Opinion
E075778
05-07-2021
In re S.O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.O., Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J265775) OPINION APPEAL from the Superior Court of San Bernardino County. Pamela P. King, Judge. Affirmed. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant, S.O. (minor), absconded from his juvenile delinquent placement for 18 months before he was apprehended. After minor admitted violating his probation, the juvenile court ordered minor into placement as recommended by the probation department.
After defense counsel filed a notice of appeal, this court appointed counsel to represent minor. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and two potentially arguable issues: (1) whether the juvenile court abused its discretion in ordering minor into a suitable placement; and (2) whether the juvenile court abused its discretion by including in the dispositional order language implicating the long since dismissed dependency matter. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The juvenile court declared minor a dependent of the court on January 26, 2016, as a result of physical abuse by his stepfather and his mother's failure to protect him, and placed him in a foster home. (In re S.O. (2020) 48 Cal.App.5th 781, 784.) On June 5, 2016, the victim, minor's six-year-old foster brother, screamed out in pain after minor sodomized him. The victim reported that minor had sodomized him on a number of previous occasions.
On June 7, 2016, the People filed a juvenile wardship petition alleging minor (born Jan. 2003) had committed two counts of a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts 1 & 3), and two counts of sodomy of a person under the age of 16 years (Pen. Code, § 286, subd. (b)(2); counts 2 & 4). On June 29, 2016, minor admitted the count 2 and count 4 allegations as amended. In return, the People agreed to the court's dismissal of counts 1 and 3. The juvenile court found the allegations true and referred the matter for a Welfare and Institutions Code section 241.1 committee review and recommendation.
The People moved to amend the count 2 and count 4 allegations to violations of Penal Code section 286, subdivision (b)(1). The People also moved to reduce the count 4 allegation to a misdemeanor pursuant to Penal Code section 17, subdivision (b). The court granted the motions.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The committee recommended that, if declared a ward of the court, minor be subject to dual status supervision with San Bernardino Children and Family Services (CFS) as the lead agency. The juvenile court declared minor a ward of the court subject to dual status supervision with CFS as the lead agency. Minor was placed in Saving Another Manchild Services, Inc., (SAMS) group home on probationary terms.
SAMS "is an 18-month 'residential therapeutic sexual assault program for juvenile perpetrators and victims.'" (In re S.O., supra, 48 Cal.App.5th at p. 784, fn. 5.) --------
On June 6, 2017, the juvenile court terminated mother's reunification services as to minor. On December 5, 2017, the court ordered minor's permanent plan to include placement at SAMS, "with a specific goal of independent living with the identification of a caring adult to serve as a lifelong connection for him."
On April 26, 2018, the People filed a juvenile wardship petition alleging minor had absconded from SAMS, thereby violating a term of his probation. The juvenile court issued a warrant for minor's arrest. Minor apparently returned to custody but "AWOL'd, again, on" June 3, 2018, and the juvenile court issued another warrant for his arrest.
On September 5, 2018, minor called personnel at SAMS requesting to be picked up. Personnel picked him up the next day.
In a probation report prepared October 15, 2018, the officer noted: "Given the extensive amount of time the youth has been at SAMS, he should have almost completed their sex offender treatment program. Due to the youth occasionally refusing counseling and testing positive for marijuana on multiple occasions, he has not been able to advance to the second level of his four (4) level program." The officer recommended minor be "continued a ward of the Court under Dual Status with CFS continued as lead agency." On November 26, 2018, the juvenile court granted the People's motion to dismiss the petition alleging a violation of minor's probation.
On February 25, 2019, the People filed another juvenile wardship petition alleging minor had violated the terms of his probation by absconding from SAMS again on February 20, 2019. The juvenile court issued an arrest warrant.
"Effective April 30, 2019, San Bernardino County became a single status county . . . . (§ 241.1, subd. (d) . . . .)" (In re S.O., supra, 48 Cal.App.5th at p. 785.) Because of the change, in June 2019, CFS moved to dismiss minor's dependency matter. (Ibid.)
At a hearing on June 25, 2019, minor's counsel objected to the dismissal on the grounds that minor had not received any notice of the hearing because he had been on "'bench warrant status in 602 court since February 25, 2019.'" (In re S.O., supra, 48 Cal.App.5th at p. 785.) Thus, dismissal of the dependency case would "'amount to a lead change'" without notice, in minor's absence, and that "'[w]e have no idea what probation's position would be' since there was no committee report." (Ibid.) In response, CFS informed the juvenile court that it had met with the probation department and the district attorney's office to discuss which agency would be appropriate in dual status cases postdissolution of dual status jurisdiction; however, CFS maintained its independent authority to seek dismissal of any dependency matter. (Ibid.)
The juvenile court rejected the deficient notice argument, stating "'the fact that [minor] is AWOL right now and is not able to receive direct and personal notice of the hearing does not mean the hearing cannot go forward because his counsel is here, and his counsel has been provided that notice. And he is AWOL with existing warrants on both sides of the fence, [sections] 602 and 300.'" (In re S.O., supra, 48 Cal.App.5th at p. 785.) The juvenile court granted the motion and dismissed the dependency matter. (Id. at pp. 785-786.)
Minor's counsel appealed that decision, contending the juvenile court abused its discretion in modifying jurisdiction by failing to obtain a "'section 241.1 dual status report addressing the advisability of a modification to single jurisdiction under' section 602 and, thus, failing to make 'a reasoned determination' of [minor's] best interests." (In re S.O., supra, 48 Cal.App.5th at p. 784.) By published opinion filed May 4, 2020, we affirmed the juvenile court's decision holding that no joint recommendation report for dismissal of the dependency action was required and, even if one was required, any error was harmless "given the court's broad discretion in determining [minor]'s status—dependent or ward—and the ample information on which the court based its decision." (Id. at p. 791.)
On July 20, 2020, officers contacted minor at a park in Lake Elsinore. After the officers conducted a records check, which revealed minor had an active warrant, they arrested him. On July 22, 2020, the juvenile court detained minor and ordered the matter referred to the section 241.1 committee for review and recommendation. On August 5, 2020, minor admitted violating the terms of his probation as alleged in the petition. The juvenile court found the allegation true, took jurisdiction, and referred the matter to probation for a disposition report.
In its report filed August 18, 2020, the probation officer noted that minor had been living with his girlfriend, with whom he had a child, for the past 18 months. Minor's girlfriend's mother, with whom they lived, wanted minor to continue living with her. Minor, likewise, thought he should be able to continue living with his girlfriend.
The probation officer reported that minor had not completed his placement program, which included his sex offender treatment program. The probation officer opined that minor posed a threat to his nine-month-old child: "The youth needs parenting classes and counseling [to] help him cope with his sexual tendencies." The probation officer recommended minor be released to probation for placement in a suitable foster care facility on modified terms and conditions of probation.
In a probation memorandum filed September 2, 2020, the probation officer recommended minor undergo a psychological evaluation "to assess the youth for appropriate sex offender treatment program goals." At the contested disposition hearing on September 4, 2020, the probation officer testified minor should be returned to placement because he had not even completed the first phase of his four phase sexual treatment program and had continued to smoke marijuana.
Minor's girlfriend testified they started dating in October 2018, and he moved in with her family in January 2019. Both of them stopped attending school after he moved in. She further testified minor would never hurt their child. Minor's girlfriend's sister also testified minor would never hurt his child. Minor's girlfriend's mother testified she would like minor placed with her.
Defense counsel argued minor should be placed with his girlfriend's family. The court noted, "I'm aware of the fact the [section] 300 case has been terminated," and took the matter under submission. On September 14, 2020, the court ordered minor into placement as recommended by probation, and stated: "The reunification plan is appropriate, reasonable, and likely to be successful in alleviating the cause that brought the matter before the Court." "The willingness and/or ability of the parents or guardian to control the minor's activities needs to be strengthened before the minor can be safely returned to th[ier] custody."
II. DISCUSSION
We offered minor an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. I concur: MILLER
J.
RAPHAEL, J., Dissenting.
As the opening brief in this appeal raises no issues, we should dismiss it as abandoned, in a brief order. (People v. Scott (2020) 58 Cal.App.5th 1127.)
Several years ago, the minor in this case admitted the charges in his wardship petition. (Maj. Opn., ante, at pp. 2-3.) In 2020, he admitted a probation violation based on his absconding from a group home, and the trial court placed him in a program as the probation office recommended. He took this appeal from the placement order.
When counsel can raise no issues, we are required to perform an independent review of the record only in "the first appeal of right in a criminal prosecution." (People v. Serrano (2012) 211 Cal.App.4th 496, 501.) Routine independent review of uncontested postjudgment cases is "wholly unproductive and a waste of scarce judicial resources." (Id. at p. 503.) Thus, where neither the lawyer nor the client can find an issue to raise, it typically is wise to simply "dismiss the appeal as abandoned." (Id. at p. 504.)
Minor's counsel raises no issues. Today's opinion discusses no issues. The opinion is eight pages without a reason to exist. One can say nothing much more succinctly.
Because I would summarily dismiss the appeal, I respectfully dissent.
RAPHAEL
J.