Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County No. TJ 16657, Charles Q. Clay, Judge.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Paul M. Roadarmel Jr., Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Minor Christian W. appeals from the order declaring him a ward of the juvenile court pursuant to Welfare and Institutions Code section 602. Christian contends: (1) the court failed to make a section 241.1 determination as to whether he should be a ward of the court under section 602 or a dependent of the court under section 300, and (2) the joint assessment report concerning Christian was incomplete and thus the order must be reversed and remanded. As we shall explain, Christian waived his complaint with respect to the sufficiency of the joint assessment report. Furthermore, in our view, the record supports the conclusion that the court did exercise its discretion under section 241.1 in determining Christian was a section 602 delinquent and Christian waived any claim with respect to the court’s failure to state its section 241.1 finding on the record. Accordingly, we affirm.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SYNOPSIS
A petition filed pursuant to section 602 alleged Christian (then 16 years old) came within that section by committing second degree robbery. According to the detention and probation reports, Christian approached another minor as she was walking home from school, struck her in the face and stole her cell phone. Christian was arrested and ordered detained in juvenile hall pending the adjudication and disposition.
The probation officer’s report and section 241.1 joint assessment indicated that at the time of the offense, Christian was a dependent of the juvenile dependency court under section 300. The report further disclosed that the probation officer and DCFS case worker conferred, and agreed that if the if the robbery count in the section 602 petition was sustained, Christian would be ineligible for a joint supervision status with the DCFS and the probation department. The case worker and probation officer agreed that Christian would have to be reclassified as a “602 child” and the DCFS jurisdiction terminated. In the “analysis and plan” section of the report it stated:
The probation report disclosed that Christian and his sibling had been declared dependents under section 300, subdivision (b) as a result of their mother’s mental health and emotional problems which resulted in her hospitalization, making her unable to care for her children. At the time of his arrest, Christian was in long term foster care living in a DCFS group home. Prior to his placement in a group home Christian had been residing in a foster home, but had been removed because of “unwanted” behaviors.
At the contested adjudication hearing, after the victim testified as to the circumstances of the robbery count, the court found the charge to be true and found Christian to be a person described under section 602.
The court then proceeded to the disposition, indicating that it had read and considered the probation report and joint assessment, including the recommendation for suitable placement under section 602. The court also indicated it was incorporating the report and assessment into evidence. When asked to respond Christian’s counsel stated: “I also agree that the suitable placement would be beneficial to the minor . . . .” Christian’s legal guardian then addressed the court and requested that Christian continue to receive therapeutic behavior support services so that he could manage his “anger problem.” The court ordered Christian to be declared a ward of the court under section 602 and that “custody of the minor be taken from the parents and guardians, and that he be committed to the care, custody and control of the probation officer for suitable placement as detailed in the juvenile court’s suitable placement order form.” The court proceeded to describe the conditions and terms of the placement. Thereafter Christian’s counsel asked for an assurance that Christian would receive the same independent living services that he was receiving as a dependent under section 300. The court responded that the services were available to any minor “that’s been in placement whether a 602 or 300 ward. So those services will continue to be available to him.”
Christian timely appeals.
DISCUSSION
On appeal Christian argues that the court’s order must be reversed and the matter remanded because the court failed to make a determination under section 241.1 as to which status -- section 300 dependency status or section 602 delinquency status -- was appropriate for Christian. He complains that the error is not simply that the court failed to explain its rationale for choosing delinquency status over dependency status, but instead that the court did not exercise its discretion in determining his status. Christian further complains that the assessment prepared was insufficient because it failed to contain a statement by Christian’s counsel pursuant to California Rules of Court, rule 5.512 and that upon remand a new assessment is required.
Section 241.1 provides in pertinent part: “Whenever a minor appears to come within the description of both Section 300 and Section 601 or 602, the county probation department and the child welfare services department shall . . . initially determine which status will serve the best interests of the minor and the protection of society. The recommendations of both departments shall be presented to the juvenile court with the petition that is filed on behalf of the minor, and the court shall determine which status is appropriate for the minor.” (§ 241.1, subd. (a).)
California Rules of Court, rule 5.512 provides:
Here the parties agree the juvenile delinquency court assessing the section 602 petition had to decide whether Christian should be treated as a dependent or a delinquent because it was acting on the petition which created the potential for dual jurisdiction. (In re Marcus G. (1999) 73 Cal.App.4th 1008, 1013 [Where the potential for dual jurisdiction arises because a second petition is filed regarding a minor already within the juvenile court's jurisdiction, the court presented with the second petition shall make the necessary determination].) Section 241.1 provides that when a minor appears to come within the description of both sections, the county welfare department and the county probation department must make a joint recommendation of which status will best serve the interests of the minor and of society. This joint recommendation is reported to the court, and the court must then decide which status is appropriate for the minor. (§ 241.1, subd. (a).) Section 241.1 does not, however, require the court conduct a separate hearing on the status determination nor does it require the court to state its reasons on the record for making the determination. (In re Henry S. (2006) 140 Cal.App.4th 248, 257.) This notwithstanding, “a specific decision is required from the court as to which type of jurisdiction it will exercise over a minor. Even where the court has actually adjudicated a minor to be a ward of the delinquency court, dependency proceedings may not be dismissed absent such a finding.” (Los Angeles County Dept. of Children & Fam. Services v. Superior Court (Jaime M.) (2001) 87 Cal.App.4th 320, 325-326 (Jaime M.).) “[S]uch a determination must be made clearly and carefully. A determination as important as [the minor’s] status before the court cannot be implied from a few statements made during an ex parte hearing on placement.” (Id. at p. 326.)
Under rule 5.512, on the request of the child, parent, guardian, or counsel, or on the court’s own motion, the court may set a hearing for a determination under section 241.1. If such a hearing is conducted it must occur before the jurisdictional hearing and after the hearing the court must “make a determination regarding the appropriate status of the child and state its reasons on the record or in a written order.” (Cal. Rules of Court, rule 5.512(a)(4), (e) & (g); see In re Henry S., supra, 140 Cal.App.4th at p. 257.) Here it does not appear that any party (or the court on its own) requested a separate hearing on the status determination prior to the adjudication hearing or at any other point.
In Jaime M. the Court of Appeal concluded that a section 241.1 determination could not be implied from the court’s comment during an ex parte hearing concerning temporary placement of the minor (already section 300 dependent) with DCFS in children’s center rather than juvenile hall pending adjudication and disposition of a section 602 petition. (Id. at pp. 323-326.)
As a preliminary matter, respondent asserts Christian has waived any complaint about the status determination and the sufficiency of the joint assessment by failing to raise them below. To the extent Christian complains that the joint assessment failed to include a statement from his counsel, respondent is clearly correct. Numerous courts have found that a minor’s failure to object forfeits review of objections to the adequacy of -- indeed, lack of -- various assessment reports in juvenile proceedings. (E.g., In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [failure to obtain assessment report required by section 366.26]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [failure to request bonding study]; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [failure to object to adequacy of assessment].) We discern no reason why this rule should not apply here as to the claim concerning the sufficiency of the assessment. Thus, Christian waived his complaint concerning the omission of his counsel’s statement in the joint assessment by failing to object to the adequacy of that report below.
This notwithstanding respondent’s assertion of waiver as to the status determination warrants closer scrutiny. Here Christian characterizes his complaint concerning the status determination as a failure of the court to exercise its discretion; and the complete failure to exercise its discretion is not forfeited by failing to raise it in the trial court. (See In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1182.) “‘[A] ruling otherwise within the trial court's power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations.]’ [Citation.] ‘Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. [Citations.]’ [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899, 912.)
However, this case does not resemble the situation where the court completely fails to exercise the discretion conferred by the law. Indeed, there is no indication in the record that the court believed it lacked discretion with respect to the status determination. On the contrary, the court appeared to appreciate Christian’s status under both section 602 and section 300. At the disposition hearing which immediately followed the adjudication, the court declared Christian to be a ward of the court under section 602 and stated that “custody of the minor be taken from the parents and guardians, and that he be committed to the care, custody and control of the probation officer for suitable placement as detailed in the juvenile court’s suitable placement order form.” Prior to making this determination the court acknowledged that it had read and considered the joint assessment, which not only disclosed and described Christian’s status under section 300, but also explained why, in the view of the case worker and probation officer, the section 300 placement was not successful and Christian would benefit from a reclassification. The court also heard from Christian’s guardian concerning the minor’s experiences as a dependent and heard from Christian’s counsel who concurred in the placement recommendation. In addition the court made comments to Christian’s counsel concerning the services available to Christian as a delinquent from which one could reasonably infer that the court and the parties understood that in exercising delinquency jurisdiction, Christian’s status as a section 300 dependent would end. While it is true the court did not expressly declare its choice between delinquency jurisdiction and dependency jurisdiction nor did the court express its rationale for its determination, we are not convinced that court failed to exercise its discretion in making its determination.
Unlike the situation presented in Jaime M., the court’s determination in this case was not made at an ex parte hearing concerning a temporary placement issue unrelated to section 241.1. Here all parties were present and participated in the hearing. As the joint assessment and the discussion between the court and counsel at the hearing show, the parties and the court understood the matters at issue. Although it would have been better if the court had made an express finding referring to section 241.1 and its exercise of discretion, where a statute neither requires an express finding nor contains any sanction for noncompliance, the general rule is “‘that a trial court is presumed to have been aware of and followed the applicable law.’” (Cf. People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
In our view the court’s error here was not, as Christian posits, the failure to exercise its discretion in the first instance, but instead a failure to make a clear finding on the issue and to state a choice on the record, and such an error is subject to the principles of waiver because it could have been easily prevented and corrected if it had been timely called to the court’s attention. His counsel could have pointed out that the record did not clearly reflect the court’s finding under section 241.1, but instead Christian’s counsel acquiesced to the placement recommendation.
In any event, the court’s error in failing to make explicit its determination that Christian would benefit from the status as a section 602 delinquent rather than the status as a section 300 dependent, as required by the statute, is subject to harmless error analysis. (See In re Jose (1983) 148 Cal.App.3d 55, 61 [applying harmless error analysis to the court’s failure to explicitly find that Youth Authority commitment would benefit the minor].) In our view, based on this record there is nothing to suggest that Christian would have obtained a more favorable outcome absent this error. There was sufficient evidence in the record to support the court’s determination that Christian’s reclassification as a section 602 delinquent was appropriate and beneficial.
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P.J., ZELON, J.
“(a) Joint assessment requirement (§ 241.1)“Whenever a child appears to come within the description of section 300 and either section 601 or section 602, the responsible child welfare and probation departments must conduct a joint assessment to determine which status will serve the best interest of the child and the protection of society.
“(1) The assessment must be completed as soon as possible after the child comes to the attention of either department.“(2) Whenever possible, the determination of status must be made before any petition concerning the child is filed.
“(3) The assessment report need not be prepared before the petition is filed but must be provided to the court for the hearing as stated in (e).“(4) If a petition has been filed, on the request of the child, parent, guardian, or counsel, or on the court’s own motion, the court may set a hearing for a determination under section 241.1 . . . [¶]
“(d) Joint assessment report“The joint assessment report must contain the joint recommendation of the probation and child welfare departments if they agree on the status that will serve the best interest of the child and the protection of society, or the separate recommendation of each department if they do not agree. The report must also include:
“(1) A description of the nature of the referral;“(2) The age of the child;
“(3) The history of any physical, sexual, or emotional abuse of the child;“(4) The prior record of the child’s parents for abuse of this or any other child;
“(5) The prior record of the child for out-of-control or delinquent behavior;“(6) The parents’ cooperation with the child’s school;
“(7) The child’s functioning at school;“(8) The nature of the child’s home environment;
“(9) The history of involvement of any agencies or professionals with the child and his or her family;“(10) Any services or community agencies that are available to assist the child and his or her family;
“(11) A statement by any counsel currently representing the child; and“(12) A statement by any CASA volunteer currently appointed for the child.
“(e) Hearing on joint assessment“If the child is detained, the hearing on the joint assessment report must occur as soon as possible after or concurrent with the detention hearing, but no later than 15 court days after the order of detention and before the jurisdictional hearing. If the child is not detained, the hearing on the joint assessment must occur before the jurisdictional hearing and within 30 days of the date of the petition. The juvenile court must conduct the hearing and determine which type of jurisdiction over the child best meets the child’s unique circumstances. . . .[¶]
“(g) Conduct of hearing“All parties and their attorneys must have an opportunity to be heard at the hearing. The court must make a determination regarding the appropriate status of the child and state its reasons on the record or in a written order. [¶] . . .” (Cal. Rules of Court, rule 5.512.)