Opinion
E069785
05-21-2018
In re M.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.B., Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J270185) OPINION APPEAL from the Superior Court of San Bernardino County. Winston S. Keh, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL BACKGROUND
On March 27, 2017, a petition under Welfare and Institutions Code section 602 alleged defendant and appellant M.B. (Minor; a male, born 12/2000) committed assault with a firearm under Penal Code section 245, subdivision (a). In exchange for a dismissal of that count, Minor admitted making a criminal threat under Penal Code section 422. On April 19, 2017, Minor was declared a ward of the court under Welfare and Institutions Code section 602 and placed on formal probation in his mother's custody.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On June 30, 2017, the People filed a new petition charging Minor with possession of a firearm by a felon under Penal Code section 29800, subdivision (a) (Count 1); possession of a firearm by a minor under Penal Code section 29610 (Count 2); and possession of live ammunition by a minor under Penal Code section 29650 (Count 3). The petition alleged that all three crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang.
Minor admitted Count 2; Counts 1 and 3, and the gang allegations were dismissed. The juvenile court detained Minor in juvenile court, pending placement in a foster care facility.
On October 20, 2017, the juvenile court followed the probation department's recommendation that Minor be placed in the Glen Mills Schools in Philadelphia, Pennsylvania.
On December 19, 2017, Minor filed a timely notice of appeal.
The statement of facts is taken from the statements of probable cause in support of the two petitions. --------
On March 24, 2017, Minor was arguing with his girlfriend. Minor's mother separated Minor from the girlfriend, allowing the girlfriend to "sneak away." Minor then began yelling at his mother, which caused Minor's sister to intervene. Minor pushed his sister into the kitchen, pulled out a gun, pointed at his sister and said, "You think I'm playing but I'm not." Police were called; they arrested Minor but a gun was not found.
Three months later, on June 28, 2017, Rialto police officers responded to a "suspicious subjects" call. They contacted Minor, who was sitting on a wall; as police began to pat-down Minor, he admitted to having a gun. Officers found a loaded .22-caliber revolver in Minor's waistband.
DISCUSSION
A. THE JUVENILE COURT PROPERLY PLACED MINOR IN OUT-OF-STATE FOSTER CARE
Minor contends the juvenile court erred in ordering Minor to out-of-state foster care because there was no evidence that in-state facilities were unavailable or inadequate. We disagree.
1. PROCEDURAL BACKGROUND
Following Minor's admission to the firearm possession in July of 2017, the juvenile court ordered that he remain in juvenile detention while probation determined out the best placement for him. In early August, probation submitted placement case and reunification plans calling for foster care, which the court approved.
On August 24, the probation department reported that its recommended facility, Rite of Passage in San Andreas, had screened and accepted Minor after Minor refused to be interviewed by Optimist Youth Homes in Los Angeles. However, when a staff member from Rite of Passage attempted to retrieve Minor from juvenile hall and transport him, Minor refused claiming he was promised placement at a facility closer to his home.
At an August 31, 2017, hearing, the juvenile court ordered Minor be rescreened by Optimist. However, Optimist had changed to a "Short Term Residential Program (STRIP), which required medical necessity when placing a minor and Minor was not a candidate for placement. Probation then recommended out-of-state placement. Two facilities, Lakeside, in Michigan , and Glen Mills, in Pennsylvania, screened and accepted Minor. Probation recommended Glen Mills; Minor objected, and a contested placement hearing was scheduled.
At the contested placement hearing on October 13, 2017, Mike Paganini, a supervising probation officer in charge of placements, testified regarding the placement process. With respect to Minor, Paganini was concerned about his gang affiliation, history of violence, firearm possession, and drug and alcohol use.
Paganini testified that probation had contracts for approximately 25 placements. He and his team considered 10 California facilities for Minor and determined that Minor should be screened by three of them: Optimist in Los Angeles, Promesa in Fresno, and Rite of Passage. The other facilities were deemed inappropriate for various reasons; including Minor's gang issues, gun use, and runaway history.
Regarding the three potential California locations: Promesa rejected Minor; Optimist had converted to a STRIP; and Minor refused placement at Rite of Passage, which had also converted to a STRIP and so Minor was not eligible for placement due to a lack of medical necessity.
Paganini concluded Minor should be placed in Glen Mills. One of the reasons was because it did not have a "medical necessity" requirement. Also, he testified it was the "best gang program available in the country [and it] is the best chance for [Minor's] success." Although the facility was located in Pennsylvania, family visits, SKYPE communication and phone calls were all allowed.
Minor's mother and sister testified; they downplayed Minor's issues and indicated that he had changed. They wanted Minor's placement to be closer to home.
Minor testified that he had no intention of running away from home, that he went to school with and was friends with some gang members but did not consider himself part of a gang. Minor realized while he was away from his family that he was selfish and not considerate; he testified regarding his progress with his schooling and other programs while he has been in juvenile detention.
The juvenile court issued its ruling, finding probation had screened the minor for local placement, but Minor sabotaged the process; and the goal of juvenile court is to rehabilitate the minor but also protect the community. The court, therefore, affirmed the probation recommendation that Minor be placed in the Glen Mills Schools in Pennsylvania.
2. LEGAL BACKGROUND AND STANDARD OF REVIEW
"The purpose of the juvenile court law is [¶] 'to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public.' " (In re Oscar A. (2013) 217 Cal.App.4th 750, 756 (Oscar A.), quoting § 202, subd. (a).)
If a minor is adjudged a ward of the court under section 602, then "[i]t is the responsibility . . . of the probation agency to determine the appropriate placement for the ward once the court issues a placement order." (§ 727, subd. (a)(4).) That placement determination is subject to the court's approval. (§ 727, subd. (e).) The court cannot order a minor placed in out-of-state foster care or residential treatment unless "[i]n-state facilities or programs have been determined to be unavailable or inadequate to meet the needs of the minor." (§ 727.1, subd. (b)(1).)
On appeal, we "review a juvenile court's commitment decision for abuse of discretion, indulging all reasonable inferences to support its decision." (Oscar A., supra, 217 Cal.App.4th at p. 755.) We find abuse whenever a court exceeds the bounds of reason, all of the circumstances being considered. We "will not disturb the juvenile court's findings when there is substantial evidence to support them." (Ibid.)
3. ÄNALYSIS
In this case, the juvenile court's out-of-state placement order was consistent with the requirement that in-state facilities first be deemed inadequate or unavailable. (§ 727.1, subd. (b)(1).) Section 727.1, subdivision (b)(1) does not compel the court to "exhaust every available in-state facility before ordering out-of-state placement." (Oscar A., supra, 217 Cal.App.4th at p. 757.) That is, "[t]he court need not determine all in-state facilities are unavailable." (Ibid.) "The court retains discretion to decide in-state facilities [a]re simply inadequate to rehabilitate a minor." (Id. at p. 758.)
At the placement hearing, the juvenile court heard evidence that Minor's violent past, gang affiliation, and history of running away limited his placement options in California to three possibilities: Promesa would not take Minor; Optimist converted to a STRIP after Minor refused to participate in screening; and Minor refused to go to Rite of Passage, which was then also converted to a STRIP.
As provided above, "[t]he mere existence of other facilities in California does not mean the court abused its discretion by ordering out-of-state placement." (Oscar A., supra, 217 Cal.App.4th at p. 757.) Here, the juvenile court indicated Minor had "sabotaged the process" of a placement within California, and left the court with virtually no choice but to follow probation's recommendation for an out-of-state placement.
Minor, however, suggests that it was legal error for the court to rely on Minor's behavior in placing him outside the state; Minor contends he "could not, through the mere fiat of non-cooperation, render the in-state California facilities unavailable or inadequate." We disagree.
In Oscar A., supra, 217 Cal.App.4th at p. 757, the juvenile court ordered a minor placed outside the state after he kept running away from in-state facilities. The appellate court held that there was no abuse of discretion because, "[g]iven [Minor's] behavioral issues, substance abuse, and multiple AWOL's, an out-of-state facility would best serve his interests and the purposes of the juvenile court law to enable him to become a law-abiding and productive member of society." (Id. at p. 758.)
Here, Minor's lack of cooperation made it impossible to place him in an in-state facility. As in Oscar A., Minor's behavior made the placement in an out-of-state facility necessary.
Minor's reliance on In re Khalid B. (2015) 233 Cal.App.4th 1285 is also misplaced. In Khalid B., the court found an abuse of discretion where probation evaluated the adequacy of just two in-state facilities and none of the facilities the minor proposed. (Id. at p. 1289.) In this case, probation looked at eight in-state facilities, including one that Minor wanted. In fact, probation was ready to place Minor in an in-state facility but Minor refused to cooperate.
Moreover, In re Nicole H. (2016) 244 Cal.App.4th 1150 does not support Minor's argument. There, the appellate court reversed the juvenile court's order placing the minor in an in-state placement that was far from home "without any evidence in the record that the placement was in her best interests." (Id. at p. 1159.) In this case, there was evidence that Minor had a gang problem; and if placed locally, was a run-away threat so he could be with his gang cohorts. Moreover, there was evidence that Glen Mills had the "best gang program available in the country" and afforded Minor the "the best chance for . . . success."
The juvenile court, when making its decision, went into depth in explaining why it was placing Minor in an out-of-state facility. The court stated:
"The defense argues that probation failed to screen the minor for a location that is local and the proposed location, which is 2,649 miles away, fails to meet the ultimate goal of reuniting the minor with his family. These arguments have no merits. [¶] First, probation did screen the minor for local placement but the minor sabotaged the process. [¶] Second, the goal of [the] juvenile court is to rehabilitate the minor and to protect the safety of the community. Family reunification is important, but the minor must first undergo rehabilitation before reunification can occur. Thus, defense's argument on this point is premature. [¶] Having considered the probation's memoranda of August 24, 2017 and September 12, 2016, the NAR packets, and the testimony of PO Paganini and Thomas, the testimony of the minor, his mother and sister, the Court finds that probation acted appropriately in selecting the most suitable placement for the minor. This is based on Supervisor Paganini's testimony that his department reviewed, evaluated, and considered the minor's history and needs.
"In accordance with W&I section 727 (e), the Court affirms probation's recommendation. In reaching this conclusion, the Court has taken into account the minor's refusal to cooperate in the screening process with local facilities because of Ms. Chowdhry's promise this minor that he would be placed locally.
"By refusing to cooperate with probation, the minor sabotaged his chance of getting placed as close to home as possible, which was what this Court would like to see happen. However, the Court is aware that if no suitable, local placements are available, the minor will have to be placed out-of-state. The court has taken into consideration the physical separation from the family and the [e]ffects it may have on the minor and his family if the child is placed out-of-state. The court has taken into consideration least restrictive means by requesting probation to rescreen the minor in a local facility."
"Based on this record, the Court also finds that a local placement facility is unavailable due largely to the minor's own action in sabotaging local placement. Therefore, the Court affirms the probation recommendation."
Under the circumstances of this case, which the juvenile court carefully considered, we discern no abuse of discretion. The juvenile court properly ordered out-of-state placement for Minor.
DISPOSITION
The juvenile court's placement order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.