usually got involved if there was an incident or a crisis but ongoing individual therapy did not occur in the general population.
Various resources groups were available to youths in the general population. Youth correctional counselors ran victim awareness, gang awareness, substance abuse awareness, and anger management resource groups generally at night in the living unit. Macalliar acknowledged there was also a healthy sexual education program in place but he implied that its effectiveness had not yet been established. He emphasized that it was another resource group run by youth correctional counselors and it was not a specialized treatment program.
Macalliar testitied that at all DJJ institutions, a youth that already graduated from high school could obtain college credits. At the Chaderjian and Preston facilities, correspondence classes were available. At the Stark facility, a small population took college classes from instructors coming into the facility.
The rates of violence at the institutions had been a long-term problem. In Stark and Preston, facilities that housed older youths, the rates of violence had gone up. The gang subculture at these facilities was also an issue. In contrast, violence had dropped at Chaderjian. The decrease in violence at the Chaderjian facility was possibly attributable to its changed population now that gang members were not being sent there and to its heavier staffing.
An informal initiation process by other wards began when a ward entered a living unit. A ward was vulnerable to assault or harassment by the other wards. A ward remaining passive was vulnerable to exploitation and might have to pay rent to a tougher ward for protection. A ward who informed the guards of misconduct was labeled a snitch and moved to the bottom of the hierarchy. A ward who fought might be invited to join an institutional gang.
The general consensus was that commitment to the DJJ facilities did not result in rehabilitation. The DJJ's open dormitory format and its current facilities would not meet the American Correctional Association's standards. In July 2008, the independent Little Hoover Commission had recommended that the DJJ be completely shut down by 2011 based upon its performance. A January 2009 Legislative Analyst Report also recommended that the DJJ be closed, primarily as a cost savings measure. Macalliar was personally advocating that the DJJ be closed.
The problems with the parole system of the CYA (now the DJJ) were that it lacked a comprehensive aftercare system and lacked resources. For the most part, parole consisted of monthly office visits and urinalysis. Although the parole population was down, the parole system continued to "suffer from lack of a broad range of resources." The Farrell lawsuit did not address the parole system.
Macalliar opined that the DJJ was not an appropriate commitment choice for a youth if the goal was rehabilitation. If the goal was incapacitation or punishment, a commitment to the DJJ might he appropriate in his opinion. He believed that appellant would end up at Preston if he was not placed at Chaderjian. In Macalliar's opinion, based upon his review of probation reports concerning appellant, the potential for rehabilitation of appellant was greater at the local level since more individualized interventions and a broader array of services were available locally, especially in light of the problems and culture at the DJJ. He mentioned Early Periodic Diagnostic Screening and Treatment (EPDST), a Medicaid funded program, and Wraparound Services as services available at the local level. But when hypothetically asked if an individual should be sent to the DJJ as it then existed if all other options had been exhausted and there had been a failure to rehabilitate, he answered, "Perhaps, yes." He conceded that he was not comfortable recommending a disposition for appellant since he had not done a thorough analysis of the appellant's specific case.
Josephine Slonski, a liason between local juvenile justice departments and the DJJ, testified that when an individual committed to the DJJ arrives, the individual is immediately assessed. Orientation takes approximately 45 days during which there are additional assessments and testing, including psychological testing. Depending upon test results, an individual may be referred for screening in a residential mental health program or in a sex behavioral treatment program or an inpatient program. Educational testing and vocational assessment also take place. Most placement facilities have college via distance learning. A psychosocial assessment is conducted and a clinical summary report is prepared. A treatment team is developed and a risk needs classification is determined toward the end of orientation. Treatment needs, classification, gender, age, proximity to home are among the factors taken into consideration in deciding post-orientation placement.
A number of mental health programs were housed in N.A. Chaderjian, a facility in Stockton. That facility had three sexual behavior treatment programs and other residential mental health programs. There were other sexual behavior treatment programs at other locations. Although youths screened for a sexual behavior treatment program normally had committed some type of adjudicated sex offense, an adjudicated sex offense was not a prerequisite to placement. Cases involving unadjudicated sexual behavior could be screened on a case by case basis.
Slonski described a typical day in a core program. Youths who had no GED or high school diploma typically attended school from 8 a.m. to 3:30 p.m. Youths who were not attending school would either be employed or involved in vocational education. Such youths might take college classes through distance learning but they would also work and/or participate in vocational training. Youths could be involved in a treatment group or a resource group addressing a particular issue like substance abuse, gang awareness, or anger management. Appointments with professionals and staff would occur in the late afternoon and evening. There might be appointments with an assigned psychologist or "one-on-one counseling with their youth correctional counsel[or] or their case manager."
Slonski acknowledged that in a consent decree in the Farrell case, the DJJ stipulated to certain failures in its program. Quarterly reports by a special master discuss progress in remedying the recognized problems. An October 2008 order determined that the DJJ had missed deadlines and continued to have inadequate programs. She explained that the DJJ initially had not received funding to implement remedial plans developed in 2005 and 2006.
She indicated that a 12-week healthy living curriculum was generally available to youths in the sexual behavior treatment program and was completed before further treatment. Other youths could be placed in the healthy living program on a case by case basis. The current DJJ sexual behavior treatment program used the same curriculum as before but many changes had been made to the program to address problems. Those remedial changes included reducing the number of program participants from 55 to 36 and increasing the number of staff, including raising the number of psychologists per living unit to two.
A section 245 offense had a projected parole date of 18 months under Title 15 of the California Code of Regulations. A person at A level, as opposed to B or C level which allowed fewer conduct credits, who earned the full 15 days conduct credits per month could be paroled in as little as nine months after orientation. But the juvenile parole board retained the power to decide whether parole was appropriate even if a youth had earned sufficient conduct credits to be eligible for parole.
Slonski explained that the youth correctional counselor, the case manager, and the casework specialist were all peace officers. Casework specialists had at least a master's degree in social work. Two casework specialists were assigned to each unit and a unit had a maximum of 38 youths. The ratio of staff to youth was highest in the intensive behavior treatment program, which treated youths who were suicidal or had overwhelming mental health issues. The core program was similarly staffed with three correctional counselors working in the morning and afternoon, a senior correctional counselor working in the middle of the day, two case managers, a half-day reentry parole agent, and a half-day psychologist.
For youths with high school diplomas, there were job programs in culinary arts, plumbing, refrigeration, and manufacturing. At some institutions there was an opportunity for vocational education in areas such as computer technology, construction, automotive, and landscaping.
Youths with mental health issues might be placed in a specialized treatment program at the time of reception. Youths could be subsequently screened for placement in those programs if they developed symptoms of depression or suicide while in a basic core program. DJJ also had inpatient programs for those with more severe mental health issues. For example, a youth's sexual acting out could lead to a screening for inclusion in the sexual behavior treatment program. Slonski acknowledged that, once a youth was assigned to a regular core group, it would take unusual behavior to be reevaluated for reassignment to a mental health program.
Slonski had reviewed probation reports, the CTC's failure report, and Dr. Land's psychological report and it was her opinion, based upon review of these reports, that DJJ had the appropriate services and resources for appellant. Appellant would be screened for inclusion into the sexual behavioral treatment program if requested by the reviewing caseworker or by Slonski since there was no adjudicated sex offense. If appellant was not selected for the sexual behavioral treatment program and it was determined that the core programming was more appropriate, then he would have programming to address issues of anger, previous possible victimization, and impulse control. She recognized that appellant did not appear to have substance abuse or gang issues.
Dr. Heather Bowlds, a sexual behavior treatment program coordinator employed by the CDCR, oversaw seven units throughout the state, monitored compliance, and placed youths in the programs. Dr. Barbara Schwartz was the expert, appointed by the court through the special master's office in the Farrell case, auditing the remedial plan for sexual behavioral treatment programs. Dr. Bowlds interacted often with Dr. Schwartz and they had a "good collaborative working relationship."
Dr. Bowlds acknowledged that, in connection with the Farrell case, an expert had concluded in a September 2003 report that the sexual offender treatment program did not meet then recognized standards of practice. The report indicated that the staff had not been regularly trained in behavior management. It also found the program was punitive rather than rehabilitative. The expert had made a number of remedial recommendations. DJJ was supposed to develop an implementation plan with the goal of moving from a correctional model to a rehabilitative model. Dr. Bowlds indicated that the original sexual offender task force had evolved into three groups that were still in effect. She agreed that DJJ had not yet fully complied with the requirements of Farrell.
Dr. Bowlds confirmed that a healthy sexuality program had been developed. It was the foundation for all the sexual behavior treatment programs. It was not generally taught to the core groups but could be used for youths in those groups who engaged in sexually inappropriate behavior.
Youths coming out of Santa Clara County for sexual offender treatment typically went to the Chaderjian site. When the program there was reviewed in April 2008, there were still issues concerning appropriate staffing, administrative organization, use of suicide watch as punishment, and the uniformity of curriculum. Dr. Bowlds acknowledged that the judge had ordered funding of experts to set up the behavioral treatment program because the DJJ was so far behind.
At a recent court appearance in the Farrell case, the parties had stipulated regarding the integrated behavioral treatment model, which was the model for the entire DJJ system. A July 2, 2009 court order concerned that treatment model and the primary object of the order was the core units, which had not been treatment focused. But the order indirectly affected the sexual behavior treatment program because all DJJ staff would be trained with respect to that treatment model, including staff in the sexual behavior treatment program. Dr. Bowlds indicated that the sexual behavior treatment program unit were further ahead with respect to the court order because they already emphasized treatment.
She testified that standardized tests and assessment tools were used to screen youths. Probation reports and psychological reports were also considered during the intake process. A court finding that a youth had committed a sexual offense was not a prerequisite for admission into the sexual behavior treatment program; a history of sexually abusive behavior might be sufficient. Youths in that program were treated by psychologists and counseled by correctional counselors. The sexual offender treatment program units had a higher number of mental health staff than the core units. Dr. Bowlds acknowledged that not all psychologists were licensed, either because they were post-doctoral psychologists who were required to be licensed within two years after they were hired or they were among the handful of unlicensed staff psychologists grandfathered in under an old legislative bill, but all new hires were required to be licensed.
The sexual behavior treatment program at the DJJ used a cognitive behavioral treatment program approach and had different stages or phases. After completion of the program and release into the community, the youth continued in treatment either in the parole office with a contract psychologist or sometimes in a specialized group home.
Dr. Bowlds had reviewed Dr. Land's psychological report regarding appellant. Dr. Lands had used JSORRAT-II test, an actuarial risk assessment, to evaluate appellant and the test had indicated that appellant was at moderate risk for sexual offense. After considering the test and other factors, Dr. Land had placed appellant at "moderate/high risk." Dr. Bowlds acknowledged that that the risk might be lower than determined by Dr. Land if appellant's behavior that had been labeled "molest" was actually "mutual sexual experimentation" and if Dr. Land had correctly understood that appellant had asked to transfer out of, rather than into, the unit of the female with whom he was obsessed.
Based upon a hypothetical reflecting appellant's history and his assertions of sexual conduct, Dr. Bowlds concluded that such person would be suitable for the sexual behavior treatment program. She believed the sexual treatment program as it existed was helpful and she had "seen success." She believed that despite the Farrell lawsuit and the consent decree, the DJJ was the appropriate program for the individual described in the hypothetical. Dr. Bowlds confirmed that appellant would be screened to determine whether the sexual treatment program was appropriate for him. If he was admitted into that program, appellant would receive individualized treatment. At the time of the hearing, several openings existed in the seven sexual behavior treatment program units, which each had a capacity of 36 individuals.
Sarah Canez, who had been appellant's parole officer since his commitment to the ranch in August 2008, had seen appellant two or three times since he had returned to juvenile hall. The last time appellant had lived at home was June 2006. She had never discussed Dr. Land's misconception that appellant had asked to be transferred to Burcina's pod at the ranch with Dr. Land; she had not tried to correct his factual mistake. She had partly relied upon Dr. Land's report in recommending the CDCR. Canez had also made the recommendation because appellant could receive "after-care." When she had contacted an intake specialist at the DJJ and provided information about appellant, Canez had been told that appellant would probably be placed in the healthy sexuality class. Canez was aware that there was a sexual offender unit in Santa Clara County's juvenile probation that used specific therapists and therapy programs. She was unaware of the Sharper Futures program, which offered sexual offender treatment. She was not aware of any programs in which appellant had participated while in juvenile hall.
Canez recognized that appellant had been on "A level" most of the time in juvenile hall and had continually participated in mental health services. Canez acknowledged that, when appellant first returned from the ranch, she had been "leaning toward suggesting the Life Skills program." The Life Skills program provided help with getting a job, obtaining education, and connecting with outside programs and also provided "after care." It did not offer any sexual offender treatment program. But it did allow outpatient psychological counseling or programming.
After reviewing appellant's criminal history and Dr. Land's report, she concluded that the Life Skills program was inappropriate because appellant needed long-term mental health therapy and an environment able to handle his aggressive and violent behavior and to protect other wards. She did not think outpatient treatment was appropriate for appellant. Canez acknowledged that she had never talked with Mr. Pitts of the CDCR or Dr. Bowlds.
She testified about a July 15, 2009 incident report concerning a letter written by appellant to a female counselor at juvenile hall. The letter had made the counselor feel uncomfortable and disrespected. Appellant had claimed that he was working on the letter with Mr. Sanchez who was part of the juvenile hall's mental health staff. Vone Kegarice, a supervisor in the juvenile unit of the Santa Clara County Probation Department, had contacted Sanchez, who clarified that the letter was not something that he had worked on with appellant.
The juvenile court determined that a commitment to the DJJ was the appropriate disposition based upon appellant's age, the circumstances and gravity of the underlying offense, and appellant's previous delinquency history, which included years of aggressive and inappropriate behavior. (See § 725.5.) The court concluded that appellant's delinquency history, which it detailed, showed appellant's predatory tendency and his obsessive behavior.
The court concluded that it was probable that appellant would be "benefitted by the reformatory educational discipline or other treatment provided" by the DJJ. The court also found that a DJJ commitment was in appellant's best interest because it offered needed programs and treatment. (See § 202, subd. (b).) A treatment team would oversee appellant's case at the DJJ. He might be eligible for the sex offender programs even though no sex offense allegation had been adjudicated and he would be screened for placement. Dr. Land had recommended that appellant be placed in a setting where others could be protected against appellant's outbreaks of violence. Dr. Land had also recommended long term cognitive behavioral psychotherapy and the court concluded that appellant could receive such treatment at the DJJ.
The court noted that the underlying assault offense had been "particularly violent and egregious." The subsequent ranch placement had been ineffective. The July 15 incident after appellant had been returned to juvenile hall involved behavior similar to the behavior that led to his termination from the ranch and demonstrated that appellant continued to act manipulatively and inappropriately. The court concluded that placement at the local level had been shown to be ineffective and inappropriate and appellant needed services and treatment beyond those available locally. In addition, the court found that appellant was a threat to staff members at the ranch and at juvenile hall and a threat to other wards at these placements given his prior solicitation of sex from residents. The court committed appellant to the DJJ.
E. Sufficiency of Evidence to Support the DJJ Commitment
Section 734 provides: "No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority." "[U]nder the present statutory scheme, supported by sound policy considerations, a commitment to CYA [now DJF] must be supported by a determination, based upon substantial evidence in the record, of probable benefit to the minor." (In re Aline D. (1975) 14 Cal.3d 557, 567.) "A DJJ commitment is not an abuse of discretion where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate. (In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556....)" (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.)
"Commencing July 1, 2005, any reference to the Department of the Youth Authority in [Welfare and Institutions Code] or any other code refers to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities." (Welf. & Inst. Code, § 1710, subd. (a); see Welf. & Inst. Code, § 1703, subd. (c) [" 'Youth Authority, ' 'Authority, ' 'authority, ' or 'division' means the Department of Corrections and Rehabilitation, Division of Juvenile Facilities"]; see also Gov. Code, § 12838.3 [creating Division of Juvenile Facilities within Department of Corrections and Rehabilitation].) The Department of Corrections and Rehabilitation, Division of Juvenile Facilities, generally must "accept a ward committed to it pursuant to this article if the Chief Deputy Secretary for the Division of Juvenile Justice believes that the ward can be materially benefitted by the division's reformatory and educational discipline, and if the division has adequate facilities, staff, and programs to provide that care." (§ 736.)
Appellant maintains that the evidence did not establish that he needed or would benefit from sex offender treatment provided by the DJJ. Appellant argues that the evidence was insufficient to show that he would actually receive mental health counseling or sex offender treatment if committed to the DJJ. Appellant contends he does not need the services offered to the core population but instead needs individual mental health therapy, which would not be provided.
Appellant's history indicates that he had on a number of occasions engaged in inappropriate aggressive and sexual behaviors. Also, over the years, he had been diagnosed with a variety of mental health disorders. Appellant acknowledges on appeal that his delinquency history shows "sexualized behavior and romantic obsessions while in placements" and "a pattern of emotional disturbance and highly sexualized behavior."
Although the evidence regarding the appropriateness of a DJJ placement was conflicting, there was evidence of probable benefit even if the DJJ was not ideal. There was evidence that appellant would receive extensive evaluation and assessment during intake to determine his particular mental health needs and to determine the appropriateness of a placement in the sexual behavior treatment program. There was evidence that appellant had been previously diagnosed with a sexual disorder, NOS, and he could be at some risk for sexual offense. Appellant would not be ineligible for the sexual behavior treatment program merely because there was no adjudicated sex offense. In addition, there were a number of different specialized DJJ programs for which appellant would be evaluated.
The DJJ staff would seek to match appellant's placement to his needs. All of the DJJ programs were moving toward a behavioral treatment model. If admitted into the sexual behavior treatment program, appellant would receive individualized treatment. If placed in the core program, appellant would still have the opportunity to participate in the healthy living program if appropriate and other appropriate treatment groups or resource groups, take college classes, receive vocational training, and obtain work experience in a structured, supervised setting as recommended. Case managers had at least a master's degree in social work. There was also testimony indicating that individual counseling was possible in the core program, possibly with an assigned psychologist. If assigned to the core program and his behavior warranted, appellant could be reevaluated for the specialized programs.
Substantial evidence supports the juvenile court's determination of probable benefit to appellant from a commitment to the DJJ. Although appellant asserts that he "could have remained at juvenile hall while engaging in therapy, " there is evidence in the record to support a finding that such a less restrictive placement would have been ineffective or inappropriate. (Cf. In re Ricky H. (1981) 30 Cal.3d 176, 184.)
The August 17, 2009 order committing appellant to the DJJ is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.