Opinion
F062376 Super. Ct. No. 05CEJ601612-3
02-16-2012
In re P.Y., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. P.Y., Defendant and Appellant.
Eloy I. Trujillo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J., and Poochigian, J.
APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell, III, Judge.
Eloy I. Trujillo, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, P.Y., a minor, admitted allegations set forth in a juvenile wardship petition (Welf. & Inst. Code, § 602) that he committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and that in committing that offense he personally used a firearm (Pen. Code, § 12022.53, subd. (b)). Subsequently, at the disposition hearing, the juvenile court ordered appellant committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), formerly known as the California Youth Authority (CYA). Also at the disposition hearing, the court found that appellant was "not an individual with exceptional educational needs."
On appeal, appellant challenges (1) the court's finding that appellant was not an individual with exceptional educational needs, and (2) the court's failure to order further evaluation to determine if appellant would qualify as such an individual.
FACTUAL BACKGROUND
Except as otherwise indicated, information in this section is taken from the report of the probation officer.
Appellant is in the ninth grade. In the first quarter of the 2010/2011 school year, he earned one "C" and four "F's." There was no grade reported for one class. In summer school in 2010, he earned one "A," one "B" and four "C's." From August 19, 2010, through October 12, 2010, appellant had 49 "period unexcused absences" and 33 "period tardies"; in summer school he had no unexcused absences out of the 26 days he was enrolled; and in the 2008/2009 school year, he had 29 unexcused absences out of 148 days enrolled.
According to school records, appellant "is not a special education student." School records also indicate that since the first grade appellant has been suspended from school 14 times for various reasons, including fighting, threatening to cut another student with scissors, and bringing a knife to school, and that he was "counseled" on several occasions for gang-related activity. Appellant stated he was "affiliated" with the "'Bulldogs'" gang. In the instant case, appellant "pointed a revolver at a store owner and demanded money from him."
According to a DJJ intake officer, at DJJ appellant would undergo "a battery of assessments"; and a "personalized program," which would include education, would be prepared for him.
Appellant admitted using marijuana on a daily basis and methamphetamine once a week. He stated that he used both substances on the day of his arrest in the instant case.
A psychological evaluation report (PER), prepared by Lindsay N. Prezell, M.A., "AIU Practicum Student," under the supervision of clinical psychologist Edwyn W. Ortiz-Nance, Psy.D., and submitted to the court, states the following. Appellant was approximately one month shy of his sixteenth birthday at the time of the evaluation. During the "testing process," appellant "displayed severe deficits in abstract reasoning and his ability to manipulate complex subjective material." One of the tests administered had to be stopped due to appellant's inability to understand the questions, which are written at a sixth-grade level.
The remainder of this section is taken from the PER.
Appellant reported he "did not start school when he was supposed to ...." Appellant's father stated that when appellant was approximately nine years old, he "had been missing more than 80 days of school per year because his mother did not ensure that he went."
On the Wechsler Abbreviated Scale of Intelligence, a "nationally standardized intelligence test," appellant scored "in the Extremely Low category" on the three areas covered by the test: "Verbal, Performance and Full Scale IQ ...." Other testing indicates that appellant suffers from "Conduct Disorder, Childhood Onset Type."
The summary section of the PER states: "[Appellant] is an emotionally unbalanced, low-functioning adolescent with severe anger and impulsivity issues. [His] chronological and maturational age are incongruent[,] suggesting an immaturity and social functioning well below his age. [His] assessment results suggest he is functioning in the mild mental retardation range of intelligence .... [Appellant] did not receive a proper education until he was 9 years old which has put him significantly behind academically."
The PER "highly recommend[ed]" "[f]urther in depth intellectual testing" and "retest[ing] to get a more in-depth, true registration of [appellant's] cognitive deficits and to determine if there are any learning disabilities present."
DISCUSSION
Statutory and Regulatory Background
Education Code section 56000 declares that "all individuals with exceptional needs have a right to participate in free appropriate public education" (§ 56000, subd. (a)), and states, "[i]t is the ... intent of the Legislature to ensure that all individuals with exceptional needs are provided their rights to appropriate programs and services which are designed to meet their unique needs under the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.)" (§ 56000, subd. (d)). "Individuals with exceptional needs" means those persons who meet each of the several requirements enumerated in section 56026, including that such persons be "[i]dentified by an individualized education program team as a child with a disability, as that phrase is defined in [the specified portion] of the United States Code" (§ 56026, subd. (a)) and that "[t]heir impairment, as described by subdivision (a), requires instruction and services which cannot be provided with modification of the regular school program" (§ 56026, subd. (b)). Title 20 United States Code section 1401 defines "child with a disability" as a child "with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as 'emotional disturbance'), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and ... who, by reason thereof, needs special education and related services." (20 U.S.C., § 1401(3)(A).) Subdivision (e) of section 56026, provides: "Unless disabled within the meaning of subdivisions (a) to (d), inclusive, pupils whose educational needs are due primarily to limited English proficiency; a lack of instruction in reading or mathematics; temporary physical disabilities; social maladjustment; or environmental, cultural, or economic factors are not individuals with exceptional needs."
Except as otherwise indicated, all statutory references are to the Education Code.
Section 56001 provides that "[i]t is the intent of the Legislature that special education programs provide [inter alia]: [¶] ... [¶] [that] (e) [e]ach individual with exceptional needs shall have his or her educational goals, objectives, and special education and related services specified in a written individualized education program." (§ 56001, subd. (e).) An individualized education program (IEP) is a written statement for children with a disability that includes, among other information, (1) a statement of the child's present level of educational performance, including how the child's disability affects the child's participation and progress in the curriculum; (2) a statement of measurable annual goals, including benchmarks, or short-term objectives, for meeting the child's educational needs; (3) a statement of the special educational and related services the child will receive; and (4) an explanation of the extent to which the child will not participate in regular education programs. (20 U.S.C., § 1414(d)(1)(A).) When a child has an IEP and the court orders the child committed to the DJJ, the child cannot be conveyed to the DJJ until the IEP has been furnished to the DJJ. (Welf. & Inst. Code, § 1742.)
Contentions and Analysis
It appears that appellant's argument consists of two parts. First, he argues that the court erred in finding that he was not an individual with exceptional needs, within the meaning of section 56026. There is no merit to this contention. As indicated above, under section 56026, a child, in order to qualify as an individual with exceptional needs, must first be assessed by an IEP team and found to have a disability. There is no evidence in the record that appellant was ever assessed and determined to be an individual with exceptional educational needs.
Appellant also argues that the court erred in failing to order an assessment to determine if appellant has special educational needs. Appellant bases this argument on In re Angela M. (2003) 111 Cal.App.4th 1392 (Angela M.).
In that case, the minor, Angela, admitted violating probation granted in a prior wardship proceeding, and the juvenile court ordered her committed to the CYA. However, the court-appointed psychologist who examined Angela recommended placement and treatment in a psychiatric/treatment-based facility. He opined that Angela was suffering from bipolar disorder and appeared to exhibit symptoms of ADHD. He also "specifically recommended that Angela 'undergo an IEP'—that is, that she be evaluated by education professionals to determine whether she had special educational needs." (Angela M., supra, 111 Cal.App.4th at p. 1399.) The appellate court stated that, based on this evidence, "[t]he juvenile court ... was clearly on notice that Angela may have special educational needs." (Id. at p. 1398.) Further, the court held, "prior to committing Angela to the CYA, the juvenile court had a duty to consider or determine whether Angela had [such] needs." (Ibid., fn. omitted.) The court based this holding on (1) former California Rules of Court, rule 1493(e)(5), which "implement[ed] [the] legislative mandate to provide free special education services to all eligible children by directing that the juvenile court, when declaring a child a ward of the court, 'must consider the educational needs of the child'" (Angela M. at p. 1398, fn. omitted), and (2) former California Standards of Judicial Administration section 24(h), "which provide[d] that the juvenile court should '(1) Take responsibility, with the other juvenile court participants at every stage of the child's case, to ensure that the child's educational needs are met . . . .'" (Angela M. at p. 1398, fn. 5.)
All rule references are to the California Rules of Court.
Effective January 1, 2004, the Judicial Council of California removed the requirement from former rule 1493(e)(5) that the juvenile court "'must consider the educational needs of the child.'" However, former section 24(h) of the California Standards of Judicial Administration has been redesignated Standard 5.40(h) and remains in effect; the Standards of Judicial Administration are part of the Rules of Court (rule 1.4(b)); and rule 5.651(b)(2), which became effective in 2008, provides that in any disposition hearing in a juvenile wardship proceeding, the juvenile court must, inter alia, "address and determine the child's general and special education needs Thus, as the People do not dispute, at all times relevant here, as at the time Angela M. was decided, in fashioning the disposition order the juvenile court was required to consider appellant's educational needs.
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The court found that the psychologist's report "plainly indicates additional information is needed before a proper determination of Angela's educational needs can be made," and concluded: "Although the record indicates special attention to Angela's education needs was appropriate, the juvenile court did not mention this issue when committing her to the CYA. Remand is necessary to permit the juvenile court to make proper findings, on a more fully developed record, regarding Angela's educational needs." (Angela M., supra, at p. 1399, fn. omitted.) Specifically, the court ordered that on remand the juvenile court was "to determine whether an evaluation of Angela's special educational needs should be conducted ...." (Id. at p. 1399.)
The People seek to distinguish Angela M. on the basis that there, unlike the instant case, the court failed to make a finding that the minor was an individual with exceptional needs, as that term is defined in section 56026. However, the fact that appellant does not have an IEP, and thus had not yet been determined to be a child with a disability for whom special education services are necessary, does not answer the question of whether further evaluation would reveal that appellant is a person in need of special education services.
As in Angela M., the record in the instant case contains an uncontradicted psychological report suggesting the possibility of a disability—in this case, mental retardation—in addition to evidence of extremely poor academic performance, and thus, in the words of Angela M., "plainly indicates additional information is needed before a proper determination of [the minor's] educational needs can be made...." (Angela M., supra, at p. 1399.) Admittedly, the record is also replete with evidence consistent with the conclusion that appellant scored in the range indicating mild mental retardation not because of that condition, but rather because of factors such as "lack of instruction[,] ... social maladjustment, . environmental, cultural, or economic factors" that would establish that appellant, despite his educational needs, is not an "individual[] with exceptional needs." (§ 56026, subd. (e).) However, just as the psychologist who evaluated Angela recommended further evaluation, and that Angela "undergo an IEP," in the instant case the recommendation was also for further evaluation, in the form of "[f]urther in depth intellectual testing" and "retest[ing]" to determine whether appellant's test results were the result of "cognitive deficits" and/or "learning disabilities."
However, the Legislature has declared its "intent ... to insure an appropriate educational program for wards committed to the [DJJ]" (Welf. & Inst. Code, § 1120, subd. (a)) and, to effectuate that intent, has required that DJJ conduct its own assessment of appellant's educational needs upon commitment and at least annually thereafter (Welf. & Inst. Code, § 1120, subd. (b)). Therefore, appellant did not suffer any prejudice from the juvenile court's failure, if any, to consider his educational needs before committing him to the DJJ, or from the court's failure to order an assessment of appellant's educational needs.
DISPOSITION
The judgment is affirmed.